P L D 1980 Karachi 199 (PLP)

Z. A. CHANNA, J.-The appellant, who has been sentenced by the learned Sessions Judge, Khairpur, to death for the-- murder of one Nazir, to 5 years' R. I. for attempting to commit murder of Shah Muhammad alias Shahan, and to 3 years' R. 1. for going armed with an unlicensed fire-arm, has come up in appeal to us against his convictions and the sentences awarded to him. We have also before us a reference from the learned Sessions Judge for confirmation of the death sentence awarded by him to the appellant. This judgment will dispose of both the appeal preferred by the appellant and the reference made by the learned Sessions Judge for confirmation of the death sentence.

2. The prosecution case, shortly stated, is that deceased Wazik Khan was married to Mst. Kamala, the daughter of first informant Kirir. The deceased was putting up with his father-in-law, Kirir, and his brother-in-law, Niaz Hussain, in the house of Kirir in Deh Bozdar No. 30, Taluka Khairpur. Mst. Karnali was originally residing in Lundi Tori, District Sukkur, and was co-villager of the appellant. As the appellant had been seen hovering around the house of Mst. Kamala, her husband, Wazir, suspected that he was having an illicit affair with her.

3. On 10-7-1974, which was the day of the unfortunate incident, at .about 6-00 p.m., Wazir spied -the deceased lurking behind some `Laws' bushes close to his house. He thereupon give a `Hakal' to the appellant, who took to his heals. Wazir, Kirir and Niaz Hussain thereupon set out in chase of the appellant. Wazir, who was in the lead, was about to close upon the appellant, when the latter, who was armed with a single-barreled gun, fired at Wazir, hitting him in the region of the abdomen. Wazir fell dead on the ground about 100 paces away from his house. Despite this, Kirir and Niaz Hussain- continued the chase. They were first joined by Mir Muhammad. Alidinno Mirbahar and Shah Muhammad Mirbahar. Later, others also joined in the chase. Ultimately, the appellant was apprehended by Shah Muhammad and Alidinno with the assistance of the other pursuers, at a distance of about ope furlong from the place where Wazir had been fatally hit. In the struggle, not only the gun of the appellant got broken but also he sustained some injuries. The appellant was tied up and placed in the custody of Alidinno and Shah Muhammad while Kirir went on the motor-cycle of Wadero Sodho, who had been summoned and. informed of the incident, to Kotdiji Police Station, 13 miles away, where he lodged his F. I. R. the same day at 9-15 p.m.

4. S. H. O. Muhammad Hussain, after recording the F.

1. R., accompanied Kirir, to the scene of offence where he found the dead body of Wazir. He prepared mashirnama of the wardat and inquest report in the presence of mashirs Wadero Sodho and Abdul Karim. Near the dead body of Wazir, he found an empty ' 12 bore cartridge, which he seized and sealed. He then went to the place where the appellant had been apprehended and found him in custody of Sawan, Mir Muhammad and Alidinno Shah. The S. H. O. arrested the appellant and also seized the gun of the appellant which was produced before him in 3 pieces by the witnesses. The barrel of the gun was found to contain an empty cartridge, which was also separately seized and sealed by the S. H. O. The S. H. O., thereafter, recorded the statements of Alidinno, Mir Muhammad, Khawand, Niaz Hussain and Mst. Kamala. The two crime empties were sent by the S. H. O. to the Ballistic Expert alongwith the gun recovered from the appellant. The report of the Ballistic Expert is to the effect that the two crime empties were fired from the said gun.

5. The Medical Officer, Kotdiji, Syed Manzoor Hussain Shah, had performed the autopsy on the deceased and also examined the injuries on the appellant. On external examination, he found the following injuries on the deceased : "Multiple fire-arm wounds of entry on the left side abdomen upper half and epigastric region going deep inside with blood oozing cut from the wounds."

6. On internal examination the Medical Officer found that the abdominal wall and peritoneum were pierced and the? peritoneal cavity was full with blood clots. The stomach was empty and pierced, the sm4ll intestines were pierced, the large intestines contained faeces and were pierced, while the left kidney was ruptured. From the external as well as the internal examination of the dead body, the Medical Officer was of the opinion that death was due to rupture of stomach, kidney, internal haemorrhage and shock consequent upon a fire-arm injury which was sufficient in the ordinary course of nature to cause death. The Medical Officer estimated the time between the injuries and death as between 5 and 10 minutes. As regards the appellant, the Medical Officer found the following injuries on his person, which appeared to have been caused by some blunt weapon, like a Lathi : (1) A lacerated wound 2J' x I' x scalp deep on the left parietal region. (2) A lacerated wound irregular 21? x lr" x scalp deep on the head vertex medial line. (3) A lacerated wound 1? x J' x scalp deep on the right side head frontal region. (4) A lacerated wound J" x I' skin deep on the left index finger tip. (5) A contusion 2'xV on the left fore-arm lower 1/3rd with fracture of ulna. (6) Lacerated wound J' x f w skin deep on the left thigh middle 1/3rd. (7) A contusion 3' x I' on the left scapular region. (8) Abraded contusion 1J" x J" on the back middle 1/3rd. (9? A contusion 2" x 1" on the right scapular region obliquely.

7. The defence of the appellant is that he bad gone to the house of the first informant to demand money for the cattle sold by him to P. W. Niaz Hussain, but since there was no body in the house, he was returning from there, when P. W. Niaz Hussain challenged him from behind, calling him a Karo, whereupon he started running due to fear, but deceased Wazir came from the other side and in the meanwhile P. W. Niaz Hussain fired at him, but the shot missed him and instead hit deceased Wazir, and there after Niaz Hussain and others caught hold of him and give him a beating. He has denied that a gun was secured from his possession or that it belonged to him. No defence was led by him.

8. There is ample evidence of convicting nature to establish that the appellant had gone to the house of the complainant, evidently to pursue an illicit affair, and that he not only fired the fatal shot at Wazir, but also caused fire-arm injuries to Shah Muhammad. Furthermore, we are convinced that the appellant carried and used an unlicensed gun which was secured from his possession.

9. In support of their case against the appellant, the prosecution have examined as many as 5 eye-witnesses, namely, Kinr, Mir Muhammad, Niaz Hussain, Alidinno and Shah Muhammad. The last named, in spite of the fact that he had sustained injuries in the incident, and hence his participation in the incident cannot be disputed, has not supported the prosecution version, and while he has admitted that on hearing gun-shot reports and cries of "thief ! thief I", he and P. W. Alidinno had chased a man, who was running away, and had ultimately apprehended him and given him blows, and has further stated that the man whom they had apprehended was the appellant, he had expressed ignorance of the weapon carried by the appellant and further denied that the appellant had either fired at him or caused any injuries to him. In fact, he denied having sustained any injury at all. - It is quite clear that this witness has been won over had has given false testimony in order to oblige the appellant. As will be presently shown, there is irrefutable evidence that the appellant carried a gun and the same was secured from his possession. Furthermore, Medical Officer, Syed Muhammad Ali Shah, has testified that on 11-7-1974, that is, on the next day of the incident, Kotdiji police had sent him injured Shah Muhammad and on examination be found the following injuries on his person (1) A lacerated would 1/6" x 1/6? x skin deep on the right arm anteriorly lower 1/3rd. (2) An abrasion 1/2h' x 1/12' on the left middle finger dorsally.

10. The above injuries in the opinion of the Medical Officer were about 18 hours old. Thus, the estimation of the age of the injuries as given by the doctor roughly tallies with the time of the incident. Though, according to the Medical Officer, both the above injuries appeared to have been caused with a hard, blunt weapon, looking to the dimensions of the injury on the arm of the witness, we are of the view that the Medical Officer was obviously mistaken and this injury was caused by a fire-arm as testified by the other eye-witnesses.

11. We cannot conceive of any blunt weapon, other than a pellet fired from a gun which can cause an injury having dimensions of 1/6th of an inch into 1/6th of an inch and penetrating only skin deep. It is obvious that the shot was fired from a considerable distance and only one pellet struck P. W. Shah Muhammad. According to Modi, shots fired from a considerable distance normally produce wounds of smaller dimensions than even the pellet or the projectile used.

12. The exclusion of the testimony of P. W. Shah Muhammad does not in any way impair the prosecution version, as the remaining 5 eyewitnesses have fully supported the prosecution case. Of them P. W. Alidinno is an independent and disinterested witness, being not only of a different caste from that of the complainant but also residing in another village. He was one of the persons who had apprehended the appellant. He has frankly admitted that he and P. W. Shah Muhammad, while capturing the appellant, had beaten him with 'Durna' sticks though in his 164, Cr. P. C. statement he states that Lathis were used. So far as P. Ws. Kirir, Mir Muhammad and Niaz Hussain are concerned, though they are admittedly related inter se and also to the deceased, Kirir being the father-in-law and also the uncle of the deceased, Mir Muhammad being the son of complainant's sister and Niaz Hussain being the son of the complainant, we consider that they are natural witnesses, as Kirir and Niaz Hussain were residing in the same house in which the deceased was putting up .while Mir Muhammad is putting up in an adjoining house. They have been subjected to lengthy cross-examination but nothing has been brought out which would make us disbelieve or doubt their evidence. No doubt, the witnesses have contradicted themselves on the point whether two shots were fired or 3 shots were fired and the distance from the place where Wazir was killed to the place where the appellant was apprehended, but we consider that these discrepancies are of minor nature and do not affect the credibility of the witnesses on the essential features of the case, particularly in regard to the identity of the person who fired the fatal shot at Wazir and also fired at P. W. Shah Muhammad.

13. The ocular testimony receives substantial corroboration from 3 separate circumstances, namely, the apprehension of the appellant on the spot, the recovery from him of a gun, from which gun, according to the Ballistic Expert's report, the two crime empties were fired, and finally the medical evidence. All the eye-witnesses, excepting P. W. Shah Muhammad, whom we consider has brazenly tried to give obliging evidence in favour of the appellant, have deposed that they had chased the appellant for a considerable distance and ultimately apprehended him and snatched the gun which he was carrying. They have further stated that in the course of the struggle, the appellant's gun got broken. However, before they were able to apprehend the appellant, the latter had fired at P. W. Shah Muhammad and Alidinno, causing a gunshot injury to P. W. Shah Muhammad. The broken gun alongwith the appellant was produced by witnesses Niaz Hussain, Mir Muhammad, Alidinno and Shah Muhammad before the S. H. O. and mashir Wadero Sodho. According to the testimony of the S. H. O. and mashir Sodho, the barrel of the gun contained an empty cartridge. Another empty cartridge was secured by the S. H. O., in the presence of maehirs Sodho and Abdul Karim, from the place where the dead body of Wazir was lying. These two crime empties and the gun secured by the witnesses from the appellant were sent by the S. H. O. to the Ballistic Expert whose report is to the effect that they were fired from the said gun. We are not impressed with the story of the appellant that it was not he who had a gun but P. W. Niaz Hussain and it was the latter who had fired at him but the shot missed him and hit instead Wazir, who was killed. Apart from the fact that not a single witness has even faintly suggested that any one from their party carried a gun, if P, W. Niaz Hussain had in fact carried and used a , gun, as alleged by the appellant we do not see how it could have got broken. The gun could only have been broken in a struggle with the person carrying it. We are, therefore, convinced that the gun was carried by the appellant and that it was broken when he was apprehended and was attempting to struggle with his pursuers and attempted to escape from their clutches. The medical evidence further lends support to the ocular evidence. As already indicated, it shows that as many as 9 injuries were found on the person of the appellant, including a broken left forearm. This evidence further confirms the prosecution version that the appellant was chased and apprehended and in the course of the pursuit and capture, he was given Lathi blows. The F.

1. R. which was lodged with reasonable promptitude at a police station 13 miles away, mentions in some detail about the chase of the appellant, his capture with a gun and the fact that be was given lath! blows.

14. We have already referred to the motive stated in the F. I. R. which had impelled the appellant to come to the house of the complainant. The complainant as well as P. Ws. Sodho, Mir Muhammad and Niaz Hussain have testified that the appellant was suspected of having illicit relations with Mst. Kamala, the wife of Wazir, since both the appellant and Kamala hailed from the same village and previously also the appellant had been seen lurking around the house of the complainant. We are of the view that the witnesses had justification for entertaining this suspicion against the appellant, since the appellant -was armed with a gun and was seen hiding behind Lawa bushes at about sunset time. The allegation of the appellant that he had gone to the house of the complainant to demand his dues for the cattle sold by him to the complainant's son, Niaz Hussain, is stoutly denied by Niaz Hussain as well as the other witnesses. The gun carried by the appellant was admittedly an unlicensed one. If the appellant had come on a peaceful and lawful errand, there was no reason for him either to carry an unlicensed gun or to lurk behind law bushes, as stated by the witnesses.

15. There remains for consideration the important question as to what offences have been committed by the appellant. As it is established that the appellant carried and used an unlicensed gun, be was rightly convicted and sentenced under section 13(d) of the Arms Ordinance. We are, however, not satisfied that the appellant either intended to kill Wazir or attempted to murder P. W. Shah Muhammad. The shot fired at P. W. Shah Muhammad was from a considerable distance and only l minor injury on his arm was caused. Possibly, the appellant, while in flight, fired wildly, in a desperate attempt to shake off his pursuers. Hi pursuers were armed with lathis, etc. and he could expect no mercy from them. His fears were well founded for when he was captured he w mercilessly beaten. However, the apprehension of beating, or even' receiving grievous hurt, at the hands of his pursuers, would not, in our humble opinion, provide him a right of defence against his pursuers, who were justified and had a right under section 59, Cr. P. C. to apprehend him, since the appellant has "in their view" committed the offence of violently killing a person, and was also armed with an unlicensed gun-offences which were cognizable and non-bailable. We would, in the circumstances, substitute for the sentence of 5 years' R. 1. awarded by the trial Court to the appellant for the offence under section 307, P. P. C. to 2 years' R. I. under section 324, P. P. C.

16. As regards the killing of Wazir, it is an admitted position that when the deceased gave an `Hakal' to the appellant, the latter started running away, despite the fact that he was armed with a gun. This shows that the appellant had not come with the intention of committing murder. His purpose was to carry on a love affair and he had armed himself with a loaded gun only to meet any eventuality. The evidence establishes that the appellant ran for about 100 paces or more and it was only when Wazir was closing in on him that he fired at him from a distance of about 2 to 3 paces. The medical evidence confirms that the shot was fired from a very close distance, for the pelletes had entered the abdomen of the deceased in a bunch. We are, therefore, inclined to the view that the appellant did not intend to murder Wazir but fired at him in order to effect his escape. However, he must be saddled with the keen knowledge that firing from such close quarters at a person would in all probability result in his death. In confirmation Case No. 32 of 1967, a Division Bench ' of this Court, of which 1 was member, had held that the accused person, who had given a knife blow with such force to the deceased that it penetrated the chest cavity, punctured the lung and cut into his heart, in consequence of which had died on the spot, was not guilty of murder but was guilty of an offence under section 304,1 Part II, P. P. C. in view of the circumstances that the blow was given without any premeditation, in the heat of the moment and for the purpose of deterring pursuit and avoiding capture, .and consequently it was no possible to hold that the accused had the requisite intention to commit murder but could only be .saddled with the knowledge that the injuries which he was causing were likely to result in death. As we are of opinion that in the instant case the circumstances do not warrant the inference that the appellant had the requisite intention to commit murder, but can only saddled with the knowledge that his act of firing at Wazir from close quarters .was likely to result in death, we would substitute for the sentence of death .under section 302, P. P. C. awarded to him by the learned trial Court, sentence of 7 years' R. 1. under section 304, Part II, P. P. C As already indicated, we are not persuaded to the view that the applicant had any right of self-defence. On the other hand the witnesses had the right to arrest him as he carried an unlicensed gun. The evidence on record does not show that any injury was caused to him before the fatal shot was fired . at him. In fact; the appellant, in his statement has stated that it was only after Wazir was bit that P. W. Niaz Hussain and others came and gave him lathi blows. There is no evidence that Wazir carried any lathi or other weapon: Neither any such Weapon was found near him nor any witness has rotated that he carried such weapon. Accordingly, subject to the above modifications the appeal stands dismissed. The reference for confirmation of the death sentence stands rejected. a. G. D. ?????????? Order accordingly.