1980 P Cr (PLP)

2. Briefly narrated the facts of the case are that the appellant killed Sono who was elder brother of his brother‑in‑law, the acquitted accused imam Bux on 3rd March, 1973 at 5 p. m. in Deh Bachal Rahu, Taluka Sakrand, District Nawabshah. The report of the offence was lodged at Sakrand Police Station which is at a distance of 8 miles from the vardat on the same day at 8 p. m. by complainant Haji who is cousin as well as brother‑in‑law of the deceased. The report was recorded by P. W. Mohammad 1dris, Head Constable. According to the prosecution story the acquitted accused Imam Bux has been assigned the role of an instigator. It has been disclosed in the F. I. R. that the acquitted accused Imam Bux. had six brothers including the deceased who was clear in age to the acquitted 'accused. Imam Bux resided with his father‑in‑law Mooso in Deh Sobho Lund which was not liked by the deceased. Therefore, the deceased kept in insisting upon him to rejoin the family and live with his brothers. The deceased also constructed a new house and a "kot" for Imam Bux's residence. On the day of incident the household articles of Imam Bux were got removed from his in‑laws' house at the instance of the deceased and kept in the newly constructed house by the complainant P. W. Haji and P. Ws. Sultan and Mohammad Bux in the morning hours. Imam Bux refused to settle down in the newly‑constructed house upon which the deceased gave Imam Bux 2/3 slaps. Imam Bux left for his father‑in‑law's house again being annoyed with the treatment meted out to him by the deceased. At about 5 p. m. on the same day when complainant Haji and P. Ws. Sultan, Mohammad Bux were standing at the grass‑cutting machine the appellant who is brother‑in‑law of the acquitted accused Imam Bux reached there armed with a single‑barrel gun which belonged to his father. He called the deceased and he came out of the house. He was yet at some distance from him that the appellant fired gunshots by which he was injured. He succumbed to his injuries instantaneously.

3. The F.I. R. was recorded by P. W. Mohammad Idris, H. C. who reached the vardat immediately and kept guard over the dead body which was lying outside the door of the house. P. W. Abdullah, S. H. O. Sakrand, Police Station, reached the vardat on the following day in the morning hours. The complainant showed him the vardat which was situated near the house of Imam Bux in village Hamzo Khan Chandio, Deh Bachal Rahu, Taluka Sakrand. The dead body of the deceased Sono was lying at the vardat which had gunshot injuries. The blood was lying on the ground which he secured and sealed under a mashirnama. He also secured four empty cartridges from the vardat under a mashirnama in the presence of mashirs P. Ws. Rafiq and Haji Babu. He also prepared inquest report of the‑ dead body in the presence of the same mashirs. He then proceeded to the village of the appellant and arrested him from there and prepared a mashirnama of his arrest which was signed by the same mashirs. The appellant volunteered to produce a single barrel gun which he had concealed under the beddings kept on a cot in a room of his house. The appellant led the S. H. O. and mashirs inside his house in the room and from underneath the beddings kept over the cot he produced a single barrel gun and two live cartridges. He prepared mashirnama of the gun and cartridges and also challaned the appellant separately under section 13‑D of the Arms Ordinance for using unlicensed gun. On 5th March, 1973 he got the judicial confession of the appellant recorded by Mukhtiarkar and F. C. M. Sakrand. ' He also arrested the acquitted accused Imam Bux on the same day and prepared a moshirnama of his arrest which was signed by the same mashirs. After completing the investigation he submitted the challan in the Court of Joint Civil Judge and F. C. M., Nawabshah.

4. Autopsy on the dead body was conducted by Dr. Jamilur‑Rehman who found the following injuries on the person of the deceased :‑ "(1) One gunshot lacerated wound 12" x 4" x muscle deep on the medial and central surface of right forearm: The muscles were lacerated and the bone was visible. Seven pellets removed from the under skin of inner surface of right arm. There were blood clots under the skin of inner surface of right arm, The muscles were also lacerated. (2) Eight lacerated gunshot wounds of entrance each 1/3" in diameter on the lateral surface of right shoulder, top of right shoulder and supra clavicular region. There was fracture of right shoulder‑joint, i, e. head of humerous and glenoid cavity of right scapula. One big pellet removed this from wound. (3) Twenty‑two lacerated wounds of entrance with slight charing of margin on the right side of abdomen, right side of chest both laterally in front of the chest." In the opinion of the doctor the cause of death was shock and haemorrhage. The injuries appeared to have been caused by discharge of firm‑arm and injury No. 3 was individually sufficient to cause death in the ordinary course of nature.

5. In his statement the appellant has denied having committed the offence. He pleaded innocence and explaining the reasons for his involvement in the offence he stated that he had been implicated in the offence due to enmity.

6. The prosecution has furnished ocular testimony of P. Ws. Haji (complainant), Mohammad Bux, Sultan and Mattar. Complainant Haji is cousin and brother‑in‑law of the deceased while P. W. Mohammad Bux is a caste‑fellow and a friend of the deceased. P. W. Sultan is brother of P. W. Haji and his sister is married to the son of the deceased. He is also cousin of the deceased. P. W. Matter is a ‑hari" of the deceased. All these witnesses have affirmed the prosecution story. According to them the appellant was brother‑in‑law of acquitted accused Imam Bux and two years before the incident Imam Bux had shifted from the village of his brother (deceased) to live with his father‑in‑law. The deceased approached the acquitted accused Imam Bux to leave the house of his father‑in‑law and join the deceased and live in his own house and cultivate his own lands. In the presence of P. Ws. Haji (complainant), Mohammad Bux and Sultan the acquitted accused Imam Bux was persuaded by the deceased to live in the house which the deceased had constructed for him but he refused to shift from his father‑in‑law's house upon which the deceased slapped Imam Bux. Imam Bux, highly annoyed by this treatment left the village of the deceased immediately threatening to see him ; meaning thereby that he would take revenge upon him. At the time of the incident P. Ws. Haji, Mohammad Bux and Sultan were sitting near the grass‑cutting machine and P. W. Mattar was in a nearby field when the appellant and acquitted accused Imam Bux came there. The appellant was armed with a gun whereas the acquitted accused was empty‑handed. The acquitted accused Imam Bux went and stood at the land of P. W. Mattar while the appellant directly went to the abandoned house of Mooso and from there called the deceased. The deceased responded to the call and came out of the house. As soon as he came out of the house the appellant opened fire upon him. The deceased received injuries and died instantaneously. The testimony of these eye‑witnesses is corroborated by the recovery of the unlicenced gun which was recovered in the presence of mashirs P. W . Haji Babu and Rafiq on being pointed out by the appellant. The recovery witnesses are independent and uninterested. They belong to the same village and apparently there seems to be no reason why they would falsely implicate the appellant. In our estimation implicit reliance can be placed upon these witnesses. The testimony of these witnesses provides ample corroboration to what has been stated by the eye‑witnesses.

7. The appellant's judicial confession is also on record. He has stated in the confession that he committed murder of deceased by means of a shot‑gun. However, he explained that at that time deceased was sitting in his sister's house and he murdered him due to sudden and grave provocation. He has not at the same time, disclosed as to what was the condition of his sister and the deceased at that time. He has however, stated that he was not prepared to say anything further and that he would give his full statement in the Court of Session. It transpires from the perusal of the record that later on also he did not disclose as to what was the reason for grave and sudden provocation.

8. From the testimony of the eye‑witnesses and the recovery of the unlicensed gun the prosecution has been able to prove the guilt of the A appellant.

9. Mr. ‑Mohammad Hayat Junejo, the learned counsel for the appellant has put forth alternate arguments. His case is that the eye witnesses could not be implicitly relied upon for the purpose of conviction as the complainant Haji is a cousin and brother‑in‑law of the deceased, P. W. Sultan is brother of P. W. Haji and his sister was also married to the son of deceased and P. W. Mattar was "hari" of the deceased. According to him these persons are interested witnesses. The alternate contention raised by him is if at all the testimony of these witnesses was to be believed, then the appellant should be given benefit of sudden and grave provocation and convicted under section 304 (Part 11), P. P. C. as he had seen his sister in compromising position with the deceased which fact can be guessed from the judicial confession in which the appellant has stated that he killed the deceased due to sudden and grave provocation. As far as the first contention of the learned counsel is concerned, we are unable to agree with him because despite it that the eye‑witnesses had some or the other connection with the deceased it is not necessary that they should be interested witnesses. From the perusal of the statement of the eye‑witnesses no such material has come out which may be sufficient to create doubt about the veracity of their statements. It is not always necessary that the witnesses who had some connections with the deceased would give false version. There are also no contradictions in the statements of the eye‑witnesses and their presence at the scene of offence is very natural. The testimony of the witnesses is further strengthened by the evidence of mashirs P. Ws. Haji Babu and Rafiq in whose presence the fire‑arm was recovered. Not only this, but the judicial . confession also lends full support to the prosecution version. In these circumstances the possibility of the eye‑witnesses giving a false version of the case is completely ruled out. Coming to the second contention of the learned counsel that the offence was committed under sudden and grave provoca tion, we are of the opinion that the absence of the motive and the state ment of the appellant that he had committed the offence under sudden and grave provocation needs consideration. He has further stated in his statement that he did not want to disclose what he had seen and that he will give full statement in. the trial Court. But in the trial Court also he did not explain as to what those particular facts were which he did not like to divulge 3t the stage of confession. There is definitely something which the appellant seems to be hiding. The absence of motive also suggests that there was definitely something which provoked the appellant otherwise there is no reason why he should have killed a person with whom he had no direct connection. 1f the deceased had slapped his brother‑in‑law then also it was a matter between two real brothers and it was not sufficient circumstance to give so much provocation to the appellant that he would decide to kill the deceased and take the risk of capital punishment. Since the confession is partially relied upon therefore, the element of provoca tion cannot be ruled out. However, the, evidence is not suggestive of the fact that the appellant received sudden and grave provocation therefore his conviction under section 304, P. P. C. is out of question. However, in the circumstances that the evidence does not disclose any motive and it is sufficiently suggestive of the fact that the offence had been committed under provocation the appellant is entitled to the concession of imposition of lesser penalty.

10. The conviction under section 13‑D of Arms Ordinance is also without any flaw for the reasons that the gun was recovered from the possession of the appellant in the presence of witnesses who are independent and uninterested. It has already been established through evidence discussed above that this gun was also used By the appellant for the murder of the deceased. Accordingly we uphold the conviction under section 13‑D of Arms Ordinance.

11. For the foregoing reasons we dismiss both the appeals but convert the death penalty into a sentence of imprisonment for life. The reference for the confirmation of death sentence is not upheld. Order accordingly.