MUHAMMAD ALI SAYEED, J.-The appellant has been convicted by the learned Sessions Judge, Sukkur under section 302, P. P. C. For the murder of Dham Bux son of Malhar, aged 50 years, and sentenced to transportation for life. Two other persons, namely, Kamal and Ramzan who had been tried with the appellant for the same offence have been acquitted. The incident took place on the 10th of November 1966 at. About 11 a.m. In the land of Mehboob Shah, in Deb Kassimpura, Taluka Pano Akil. Accord--ing to the F. I. R. Which was lodged at 3 p.m. The same day with the Pano Akil Police Station, at a distance of 14 miles, by the brother of the deceased, Dhani Parto, P. W. 5.
Deceased Dhani Bux was ploughing his land at about 11-06 a. m, when Dino, the appellant, Kamal and Ramzan went -to him. Dino was armed with a hatchet while Kamal and Ramzan with lathis.
Dino, it is alleged, started an argument with deceased Dhani Bux that the plough with which the latter was working belonged to Dino and had been stolen by him. Dhani Bux repelled this contention and claimed the plough to be his own. In the altercation that ensued Dino is alleged to have struck Dhani Bux with his hatchet, thus felling him down. Kamal and Ramzan followed this up with lathi blows on the back of Dhani Bux. The cries raised brought Ranjho and Hashim running to the place of the incident. The assailants, it is said, ran-away towards their harpa land in the West.
Deceased Dhani Bux was found unconscious when Ranjho and Hashim reached him. Leaving others with Dhani Bux, Ranjho and Hasham came to Dhano Parto the first informant and gave him the information. Dhani Parto went and informed Rahim Bux a B. D. Member about the facts heard by him and both of them thereafter visited the scene of the incident and saw the injuries on Dhani Bux.
2. The F. I. R. Was recorded by S. H. O. Mahmood Ahmad, P. W. 9 who after completing the usual investigation challaned Dino, Kamal and Ramzan under section 302 read with section 34, P. P. C. In his statement under section 209, Cr. P: C. Given in the committal Court as well as under section 342, Cr. P. C. In the Sessions Court the appellant made a complete denial of the incident; although in his judicial confession recorded by Amir Ali Shah, 1st Class Magistrate, Ghotki on the 12th of October 1966 be admitted having caused an injury on the left side of Dhani Bux after an argument relating to the theft of his plough. He denied that his cousin Kamal and uncle Ramzan were - with him at the the of the incident.
3. The evidence against the appellant consists of the ocular testimony of Wahid Bux, P. W. 6 Dawood, P. W. 7 and Ranjho, P. W.
8. Wahid Bux (P. W. 6) was ploughing his land adjacent to the land of Dhani Bux when all of a sudden he heard a loud argument. He saw that all the three accused persons were standing near Dhani Bux and he heard Dino contending that the plough with Dhani Bux belonged to him. Dino wanted Dhzni Bux to return the plough to him as it had been stolen from Dino's house. Dhani Bux did not concede to this demand. Dhani Bux then started running away leaving the plough while Dino gave him a hatchet blow from its blunt side whereupon Dhani Bux fell down. The other to accused followed this up with lathi blows on the person of Dhani Bux, P. W.
Wahid Bux raised cries which attracted Dawood, Ranjho and Hasham. The accused, however, ran away, Dhani Bux was found unconscious and, asking Ranjho and others to help Dhani Bux with some water, P. W. Wahid Bux scurried forth to break the news to Dhani Parto to brother of Dhani Bux.
In his cross-examination P: W. Wahid Bux was confronted with a statement made in the committal Court in which he had stated that he was ploughing the land at a distance of 3 or 4 furlongs from Dhani Bux. The extract was proved as Exh. 9 (B). He further admitted that Hasham, Dawood and Ranjho were also at the same distance as he was from the wardat. The depositions of the other to eye--witnesses are in terms more or less identical with that of Wahid Bux and there is nothing of significance in them which calls for reference.
4. The evidence of the above three eye-witnesses is corroborated by Dhani Parto (P. W. 5) and Rahim Bux (Ex. 14)... Dhani Parto is the brother of deceased Dhani Bux. On the day of the incident he had remained indoors in his house - because of fever. He was informed of the incident at about 11- 00 a. m. By Wahid Bux (P. W. 6). On being given the story by Wahid Bux he went to Rahim Bux and after narrating him the fact both of them repaired to the scene of occurrence and saw Dhani Buy lying unconscious with injuries on him. The prosecution seeks, further corroboration of their version by recovery, of a hatchet which according to the prosecution case, was produced by the appellant.
We would, however, prefer not to place any reliance on this evidence since upon what the mashir Khuda Bux (P. W. 4) bad stated "the accused was in the custody of the police. The accused had voluntarily produced the hatchet. There was a hatchet lying there and the accused had produced it before us." This statement is suggestive of the fact that when the mashir responded to the call of the police the accused was already in police custody and the hatchet was lying there.
5. Medical evidence examined by the prosecution consists of the statement of Dr. Khurshid Muhammad who was the medical officer in sub-charge of the Civil Hospital at Sukkur. On the 11th of November 1966 he carried out the post-mortem examination of the deceased Dhani Bux and found a single injury on his person consisting of a contusion 2" x 1" on the back lowest part left side of the chest obliquely. On internal examination of the deceased he found that:
(i) Peritoneum was ruptured corresponding to the external injury and the peritoneum cavity was full of fluid and clotted blood; In his opinion the death of the deceased was due to shock and internal haemorrhage and was instantaneous. The doctor has not opined that the injury in question was sufficient in the ordinary course of nature to cause death. But in his cross-examination' he observes that the injury was grievous and dangerous.
6. The prosecution case finds further corroboration in the retracted judicial confession made by the appellant before the learned Mukhtiarkar and F. C. M. Ghotki made one day after the incident. The plea taken by the appellant in this confession is that on the day of the incident he had taken his hatchet had gone to cut a stick from the lai trees standing behind the place where Dhani Bux was working. As the appellant passed Dhani Bux's land he saw that his plough, which had been stolen 15 or 20 days before, has being used by Dhani Bux. He confronted Dhani Bux and claimed the plough as his. Dhani Bux negatived his contention. The to of them exchanged harsh words where upon Dhani Bux abused the appellant and gave the appellant a stick blow, on the latter's head. The impact of this blow was taken by the turban which the appellant was wearing. The appellant thereafter gave a hatchet blow to Dhani Bux on his left side which fell him down. The incident brought Dawood, Wahid Bux and Ranjho who were ploughing their lands close-by Hasham is also said to have come. On seeing the prosecution witnesses coming the appellant retreated to his own land from where he collected his bullocks and went home. He explains his withdrawal by stating that he was afraid that the relations of Dhani Bux would fight with him. It was later in his house that he came to know that Dhani Bux had actually died. He denied that Kamal and Ramzan who were his cousin and uncle respectively were with him, at the the of the incident. We have carefully examined this confession and are of the view that it was made voluntarily by the appellant.
7. Taking all the evidence led by the prosecution into consideration and the judicial confession of the appellant himself we are left with no doubt in our minds that the denial of the appellant of being concerned in any way with the incident was wholly untenable. Two aspects were particularly stressed by the learned counsel for the appellant while contending that the prosecution witnesses have given false evidence. The first aspect was the admission of Wahid Bux (P. W. b), that he was ploughing the land at a distance of 3 or 4 furlongs from Dhani Bux when the incident took place and that Dawood and Ranjho were also at the same distance as he was from the wardat. It was argued that it was impossible from this distance to get a clear view or for that matter any view at all of the incident on Dhani Bux's land. In his examination-in-chief in the Sessions Court the witness stated that he was at a distance of 40 paces from the place of the incident. We are deeply conscious of the confusion which prevails in the minds of most rustics with regard to distances on linear basis. This circumstance by itself will not discredit the otherwise cogent testimony of the prosecution witnesses. The other aspect which has been emphasised by the learned counsel for the appellant is the evidence of Lal Bux (P. W. 2), the Tapedar, who was examined by the prosecution. According to this Tapedar who had been summoned to produce the field book in respect of Deh: Kassimpur, Dawood, Ranjho and Wahid Bux were not the harts of any land in that deh. It was thus argued that these persons had no business to be found in the lands in that deh: Here again we may state that the presence of Dawood, Ranjho and Wahid Bux need not be explained only on the hypothesis of their being the haris in respect of land in Deh Kassimpur. It is not in--frequent to, find lands being cultivated by persons who are not necessarily entered as haris in the field book. On the other hand we are greatly impressed by the judicial confession made by the appellant the very next day after the occurrence of the offence. e This judicial confession is corroborated on most material particulars by the evidence of the prosecution witnesses.
8. Having made the above observations we do not still find it possible to sustain the appellant's conviction under section 302, P. P. C. The evidence of the medical officer establishes that them was only a single contused wound of 2" x 1" dimension on the person of the appellant. This injury was on the back of the lowest left side part of the chest and was an oblique one. The medical officer does not state that the injury was sufficient in the ordinary course of nature to cause death. This omission, however, would not be sufficient to rule out the inference that an injury which is on a, vital part of the body and dangerous in nature would be sufficient in the ordinary course of nature to cause death despite the omission of the medical officer to specifically state so in his evidence.
Nonetheless it cannot be denied that a small injury of 2" x 1" given by a blunt weapon on the lower side of the chest could not normally be expected to cause death. If indeed a similar injury had been found on a more vital or a delicate part o the body as for instance the head, it could perhaps have given room for an inference that it was intended to cause death but, existing as it does, on the lowest side of the left part of the chest it does not seem to us that an inference of the above nature could or should normally flow. If indeed the intention of the appellant was to cause death of Dhani Bux he would most certainly have used the sharp side of his weapon and inflicted multiple blows since Dhani Bux, according to the prosecution case fell down after receipt of a single blow from the appellant. It seems to us that the appellant may at most, be imputed with knowledge that his at was likely to cause death. We are thus of the view that the conviction of the appellant under section 302, P. P. C. Is wrong: We would, in the result alter the conviction of the appellant to one under section 304(2), P. P. C. And reduce the sentence to 5 years' R. I. With this change in the conviction and the sentence the present appeal stands dismissed.