Muhammad Ali Sayebd, J.--The appellant has been convict ed by the learned Additional Sessions Judge, Larkana under section 302, P. P. C. for the murder of Sher Khan son of Jalal and sentenced to death by his judgment dated 12th of June 1970. This judgment of conviction and sentence has come up be fore us for confirmation. The appellant has also appealed against the same.
2. Deceased Sher Khan is the maternal uncle of the appel lant. The lands of the appellant as well as of P. Ws. were situated in deli Bhangwar Acha and drew water from a common water course, fed by Gul canal in taluka Warah.
3. P. W. Mazan who is the brother of deceased Sher Khan had his own land in deh Minhan Kahi, which was at a distance of about a mile from the wardat of the crime. On the morning of 6th July 1969 Mazan was on his land when his cousin Suhno came up to him at about 10 a.m. and informed him that he (Suhno) and his uncle Sher Khan were ploughing the land when Sher Khan left telling Suhno that he would go and open the water. It would appear that appellant Maula Bux had diverted the water to his own lands. On reaching the water course deceased Sher Khan asked the appellant as to why he had stopped the water. An argument ensued between them and the two abused each other. The appellant is said to have fired his gun at Sher Khan which struck him on his left forearm and other parts of his body. On the cries raised and the gun report Ghulam Rasool Khoso and Makhan the father of Suhno went running to the scene of occurrence. The appellant seeing them coming ran away with his gun. On receiving this information from Suhno P. W. Mazan accompanied him to the wardat and found Sher Khan lying on the bank of the canal with his injuries bleeding. He appeared to have received gunshot injuries on his left forearm and stomach.
On inquiry Sher Khan who was still conscious narrated the same facts to Mazan. Later, Uris, Abdul Kadir Shaikh, Laloo son of Amir Bux Khoso and other people came to the spot and Sher Khan narrated the same facts to them as well. The injured was then taken on a cot and carried to his house. But on the way he died. Leaving Haji Makhan, Suhno and others on the dead body Mazan (P.
W. 6) left for the Drigh Police Station which was two miles away and lodged the F. I. R. at 11-00 a. m.
The F. I. R. which is in the same terms as the foregoing narration, was recorded by Head Constable Ali Anwar (P. W. 9). Accompanied by Mazan and some policemen Head Constable Ali Anwar went straight to a place by the factory of Roshan where the dead body of Sher Khan was lying on a cot.
After preparing the inquest report of the dead body he sent it to the Medical Officer, Kamber for post-mortem examination. He then repaired to the wardat of the crime and saw it in the presence of mashir Muhammad Jurial and Ghulam Kadir, the first of whom has been examined as P. W. 8.
There was blood at the wardat which was secured by him and sealed in the presence of the Mashirs. He found that the water channal which took off from Gul canal and passed the lands of Sher Khan, had been obstructed. There were three empties lying at the wardat which were secured by him and duly sealed, under Mashimama Exh.
16. The mashirs were the same. After recording the statements of certain witnesses under sec tion 161, Cr. P. C. the Head Constable reached the village of Noor Muhammad Shaikh the same day and handed over the investigation papers to S. H. O. Faiz Muhammad who had come there. The S. H. O. verified the investigation of Ali Anwar and also recorded the statements of P. Ws. Ghulam Sarwar, Laloo and Uris. The The following day, that is, 7th of July 1969, he saw the appellant in a street of village Cheto. The appellant was armed with a double-barrel gun and the S. H. O. arrested him and secured the gun from him in the presence of the same mashirs. The gun was sealed under Mashimama Exh. 16-A. The blood-stained earth secured from the wardat were sent to the Chemical Analyser for report and the gun seized from the appellant along with the three empty cartridges secured from the wardat were sent to the Ballistic Expert for examination. Investigation being complete the appellant was challaned to stand his trial.
4. The evidence against the appellant consists of the ocular testimony of Suhno (P. W. 3) who is nephew of the deceased, Haji Makhan (P. W. 4) the brother of the deceased and Ghulam Sarwar (P.
W. 5). The ocular testimony is corroborated by the evidence of Mazan (P. W. 6) who is also a brother of the deceased and by Lai Bux (P. W. 7).
5. The circumstantial evidence against the appellant consists of the seizure from him of a licensed double-barrel gun under Mashimama Exh. 16-A and also the seizure of a gun licence from the house of the appellant under Mashimama Exh.
17. The three empties secured from the scene of offence were forwarded to the firearm expert and according to Mukhtar Ahmad (P. W. 11) the firearm expert, the empties in question appeared to have been fired from the gun secured from the appellant.
6. The further evidence against the appellant consists of the dying declaration made by the deceased to P. Ws. Mazan, Suhno, Haji Makhan, Ghulam Sarwar and Laloo that he had been shot by appellant Maula Bux. The evidence of the Medical Officer, Dr. Ghulam Mustafa (Exh. 25) who conducted the post-mortem examination of deceased Sher Khan shows that the deceased had in all 5 gunshot wounds. The details of the injuries are given below:--
(1) One lacerated wound 2"x l'x cutting the muscles and producing the sprouting of a coil of intestine and a piece of spleen.
(2) Multiple lacerated wound each 1/8" x 1/8" x muscle deep over anterior aspect of epigastric region.
(3) One lacerated, wound 1/8" x 1/8" muscle deep over medial aspect of upper l/3rd of left arm.
(4) One lacerated wound 1/8" x 1/8" x muscle deep over posterior aspect of upper l/3rd of left arm.
(5) One lacerated wound 1/8' x 1/8" x muscle deep over medial aspect of upper l/3rd of right arm.
On a consideration of the above injuries it seems lo us that injuries 1 and 2 were the result of a single shot, injuries 3 and 4 of another shot and injury No. 5 of a third shot.
7. The appellant in his statement under section 342, Cr. P. C. denied being connected in any way with the killing of Sher Khan. He further denied that a gun was secured from him. When asked as to why the prosecution witnesses were deposing against him he answered by saying that they were connected and related to deceased Sher Khan and had thus deposed against him. He also alleged enmity against P. Ws. Mazan and Laloo. He claims to have married a cousin of P. W. Mazan against the latter's wishes which gave rise to enmity between them.
8. Reverting now to the ocular testimony against the appellant we have first the evidence Suhno son of Haji Makhan (P. W. 3). Deceased Sher Khan was his uncle. On the morning of the incident he along with deceased Sher Khan and his father Makhan went to the lands in order to work there. He and deceased Sher Khan started ploughing the land while the water was flowing into it. All of a sudden the flow of water diminished whereupon Sher Khan went to the bank of Gul Canal in order to lind the reasons for the discontinuance of water flow. Immediately after this he heard three gun reports and also an alarm coming from the bank of Gul Canal. He went in that direction and saw the appellant running away with a double- barrel gun. He goes on to explain that when the flow of water to the land of the deceased Sher Khan diminished the deceased went to the appellant and made inquiries from him in this connection. The appellant, however, informed Sher Khan that he wanted water to irrigate his land. There were exchange of hot words between the parties and accordingly, he (Suhno) and Makhan went towards the place and actually saw Sher Khan deceased removing the obstruction to the flow of water. The appellant who was armed with a gun fired at Sher Khan thrice as a result of which Sher Khan fell. Sher Khan, however, was conscious and told P. W. Suhno and Makhan that Maula Bux appellant had fired the gun at him. Thereafter Laloo came at the wardat. Leaving other at the wardat, Suhno went to Mazan and Uris and narrated the facts to them. Sher Khan was thereafter carried on a cot to his village but on reaching near the factory of Roshan in the said village Sher Khan died. At this stage Mazan P. W. left for lodging the F. I.
R. The witness has in his cross- examination admitted that the appellant had married Mst.
Khanzadi about two years back and it was a fact that the complainant party was not happy with the accused on the aforesaid marrige and had actually stopped visiting him. It has also been admitted that the appellant had taken unauthorised possession of some portion of land by the side of his house and that the P. Ws. had objected to it.
9. The next eye-witness to be examined by the prosecution was Haji Makhan the father of P. W.
Suhno. The evidence of this witness is more or less on the same lines as that of P. W. Suhno. Even he claims to have been attracted to the bank of the water channel on hearing the hot words between the appellant and deceased Sher Khan. He saw Sher Khan going to remove the obstruction which prevented the flow of water to his lands. He also deposed about Sher Khan having told him that Maula Bux had fired the gun shots on the former's attempt to remove the obstruction to the flow of water to his lands. This witness is a brother of deceased Sher Khan and the appellant is a son of his sister. No question has been asked in cross-examination of this witness to suggest any enmity between him and the appellant. Presumably after having obtained the admissions of Suhno on this aspect, it was found unnecessary to ask the same question from P. W. Makhan. The third eye- witness is Ghulam Sarwar (P. W. 5). He is a Khoso by caste and at the time of the present incident he was a hari of the appellant and used to cultivate his lands. His version is that on the morning of the fateful day deceased Sher Khan went towards Gul Canal and inquired from the appellant as to why he had obstructed the flow of water to his land. An argument ensued between the two and Sher Khan began to remove the obstruction in the watercourse so as to admit water to his own land. On this, the appellant abused deceased Sher Khan and fired his gun thrice at him. He states that Sher Khan was conscious and was able to speak and he informed those present that the appellant Maula Bux had inflicted the gunshot injuries on him. He witnessed the incident from a distance of 10 paces. It was suggested to this witness in cross- examination that he had committed theft of grain from the appellant and had, therefore, ceased to be a hari of the appellant before the incident. The witness denied the allegation and as serted that he left cultivating the lands of the appellant after the present incident. No other suggestion has been made to discard the testimony of this witness.
10. The learned counsel for the appellant strenuously contended that P. Ws. Suhno and Makhan were not witnesses of truth. The argument presented at the bar was that point 'C' in the sketch depicting the land of Sher Khan was at a distance of 1600 feet from point 'A' where the fight took place. It was urged that P. W. Suhno and Haji Makhan who claimed to have been attracted to the scene of occurrence by the argument between the appellant and the deceased, could not possibly have heard the conversation at that distance. It is true that the land o Sher Khan is shown to be about 1600 feet away from the actua scene of occurrence and we ourselves are inclined to accept th contention of the learned counsel for the appellant that Suhno and Makhan could not have heard the verbal fight between the two. Their evidence in Court, to this effect appears to be an attempt in an improvement of the case. Actually however, it seems that these witnesses were attracted to the site by the gun report which they heard. This is obvious from first part of the deposition of Suhno (P.
W. 9). It will be useful to reproduce this part: "I and deceased Sher Khan started ploughing land of Sher Khan and at that time, water was flowing to land of deceased Sher Khan but shortly after this the flow of water to land of Sher Khan diminished. The land of the accused present in the Court is first and after that there is land of Sher Khan. When the flow of water to land of Sher Khan diminished, Sher Khan went to bank of Gul Canal in order to find out as to why the water had diminished. Immediately after this I heard 3 gun reports. I heard gun reports and alarm coming from the bank of Gul Canal and accordingly I went in that direction. I saw the accused present in the Court running away and at that time the accused present in the Court was armed with double-barrel gun. At that time the accused present in the Court was at a distance of 30 paces away from me. The face of the accused present in the Court was towards me. The face of the accused was not muffled up and I saw clearly and distinctly the face of'the accused present in the Court and identified him."
As would appear from a perusal of the foregoing statement, there seems to be no mention of P. W.
Suhno having heard the loud argument between the appellant and the deceased. On the other hand he clearly affirms that after Sher Khan had gone to the bank of Gul Canal, he had heard three gun reports. The story about the argument which took place between the two persons is carried in the subsequent part of his testimony and gives one the impression that it is a revised version of the same incident. Learned counsel suggested that the second part of the testimony was tutored evidence which was exacted from the witness. Our own reaction, however, to the revised version is different. It seems to us that the narration about the argument that took place between the appellant and the deceased was designed to, in fact, help the appellant in obtaining a lesser sentence from the Court by making it appear that the appellant had been provoked into firing on the deceased on being abused and on the deceased forcibly removing the obstruction of the watercourse. But assuming that the two witnesses, Haji Makhan and Suhno had not witnessed the incident these would yet be the evidence of Ghulam Sarwar (P. W. 5). He is a Khoso by caste and at the time of the incident was working as a han on the lands of the appellant. The appellant and the other prosecution witnesses are Shaikhs by caste. The gist of his evidence has been given earlier in this judgment. He speaks of the argument between the appellant and the deceased and of the appellant firing thrice at the deceased when the latter began to remove the obstruction in the watercourse. As observed earlier, there is little in the cross- examination of this witness which could be construed as weakening his evidence. On the other hand the presence of P. W. Ghulam Sarwar at the place where he claims to have been at the time of the incident, appears to us to be perfectly natural. His evidence also appeals to us as cogent and truthful and we see no reason to view it with any suspicion.
11. The evidence which tends to further connect the appellant with the crime is the seizure of the three crime empties from the wardat which matched the double-barrel gun shown to have been owned by the appellant under a licence. All these empties were found to have been fired from the right barrel of the gun seized from the appellant. An intriguing feature is that these empties have all been fired only from the right barrel of the gun. The learned counsel for the appellant himself felt intrigued by his circumstance which even to us, seems to have no plausible explanation but nonetheless no argument was advanced to show how this circumstance could raise any presumption in favour of the appellant. The fact remains that the empties found at the wardat have been fired by the appellant's gun. The medical evidence as construed by us confirms that the injuries on the person of the deceased could have been caused by three gun shots.
12. For the reasons given above, we have no doubt in our minds that the prosecution has been able to prove in a reasonable and convincing way, their case against the appellant.
13. The only question which remains to be considered is the one regarding the sentence to be imposed. It is the case of the prosecution itself that it was the deceased who went to the appellant and picked up a quarrel on the flow of water. It is also admitted by the prosecution witnesses that the two had hurled abuses at each other. It is further alleged that the appellant had fired his gun when deceased Sher Khan, defying the appellant, began to remove the obstruction in the watercourse. It seems to be quite clear that the act of the appellant lacked premeditation. The mere fact of his being armed with a gun does not necessarily lead to any adverse inference since the fight admittedly did not take place in the land of the deceased. In the view we have taken of the events immediately preceding the use by the appellant of the gun we would replace the sentence of death by a sentence of transportation for life. The sentence of death is accordingly not confirmed.
14. Except for the alteration in the sentence from death to transportation for life, the appeal is dismissed and the appellant's conviction maintained. .