Appellant Shamboo alias Shahmir was tried by Mr. Amanullah Soomro, Ilnd Additional Sessions Judge, Jacobabad for the offence under section 302, P.P.C., who found him guilty for the said offence and vide judgment, dated 24-9-1981, sentenced him to imprisonment for life and to pay a fine of Rs.1,000 or in default to suffer R.I. For six months more. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. Deceased Sanho was a first cousin of appellant Shamboo and both of them were jointly concerned in committing thefts in the locality. It is alleged that on 25-6-1979 at about dawn time the appellant called deceased Sanho from his house and fired at him from his gun within the sight of his father Abdul Aziz and brother Abdul Ghafoor causing injuries on his right ankle. It is further alleged that the appellant was annoyed with deceased Sanho over the distribution of booty and this fact was conveyed to complainant Abdul Aziz by deceased Sanho. A jeep was then hired to carry deceased Sanho to police station. He, however, succumbed to his injuries while on way to police station. On the same day at 9-40 a.m. Complainant Abdul Aziz lodged F.I.R. At Thul Police Station. Muhammad Nawaz S.H.O. Took up the investigation. He inspected the place of occurrence, which was near the house of complainant Abdul Aziz. The blood-stained earth was secured from there in presence of Mashirs Umed Ali and Sharbat. Manzoor Ahmad S.I.P. Arrested the appellant and after completing the investigation submitted charge-sheet against him.
3. The appellant pleaded not guilty to the charge when read out to him in Court and claimed a trial.
At the trial the prosecution has examined Dr. Muhammad Alam (P.W.1), Imam Din Tapedar (P.W.2), Abdul Aziz (P.W.3), Abdul Ghafoor (P.W.4), Umed Ali (P.W.5), Muhammad Nawaz S.I.P. (P.W.6) and Manzoor Ahmad S.H.O. (P.W.7).
4. The appellant met the charge with a denial professing innocence. According to him Mst. Gohar sister of deceased Sanho who was married with his brother Kabir was declared Kari and he was implicated falsely on account of this enmity. No defence was, however, led by the appellant.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly.
6. 1 have heard Mr. Abdul Haleem Pirzada, learned counsel for appellant and Mr. Zawar Hussain Jafferi, learned. A.A: G. For State. The latter has supported the conviction recorded against the appellant.
7. The fact that deceased Sanho died an unnatural death after sustaining gun shot injuries is not in dispute. Besides the evidence of Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4), which I will discuss at the proper time there is evidence of Dr. Muhammad Alam (P.W.1) who had conducted the autopsy on the dead body of Sanho and an external examination found the following injury on his person: "6 oval punctured lacerated wounds of entrance each 3/4 c.m. In diameter apart from each other, two on the front of the right ankle and four on the lower 1/3 right leg, each one inch apart on the medial aspect with fracture of both bones through and through, with two exit wounds each 3/4 c.m. In diameter, each one inch apart from lateral aspect of the right leg."
On internal examination the Medical Officer found the same damage, which he had noted while describing external injury. The stomach of deceased was found empty. In the opinion of Medical Officer the injury was caused by means of a single gun, shot and the death of deceased Sanho occurred due to shock and haemorrhage as a result of above injury.
8. The case of the prosecution rests upon the following items of evidence:
(i) Direct testimony consisting of Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4).
(ii) Dying declaration made by deceased Sanho before Abdul Aziz (P.W.3), and Abdul Ghafoor (P.W.4).
(i.e) Motive.
9. The record shows that complainant Abdul Aziz (P.W.3) who is father of deceased Sanho is a real uncle of the present appellant. The parties had matrimonial relationship also and according to appellant himself Mst. Gohar daughter of complainant Abdul Aziz (P.W.3) was married to his brother Kabir. It is also clear from the record that the place of incident was situated near the house of complainant Abdul Aziz. Umed Ali (P.W.5) who has acted as Mashir of Wardat has given this distance to be about 40 paces. Imam Din Tapedar (P.W.2) has, however, given this distance to be 450 feet. The evidence of Imam Din Tapedar (P.W.2), further shows that both Abdul Aziz and Abdul Ghafoor were standing at a distance of 60 feet when they saw the actual incident. It may be noted that deceased Sanho was called by the appellant while standing out side at about dawn time and out of curiosity both Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4), came out to find out the purpose of visit of the appellant at that time. It has been testified by both the witnesses that the appellant took him of the gun towards deceased Sanho and on their challenge he fired at him on his ankle and then decamped. The evidence of Dr. Muhammad Alain (P.W.1) also makes it clear that stomach of deceased Sanho was empty at the time of post-mortem examination and this factor fully establishes that the incident had taken place at dawn time before deceased Sanho took breakfast.
10. Both Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4) were put to searching cross-examination, but beyond few minor djs,repancies, nothing, substantial came out on record to shake their credence.
Such discrepancies show only the untutored veracity of the witnesses. On the other hand if there are no discrepancies in such cases, confederacy and concoction before hand may always be suspected. The evidence of both these witnesses who are natural witnesses of the occurrence inspires confidence and the learned Additional Sessions Judge was apparently favourably inclined by their demeanour, and I find it difficult to reject) the assessment made by him.
11. Mr. Abdul Haleem Pirzada, learned counsel for appellant has contended with force that no independent witness was examined in this case although the presence,, of such witnesses is admitted by Abdul Ghafoor (P.W.4). The parties are 'Bangulani Baloch' by caste. They are closely related to each other. Both appellant and deceased Sanho were notorious thieves of the locality and in such cases many persons are generally unwilling to appear as witnesses to avoid any possible tribal conflict. It may, however, be noted that mere relationship of witnesses with the deceased person is not per se enough to warrant rejection of their testimony. The mechanical rejection of such evidence would lead to failure of justice.
12. An attempt has also been made to prove enmity between the parties over the Karap (allegation of adultery) of Mst. Gohar were of Kabir, brother of appellant and daughter of complainant Abdul Aziz (P.W.4). The complainant has explained this affair in cross-examination in the following words: "My daughter is married to Kabir. Kabir has declared my daughter as Kari two months after the incident at the instance of people. Now my daughter is residing with me. It is not a fact that my daughter was declared Kari before the incident and I had falsely implicated the accused due to fear that my daughter will be killed."
The allegation of Karap was examined,, by learned Additional Sessions Judge who met this plea in his judgment in the following words: "But it is not even appealing to common man as to why complainant should leave the husband of his daughter who had declared her Kari and to only implicate present one accused leaving his other opponents free:"
13. Cases do arise, no doubt, where false additions are made, but the implication of a person who is innocent in place of a guilty person is a very rare thing and a convincing and cogent evidence is required to establish that fact. The appellant even failed to examine his brother Kabir on this point in his defence.
14. Having regard to the above circumstances, I am satisfied that both Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4) had witnessed the incident and the criticism made against them is devoid of force.
15. I now proceed to examine the evidence of dying declaration. The F.I.R. (Exh.12) shows that on inquiry deceased Sanho informed, "that Shamboo was annoyed with him due to share of Booty which he was demanding from him'. Complainant Abdul Aziz (P.W.3) and Abdul Ghafoor (P.W.4) however, resiled from their earlier statement with a view to save deceased Sanho with this stigma and they stated before the Court that deceased Sanho had informed them that the appellant was a thief and he had disclosed his name to the persons who had brought Holy Qur'an to him in search of their stolen goods. A dying declaration is not a piece of evidence at par with that given in Court where cross-examination can expose the witness. The consideration for which some sanctity is attached to the dying declaration is that a man when he is preparing for his eternal journey will not falsely involve anybody. However, in order to rely upon such evidence it is necessary to place the actual words of the dying man on record, which is not the position in this case.
16. The appellant was again not confronted with this piece of evidence. No such question about the dying declaration made by deceased Sanho was put to him in his statement recorded under section 342, Cr.P.C. The examination under section 342, Cr.P.C. Is not an empty formality and it has to be carried out to afford an opportunity to accused to explain .His position on each aspect of the case. No reliance can, therefore, be placed upon such evidence.
17. I now address myself to the question of motive. The earliest vision of deceased Sanho about the cause of this incident finds place in F.I.R. (Exh.12). The cause of motive disclosed in Court is almost the same with little variation. The fact, however, remains that both deceased Sanho and appellant Shamboo were thieves and the incident took place over the share of stolen goods.
18. The eye-witness account furnished by Abdul Aziz (P.W.3), and Abdul Ghafoor (P.W.4) coupled with the evidence of motive leaves no room of doubt in my mind that appellant Shamboo and none else was responsible for causing gun shot wounds to deceased Sanho on his ankle. Obviously the appellant had no intention to commit the murder of his cousin and a partner in thefts.
Deceased Sanho died due to profuse bleeding and a timely medical aid could have save him. The shot was fired on the ankle, which is not a vital part of body, but the act was done with the knowledge that it was likely to cause death. There is, therefore, force in the contention of Mr. Abdul Haleem Pirzada, learned counsel for appellant that the offence, if any, will fall under section 304(I), P.P.C. And not under section 302, P.P.C. The case of Abdul Nasir v The State reported in 1980 P Cr. L J 898, which is cited on behalf of the appellant is relevant in the circumstances of the present case.
At page 901, it was observed: "The next question to be considered is whether the conviction of the appellant under section 302, P.P.C: is legal. I do not think so. The reason being that there is nothing in the evidence of Muhammad Javed pertaining to motive. The other factor is that it so appears from the nature of injuries that the intention of the appellant simply was to injure the deceased and it was sheer bad luck that he was hit in the left flank on account of which he died. This fact is supported by the medical evidence, because the doctor who performed the autopsy noticed an incised wound 1-1/4" x 1/3" chest cavity, 5" deep and an incised wound 1-1/2" x 1/2" muscle deep, over poster medial aspect of left upper arm. The doctor admitted in cross-examination that 'the injuries Nos. 1 and 2 were in line and could be caused with a single blow of a sharp-edged and pointed weapon'.
For the foregoing reasons I alter the conviction of the appellants from section 302, P.P.C. To section 304(1), P.P.C. And sentence him to five years' R.I."
19. As a result of the above discussion, as well as perusal of the record. I alter the conviction of appellant from section 302, P.P.C. To section 304(1), P.P.C. And sentence him to R.I. For seven years.
The fine of Rs.1,000 is also maintained, which if recovered. Will be paid to legal heirs of deceased Sanho. In default of fine the appellant shall suffer R.I. For six months. The appellant was arrested on 14-9-1979. He remained in custody till 24-9-19$1 when he was convicted. He also remained in custody as convict till 16-3-1982 when he was granted bail. This period of detention as U.T.P and as convict will be counted towards his sentence under section 382-B, Cr.P.C. The trial Court shall take necessary steps to remand the appellant to custody to serve out the sentence.
20. In the result the appeal is partly accepted in the above terms.