MUHAMMAD HALEEM, J.-Appellant Anar Khan was tried for the murder of Muhammad Sarwar, convicted under section 302, P. P. C. And sentenced to imprisonment for life and to pay a fine of Re.
1,000 or in default to suffer rigorous imprisonment for one year, by the learned Sessions Judge, Tharparkar at Mirpurkhas, vide judgment dated 29th September 1973. The appellant has appealed to assail his conviction and sentence.
2. According to the prosecution case, the incident occurred in front of the hotel of Wali Muhammad, his father, near Muslim Commercial Bank, in the town of Kunri, Taluka Umarkot at 7 p. m. On 22nd February 1973. Three days earlier, Wali Muhammad had fallen ill and the deceased was in charge of the hotel. On the day of the incident at 7-15 p. m. Ashiq A.I hurriedly came and informed him that while he and Muhammad Husain were sitting and taking tea in the hotel at about 7 p.m., Anar Khan Pathan, "a fire-wood dealer", came there and soon after his arrival he abused the deceased and demanded the amount "due for the wooden pieces", upon which the deceased told him to be gentle and not to abuse him and to go to his father to get the money, who was lying ill in the house.
The appellant insisted that he would take the money from him, to which the deceased replied that he would not give the amount, and hardly had he said so, the appellant took out a knife from his pocket and gave two or three blows with it to the deceased. They tried to catch hold of the appellant but he threatened to kill them and escaped from there. However, Muhammad Hussain went after him and he himself had come to inform him of the incident. Lastly, he gave out that the deceased had gone to the dispensary of Dr. Qureshi for treatment. Wali Muhammad thereupon came along with Ashiq A.I and saw the deceased lying dead in front of the dispensary of Dr. Qureshi. He had three injuries on his person which were bleeding. Leaving Ashiq A.I near the dead body he went to Police Station Kunri and lodged the F. I. R. At 7-45 p. m. The same day, which was recorded by Tahir Muhammad A. S. I.
3. Tahir Muhammad accompanied Wali Muhammad to the wardat, where he saw the body of the deceased. He collected the blood-stained earth from there but on inspection of the hotel he did not see any blood either inside the hotel or on the foot-path. He then sent the dead body for post- mortem examination and thereafter examined Ashiq A.I and arrested the appellant from near the Railway Station. He was at that time wearing a blood-stained shirt which was torn at both the shoulders: It was seized from his person vide mashirnama, (Exh. 18). On the following morning, the appellant produced a blood-stained knife from his` tall' which was lying under a heap of fire-wood, which was also taken into possession vide Mashirnama Exh.
19. At the `tall' there were fire-wood, coal and small pieces of wood. Muhammad Hussain was examined on that day. The blood-stained articles were sent for chemical analysis and except for the knife, on which blood was reported to have disintegrated, the shirt and the earth were reported to be stained with human blood.
4. The autopsy on the dead body was performed by Dr. Ghulam Kadir Qureshi, who found the following injuries:- "(1) An incised wound on right side chest below right nipple on front and between sixth and seventh ribs measuring 1' x 1/2' x deep to right lung lower part.
(2) An incised wound on below axilla on right side measuring 1--" x 1" x 1".
(3) An incised wound on right side chest near injury No. 1, measuring --" x --" x -----.
(4) An incised wound on hack of right upper arm measuring 3--- x ----- x -----.
5. The appellant denied the prosecution case and alleged his involve--ment at the instance of the police. He also denied the recovery of the incriminating articles and led no evidence in defence.
6. The conviction of the appellant rests on the ocular testimony of Ashiq A.I and Muhammad Husain corroborated by the testimony of Wali Muhammad and the seizure of blood-stained shirt and knife, on which blood had disintergrated. Admittedly, Ashiq A.I and Muhammad Husain are the cousins of the deceased while the mashir, Muhammad Munshi, is the maternal uncle's son of Wali Muhammad.
7. At the trial the defence pleaded that it was a case of mistaken identity, which plea was repelled, and again it is pressed before us. While giving out the description of the appellant to Wali Muhammad, Ashiq A.I described him as 'fire-wood dealer,' which finds mention in the F. I. R. Lodged 45 minutes after the incident. Wali Muhammad, in his cross-examination, admitted that there were three Pathans by the name of Anar Khan in Kunri town, and as for the appellant, he does not sell or supply fire-wood but only char-coal. As for the other two, one sells fire-wood and the other 'naswa r'. He further admitted that the police had called all the three Pathans at the Police Station and the one who sold fire-wood was allowed to go away. Ashiq A.I also admitted in cross- examination that the appellant sold only coal and not fire-wood, but when he was confronted with his police statement that it was Anar Khan Talwala, whom he had referred as having come to the hotel, he stated that he could not say if fie made that statement. The contradiction has been proved through the Police Officer and, therefore, it cannot be denied that it was that Anar Khan who sold fire-wood, who was implicated by him. Muhammad Hussain, while stating at the trial that the appellant had a 'Tall' and dealt in fire--wood, coal and small pieces of wood, admitted having not stated before the committal Court that he also sold coal. The reason is obvious, for it was after the arrest of the appellant from whom a blood-stained shirt was seized, that his description was attempted to be reconciled. Again, if there was no reason for a doubt in the identity of the appellant, why should all the Anar Khans be called at the Police Station for verification of their identity. The reason, however, is not far too seek for the witnesses were dubious about his identity.
Ashiq A.I has stated that while the deceased was at the counter inside the hotel that he was given knife blows, and if blood had spurted out to stain the clothes of the appellant then there was no reason why blood should not have been found on the counter or on the floor or a trail of it up to the place, where he fell down, which was about 100 feet away from the hotel. Thus it is doubtful as to whether he was stabbed in the hotel at all, and even if the witnesses were sitting inside the hotel then it would not have been possible to mark the identity of the appellant as it had become dark with any certainty, at the place where the deceased lay and where, in all probability, he was stabbed. We have found no explanation for the absence of blood and when we pointed out to the learned Assistant Advocate-General whether be could give any explanation for its absence, he candidly conceded that he would not support the prosecution case so far as the witnessing of the crime is concerned by the witnesses. It is, therefore, that a wrong description was given by Ashiq A.I to Wali Muhammad and it was to clear any mistake in the identity that the appellant and the other two Anar Khans were called at the Police Station. In this view of the matter, the blood-stained shirt and the knife, on which blood had disintegrated, would not by itself be sufficient for conviction if the ocular testimony as to the identity of the appellant is doubtful.
8. In the result, for the foregoing reasons we would give the benefit of doubt to the appellant, and while accepting the appeal acquit him. He shall be released forthwith unless required in some other case.