MUHAMMAD HALEEM, J.--Appellant Lalu alias Lalbux and Ghulam Hyder were tried for the murder of Anwar A.I, convicted and sentenced by the learned Sessions Judge, Larkana, vide judgment dated 20June 1970 as under Lalu under section 364, P. P. C. To 10 years' rigorous imprisonment, under section 302/34, P. P. C. To transportation for life and under section 404, P. P. C. To three years' rigorous imprisonment. Ghulam Hyder, under section 302/34, P. P. C. To transportation for life and under section 404, P. P. C. To three years' rigorous imprisonment.
2. According to the prosecution case, Abdul Latif, father of the deceased, reported at Taluka Police Station, Larkana at 4-00 p. m. On 25September, 1969 that while he, Himmat and other inmates of the house were sitting at 7-30 p.m. On 22nd September 1969 that some one called out Anwar A.I, who went out and after a few minutes brought in Lalu who told Abdul Latif that he had some important work and in that connection he would like to take Anwar A.I for a few days. Saying so, the deceased and Lalu went out. Two days after, that is on 24-9-69, Abdul Latif became suspicious and took his nephew, Muhammad Azim, and looked for the deceased in village Chana, where Lalu resided. They met Lalu who informed them that the deceased had left yesterday, whereafter both of them returned but ':failed to trace him out. Again on the next day when they reached village Aqil, they were informed that a dead body was lying in 'lai' bushes in a desolate jungle about a mile away. They left in that direction and after search came across the dead body of the deceased.
From there Abdul Latif went to Wadero A.I Qabar Khan, to whom he gave the facts who, in turn, advised him to lodge the report which he did implicating Lalu as the murderer of his son.
3. The motive assigned was that a few months before, the deceased was thrown out of employment by Lalu on the plea of a suspicion entertained by him that the deceased was onth th terms of illicit intimacy with his sister, Mst. Waziran. Thereafter both the sides had referred the matter for decision to Haji Dhani Bux who decided that the deceased was innocent. According to Abdul Latif, their relations again became cordial and they visited each other until this incident happened.
4. Abdul Rashid S. H. O. After recording the report repaired to the wardat, from where he secured blood-stained earth. He called for Dr. Wahid Bux at the site to conduct the post-mortem examination as the body was in a state of decomposition. Dr. Wahid Bux performed the autopsy on the dead body on 26th September, 1969 and noticed the following injuries:- "(1) One transverse incise wound 6" x 2----- x bone deep present on the right side of neck cutting skin, muscles, great blood vessels, spinal cord oesophague, trachea and fifth survival vertebrae.
(2) One incise wound 1-1/4" x --" x present on the top of left shoulder.
(3) One vertical incise 3" x 1--" x 1" present on the extensor surface of upper part of right thigh.
(4) One incise wound 1" x ----- x on the middle 1/3 of mediale surface of left thigh.
(5) One oblique incise wound 7" x 2----- bone deep cutting muscles, blood vessels, first vertebrae and spinal cord were also cut, present below the back of neck."
5. The appellants were arrested on the morning of 2nd October, 1969 by Abdul Rashid S. H. O. While on patrol duty. Each of them at that time was riding a cycle. From the person of each of the appellants, a bunfyan, a shirt and a loin-cloth were seized. These articles were taken into possession in the presence of mashir, Jehan Khan, who had accompanied the police party while engaged in patrol duty vide mashirnama, Exh.
21. Soon after their arrest, the appellants took the mashir and the police party to a place in a jungle which was 500 paces away towards the east, where the dead body was found lying, and from the heap of sand each of them took out a blood- stained hatchet. They were secured under mashirnama, Exh.
22. Investigation revealed that the two cycles were taken on hire from Aligohar on 22nd September 1969 at 7-45 p.m. By the deceased.
Entry to this effect was noticed in the register which was seized under a mashirnama Exh.
24. The hatchets, articles of clothing and the blood--stained earth were sent for chemical analysis and according to the report of the analyst, both the hatchets, baniyan seized from the person of appellant Lalu and the earth were stained with human blood. Blood on the shirt of Lalu had disintegrated and its origin could not therefore be determined; while no blood was detected on his loin-cloth and on the clothes of appellant Ghulam Hyder.
6. The appellants in their defence denied the prosecution case and proclaimed their innocence.
Appellant Lalu denied the ownership of the clothes, recovery of the cycle and the hatchet. He also stated shat he was arrested from his house, and pleaded enmity against Jehan Khan and Ahmad Khan who had implicated his cousin, Kouro and others for theft. In proof of it he relied on Exh. 35, which is a discharge order passed in a case in which Didar was the complainant who is a nephew of Ahmad Khan. The other appellant also denied the recovery of the articles and his involvement in the crime and both of them pleaded their false implication.
7. There is no ocular evidence in the case. The circumstantial evidence of Abdul Latif and Himmat established that on 7-30 p.m. On 22nd September 1969 Lalu had come to the house and had taken the deceased alongwith him. On this point there is nothing to discredit their evidence. It further finds support from the fact that on that date, about 15 minutes thereafter the deceased had taken two cycles on hire, one for his own use and the other for Lalu. Thereafter the deceased was not seen alive. Abdul Latif and Muhammad Azim, who had gone to look for him, were told by appellant Lalu that he had returned the `previous day. Obviously it was a false explanation to explain the separation of the deceased from him. Thereafter both the appellants were arrested riding the cycles taken on hire from Aligohar. Appellant Lalu has merely denied that the cycle was not his but did not offer any explanation as to how he came into its possession. Over and above it one article of clothing i.e. Baniyan was found to be smeared with human blood, for which he has offered no explanation but merely stated that it was not his. Again his shirt had blood on it which is and even though it was not proved to be stained with human blood, yet it did not lose all its evidentiary value in the context of the circumstantial evidence, and lastly he produced a hatchet, of which he had exclusive knowledge and which was proved to be the crime weapon as it had human blood on it.
The evidence of the mashir stands unscathed and, therefore, the recoveries of the above articles cannot be doubted. All these pieces of cirumstantial evidence lead in our view to one conclusion and that is of guilt. The prosecution has accordingly established its case against him beyond reasonable doubt.
8. The enmity suggested in his statement is far too remote to be taken into consideration, for nothing transpires from the evidence as to why Ahmad Khan and Jahan Khan would be interested to implicate him. Even from the discharge order it transpires that there were a number of accused in that case and it is not understandable why they would be left out and he would be falsely implicated in the case.
9. While examining Exh. 17, which is an entry relating to the hire of the two cycles, the date on it was shown as 21st September 1969; we have, however, checked it from the original register and our scrutiny reveals that the date 21st September 1969 is a typographical error.
10. There now remains the case of appellant Ghulam Hyder to be considered. Against him, there is the evidence of the production of a blood-stained hatchet and the seizure of cycle. By itself, the first piece of circumstance can only lead to the inference that he had knowledge b of the place where the weapon was concealed, but it cannot lead to the conclusion that it was he who had used it. Again as to the second, his possession of the cycle has not been established to be with the intent as mentioned in section 404, P. P. C. There is no evidence to establish as to how he bad come into possession of it, and therefore his conviction cannot be sustained even on this charge.
Accordingly, while giving the benefit of doubt to appellant Ghulam Hyder we would acquit him and his appeal stands accepted. He should be set at liberty forthwith unless required in some other case. Finding no substance in the appeal of Lalu we dismiss it.