' Appellant Jan Muhammad alias Janu was tried for the murder of deceased Khandoo but convicted under section 325, P. P. C. And sentenced to 3 years' rigorous imprisonment by the learned III Additional Sessions Judge, Hyderabad, vide judgment dated 16th November 1974.
2. According to the prosecution case, the appellant and the deceased lived in adjacent houses in village Mewo Sahiwal, deh Wassan, Taluka Hale. The appellant suspected the deceased for having liaison with his wife. It is stated that at 8-30 p. m. On 2nd February 1973 while Shadi Khan was passing by the side of their houses he heard a commotion from the house of the deceased and having gone inside he saw the appellant and the deceased exchanging abuses, where after the appellant gave a stick blow on the head of the deceased, who fell unconscious and the appellant sat on him, but seeing Shadi Khan he left him and ran towards his house. Shadi Khan went and narrated the incident to Aaku, the uncle of the deceased, who came to the wardat and saw the deceased lying unconscious, who later died. Re left the others who had come to the wardat near the dead body and went to his Zamindar, Ghulam Muhammad Faqir, and gave to him the facts, who also came and saw the deceased lying dead. He then advised him to lodge the report, upon which Aaku went to Police Station Saikhat and lodged the F. I. R. At 23-45 hours which was recorded by Sujawal Khan A. S. I.
3. After recording the report, the A. S. I. Repaired to the wardat and saw the body of the deceased lying in the courtyard on a cot. There was no blood on the ground. Thereafter he sent the dead body for postmortem examination to the Medical Officer, Matiari and after despatching the body he examined Shadi Khan and arrested the appellant at 4 a. m. On 3rd February 1973. The appellant produced a Wanda' which was seized vide Mashirnama, Exh. 17, but it had no blood on it. He examined Qaiser, Ranjho, Fateh Muhammad, Ghulam Muhammad, Darhoon and others. The same day the appellant volunteered to confess and was produced before the S. D. M., Hala, who recorded his confession.
4. Dr. All Muhammad performed autopsy on the dead body and noticed the following injury "A contusion 2' x 1' on right temporal region under the midline of head." which, in his opinion, was caused by a blunt weapon, such as lathi and that it was sufficient to cause death in the ordinary course of nature.
5. The appellant denied having given the 'danda' blow and resiled from the confession stating that he was coerced to confess because his women-folk were detained at the police station. He also stated that he had a dispute with Darhoon, brother of the deceased, for lie owed him money but was not paying it back and on his demand he threatened to see him.
6. The trial Court in spite of the ,weaknesses in the evidence of Shadi Khan accepted it and so also the confession but did not convict the appellant for murder, because it was of the opinion that the appellant had no intention to kill as he had only caused one Vanda' blow and that too, as both of them had quarrelled over a trivial matter.
7. I have scrutinised the evidence with the assistance of the counsel for the parties. Shadi Khan is the only eye-witness, upon whose evidence A the case rests. He has not been truthful in his evidence, for he stated in cross-examination that he identified the appellant by his voice as there was no light in the courtyard. Not only this, he also admitted that the night was dark and that the face of the appellant was muffled. He even went to the extent of admitting that in the committal Court he had stated that the deceased had raped the wife of the appellant obviously to make out a case of grave and sudden provocation. He also resiled from his earlier statement that on his questioning the appellant he had told him that he had given a Wanda' blow to the deceased, because the deceased had "misbehaved physically with his wile" : vide Exh.
7. The appellant is his cousin and, therefore, there is reason for him to make his evidence doubtful.
It is true that the admissions cannot be regarded as honest, but the fact nonetheless remains that Ise is an unreliable witness, for he has readily changed for no genuine reason. In such an event it is difficult to place reliance on his evidence. As for Aaku, his evidence is corroborative and would not be sufficient to prove the identity of the appellant, for what he stated was based on the information conveyed to him by Shadi Khan who has himself perjured.
8. The last piece of evidence is the confession from which the appellant has resiled. Although it is not established that the confession was given under duress, still it appears to be untrue, for not only has he implicated himself but also Fatoo for having caused lathi blows to the deceased, which is false, for only one blow was found on the deceased. In this context it would be again a doubtful question as to who amongst the two had caused the blow. Moreover, there is no corroboration of the confession which is retracted. For all these reasons, the conviction is unsustainable. The learned Assistant Advocate-General has conceded that he cannot support conviction.
9. While, therefore, accepting the appeal, 1 would give the benefit of doubt and acquit the appellant. He should be released forthwith unless required in some other case.