' AGHA ALI HYDER, J.-The appellant was convicted by the learned Sessions Judge, Sanghar, for an offence under section 302, P. P. C. And sentenced to undergo life imprisonment. He has preferred an appeal from Jail.
2. The prosecution story, in brief, is that the appellant had been married to Mst. Janu some twenty- three years earlier and had two children from the said union. However, nearabout the time of the incident, he was eager to contract a second marriage, and, as Mst. Janu was in his way, he is alleged to have struck her with a `pahori' on the evening of 19-5-1971 at his house, in village Buchu Chandio, Taluka Shadadpur. The incident is alleged to have been witnessed by two maternal uncles of Mst. Janu, namely P. Ws. Chanoon and Sajan. P. Ws. Chanoon and Sajan awaited for the arrival of Amb, the brother of Mst. Janu, who is stated to have gone to Fiala. The latter returned to the village the following day at about 10-00 a. m, and was apprised of the happenings. Mst. Janu succumbed to her injury at about the midday. It was thereafter that Amb had proceeded to the Shandadpur Police Station, which was for miles away, and lodged the First Information Report at about 2-15 p. m. S. H.
0. Ali Anwar, after recording the report, proceeded to the 'wardat", and prepared the `Mashirnama" thereof, and the inquest report. He made enquiries from P. Ws. Chanoon, Sajan and Mst., Fatima, the daughter of the deceased. The appellant presented himself before the S. H. O. At about 6.00 p. m.
And is stated to have produced a blood-stained `pahori' from the house. It came to be sealed at the spot, and was later on sent to the Chemical Examiner. After due investigation, the case came to be challaned in Court.
3. The stand adopted by the appellant at the Court of Enquiry as well as at the trial was that Mst.
Janu had died due to an injury sustained by her as a result of a fall of a beam from the "Manah", and he had been maliciously run down by his in-laws, who were on inimical terms with him.
4. The death of Mst. Janu, as a result of the injury sustained by her, has not been challenged.
According to Dr. Abdul Hague Nizamani, who had held the autopsy, the injury was one lacerated wound it in diameter circular along with swelling 8" x 4" around it, over the frontal region with wound totally on the left side of the head, and was sufficient, in the ordinary course of nature, to cause death, which was due to haemorrhage, However, in this very context, it might be mentioned that he conceded that the death might have occurred as a result of a fall of a beam from the "Manah' of a height of about ten feet.
5. Both P. Ws Chanoon and Sajan have testified that, on hearing the shriek of Mst. Janu and Mst.
Fatima, they had gone inside the house of the appellant and seen him striking Mst. Janu with a `pahori, who was lying in the courtyard of the house. They had remonstrated with the appellant at this uncalled for attack, but the latter had told them not to interfere with his personal affairs.
Thereupon, they had returned to their house. It was when Amb had returned to the village the next day that they had informed him of the incident. Mst. Janu had breathed her last some two hours later. It is an admitted position that none of these two witnesses, in spite of the closest tie, were on visiting terms with the appellant. P. W. Chanoon had admitted that the appellant had appeared as a witness against him in a case under the Abkari Act, which was pending in the Court of the Resident Magsirate, Tando Adam, and that he himself had appeared as a prosecution witness against the appellant in a case filed by Arbab, nephew of P. W. Sajan. It is also admitted by the complainant Amb that P. W. Chanoon had filed a theft case against the appellant, Moula Bux, and his brother, Karim. With the relations being so strained, and the witnesses admittedly living at some distance from the house of the appellant, it is surprising that they should have rushed to his house on the cries of the inmates of the appellant's house, and further that they saw the appellant giving 'pahori' blows to Mst. Janus and just remained placid spectators of the incident. They have stated that she had bled from the injury and still they do not say that they had either mentioned it to anybody, or, taken the information to the custodians of law and order. They had felt their conscience satisfied by breaking the news some eighteen hours later to Amb when he happened to be back to the village. There are a number of other people living nearabout the 'wardat, but nobody had either turned up, or, been examined at the trial. However, it is common ground that Mst. Fatima, a girl of sixteen years, was very much present at the time of the alleged incident.
Enquiries had been made from her by the police, but she also did not enter the witness-box. The absence of Amb from the village is just a cock and bull story. It appears that it was only after the death of Mst. Janu that the complainant's party decided to spin out a false case against the appellant to feed fat the grudge they bore against him. That accounts for delay in the report. The evidence of the Medical Officer, as referred to earlier, also approximates with the version of appellant that Mst. Janu had met her end as a result of an unfortunate accident, which was the falling of a beam from the `Manah'. Even the motive, put forward, is hardly worthy of any credence, as the girl, on whom tie appellant a man in the evening of his life, had an eye, as admitted by the witnesses, was only seven/eight years old. There is no other evidence from any other quarter even in regard thereto.
6. The only other piece of evidence against the appellant is the production of a 'pahori' which had been found by the Chemical Examiner to have been stained with human blood. The 'Mashie examined, in that context, is P. W. Ghulam Hyder. He had stated at the Court of Enquiry, duly brought on the record, that the appellant had not produced the 'pahori'. He had further added there that a wooden beam weighing about two/threemaunds had fallen from the 'Manah' causing injury to Mst. Janu. Otherwise too, the 'pahori' was lying in the house. The S. H. O. Had inspected the 'wardat' at about 3.30 p. m. While the appellant had been arrested at about 6.00 p. m. The 'pahori' is alleged to have been lying in the house itself, and it is remarkable that the S. H.
0. Failed to have a look at it, and waited only for its production by the appellant a few hours later.
Apparently, it is a mere padding and devoid of any value.
7. Mr. Manzoor Hussain very fairly conceded that, in the circumstances of the case, he could not support the conviction. The stand adopted by him is extremely fair. We would, therefore, set aside the conviction and sentence and allow the appeal. The appellant is in custody and shall be released forthwith unless wanted in connection with some other case.