JUDGMENT

Davis, J C - The appellant in this case is one Allahwarayo, son of Daryakhan, and he has been convicted by the Third Additional Sessions Judge of Hyderabad of the murder of one Bhaikhan and sentenced to transportation for life. The case of the prosecution is that Hayat, the son of the murdered man Bhaikhan, was on terms of intimacy with Changi, the sister of the appellant, and he at her request took her away and concealed her in the jungle. On the intervention of good men however Changi was restored to her relations but feeling between the two parties was bad. A few days before the offence Daryakhan, the appellant, his son, and Bachal, a cousin, waited for Hayat and his companion Sain Bakhsh as they returned from grazing goats, and Hayat only saved himself by taking refuge in a mosque. Bhaikhan, the murdered man, therefore forbade Hayat to take his goats in the jungle and took them himself. One Iso was grazing his goats near by and he was following his goats when he heard cries of "murder, murder" and saw the appellant and his cousin Bachal striking Bhaikhan with an axe and a lorh. Bhaikhan had a hatchet and struck Bachal in self-defence, but the appellant and Bachal killed Bhaikhan and ran away. One Ismail was also grazing his goats near by. Iso told Ismail of what had happened and they went together and saw the dead body of Bhaikhan. Ismail told Iso to inform Bhaikhan's relations. Iso told Dino who told Juman, Bhaikhan's son-in-law, and Juman went and reported the matter first to the police outpost at Mulla Katiar and then to the Thana at Tando Muhammad Khan at 4 p.m. The head constable came to the scene of the offence and the next morning went to the village of the appellant, some two miles away, and arrested the appellant and Bachal who was seriously hurt. Bachal was unconscious and could make no statement. The appellant produced two blood-stained hatchets; his trousers were stained with blood; his foot-prints were picked out by a pagi in a test, and on 21st November 1938 (the offence having been committed on the 19th) the appellant was sent to a Magistrate for recording his confession, and what has been regarded in this case as a "confession" was recorded. The chemical analysis showed that the hatchets and a lorh, which the police had also taken in the course of the investigation, and the trousers of the appellant, were stained with human blood. The appellant and Bachal were both challaned for the murder Bhaikhan but Bachal died in the hospital.

2. The case for the defence was put forward by the appellant in his statement made before the Magistrate on 21st November and adhered to by him at the trial. This statement is not and is not intended to be a confession of the murder of Bhaikhan. It is intended by the appellant to exculpate himself completely, and, if believed, the appellant would be entitled to be acquitted, for the appellant says he was with Bachal grazing camels in the jungle when Hayat and Sain Bakhsh, who were in the jungle while Bhaikhan stood near by, attempted to steal one of the appellant's camels. He and Bachal ran crying "thief, thief" when Sain Bakhsh and Hayat who had hatchets fought with Bachal while Bhaikhan fought with him. Bhaikhan struck him on the head and in consequence his turban was cut; his hand was also injured; he however grappled with Bhaikhan and they both fell on the ground Bhaikhan being uppermost, and it was while he was in this helpless position that he heard blows falling upon Bhaikhan; he got up and found Bhaikhan and Bachal on the ground; Bachal was injured in two places with a hatchet; one injury was on the head and one injury was on the arm; Bhaikhan was also injured but be did not notice his injuries minutely; Sain Bakhsh and Hayat were running away; he carried Bachal away who told him he had struck blows at Bhaikhan because he thought that Bhaikhan would kill him; he carried Bachal to his house and then Bachal's father came and then Daryakhan, the appellant's father, oam