ATAULLAH SAJJAD, J.-Ahmad son of. Ramzan resident of Mauza Buhar Police Station Taunsa in the District of Dera Ghazi Khan; has been convicted by Ch. Muhammad Rafiq Tarar, Sessions Judge; Dera Ghazi Khan, under section -302 of the Pakistan Penal Code for having committed the murder of Sohrab deceased on the night between-23rd and 24th of December' 1967, at about sehri the in the area of Basti Pir Di, Mauza Buhar, and has been sentenced to death. He has filed an appeal. The case is also before us in connection with Murder Reference No. 28 of 1969 fur confirmation of the death sentence. This judgment will dispose of both the matters.
2. Sohrab deceased had married Mst: Khanai a few .Months before the occurrence. This woman had been divorced by her to previous husbands, namely, Yusuf and Muhammad and the latter had divorced her after receiving Rs. 1,800 from Sohrab. The deceased was more than 55 years of age and we find from the evidence of Mst. Khanai that he had already to wives but was issueless.
3. The motive alleged by the prosecution for the commission of the offence is that the appellant who was a neighbour of Sohrab deceased in Basti Pir Di made indecent overtures to Mst. Khanai but she told her husband about these overtures. About five or six days before the occurrence, I Sohrab deceased admo--nished the appellant for his misbehaviour. This was followed by an altercation and exchange of abuse between the appellant and the deceased.
40. On the night between 23rd and 24th of December 1967, corresponding to the 21st of the month of Ramazan, Mst. Khanai and Sohrab deceased were sleeping in their kotha on separate cots. The door of the kotha could be bolted from outside by passing a hand. The deceased had bolted this door on the night of the occurrence. At about Sehriwela Mst. Khanai woke up on hear--ing the alarm of her husband. In the moonlight she identified the appellant as the assailant of her husband. He was given blows with a chhurra to Sohrab. She ran out of the kotha raising an alarm which attracted to the spot Ahmad and Khamisa P. Ws. 9 and 10 respectively who were having a round of their fields near the place of occurrence. They tried to catch hold of the accused but he threatened them with the chhurra that he was holding in his hand. The appellant made good his escape. Mst. Khanai and the to witnesses mentioned above on entering the kotha found that Sohrab had already died. Khamisa P. W. Was then sent to Tibbi Sihani which is at a distance of eight or nine miles in order to inform Ahmad a brother of the deceased. Ahmad came to the spot with Khamisa after sun rise, As he was tired, Mst. Khanai proceeded to the police station to lodge the F. I. R. But she had covered about one and a quarter mile when she met A. S. I. Faizullah Khan of police station Taunsa in village Buhar where she dictated her statement Exh. P. J. A formal F: I. R. Exh.
P. J./1 was registered at the police station later on. Mr. Faiz--ullah Khan after recording the statement reached the spot and prepared the injury statement and the inquest report of Sohrab deceased. He sent the dead body for post-mortem examination through Ghulam Qadir foot constable. He took into possession blood-stained earth from beneath the cot of the deceased. He also took into possession scabbard P. 5 which was lying near the cot of the deceased, the cot P. 6 itself, mattress P. 7, quilt P. 8 and safa P. 9 vide memo. Exh. P. D. All these articles were stained with blood.
5. The appellant was arrested on 24th of December 1967. He was wearing blood-stained clothes.
The A. S. I. Removed his shirt P. 11 and chaddar P. 12 from his person. They were sealed into a parcel and memo Exh. P. G. Was prepared. The appellant led to the recovery of chhurra P. 10 from behind an earthen bin in his residential kotha. This chhurra was also sealed into a parcel. These articles were sent for chemical examination. The scrappings from the scabbard and the chhurra were examined and it was found that blood on them had disintegrated and their origin could not be determined. The earth and the clothes removed from the body of the appellant at the the of the arrest had been found to have been stained with human blood.
6. Dr. Syed Muhammad Ramzan Ali Shah (P. W. I) per--formed the autopsy on the dead body of the deceased and found the following injuries thereon :-
(1) In front and 3" above the umblicus there was a transverse stab wound measuring 2--" x 1--". The wound was cutting the abdominal wall, the muscles and the internal covering of the abdominal over the viscera 2-- feet of the small intestine was protruding out of the wound.
(2) Three inches above and lateral and left to the abdomen to injury No. 1, there was a cut wound which measured 1--x --". The skin was cut completely and the flesh partially.
(3) There was a stab wound --" above and medial to the left nipple measuring 1" x --" which when dissected showed that the wound was cutting the skin, the muscle, the underlying rib and was approaching to the front of the heart, where the heart was cut completely with a dimension of --" of an inch.
(4) Two and a half inch left to injury No. 2 there was cut wound 4" x 1--" cutting the skin and muscle only.
(5) One inch away to the termination of injury No. 4 there was a stab wound which was 1" x --" which had pierced the back abdominal wall muscles and had reached to the spleen where it gave a sharp cut to it of the size of half inch.
(6) One-fourth inch below the injury No. 5 again a stab wound measuring 1" x --" the wound had also pierced the back abdominal wall muscles and had reached to the spleen where it had made a cut --" near and below to the formal cut of the spleen due to injury No. 5.
(7) Stab wound 2" x --" over front of the left upper arm at its middle. Skin and muscles cut only.
(8) One inch x --" cut wound over medial side of the right thigh at its middle skin only cut.
In the opinion of the doctor, injuries Nos. 1, 3, 5 and 6 were fatal, particularly, injury No. 3 due to which heart had been cut and death had occurred on account of loss of blood. The death according to the medical opinion was instantaneous and probable the between death and post- mortem was twelve hours. Some semi-digested food was found in the abdomen and bladder was found empty. The doctor was of the opinion that the injuries could be caused by one weapon, possibly a chhurra. When questioned, during cross-examination, the doctor stated that in his opinion the stab wound found on the abdomen had been given first and the back injuries were inflicted on the deceased when he tried to escape.
7. The ocular testimony in this case consists of the statement of Mst. Khanai (P. W. 8), Ahmad (P. W.
9) and his servant Khamisa (P. W. 10). The witnesses of recovery of clothes and churra etc. Are Sultan Khan (P. W. 6) a Member of the Union Council Makwal Kalan and Fateh Muhammad (P. W. 7)
Gambar--dar of Mauza Buhar.
8. The case of the appellant as it appears from the cross--examination of the prosecution witnesses and his own statement made at the trig' is that he was falsely involved in this case on account of enmity with Ahmad and Khamisa P. Ws. Ahmad was against him because he had opposed him in the last B. D. Elections and had refused to vacate the land belonging to Ahmad which was in possession of the appellant. It was further stated that the said Ahmad was a bad character and had illicit relations with Mst. Khanai. Actually, we find a suggestion in the cross-- examination of Mst. Khanai and Ahmad that she and Ahmad were responsible for the murder of Sohrab. Khamisa, according to the defence, had deposed against the appellant because the latter was carrying on with Mst. Fatima the wife of the brother of this witness.
9. It appears from the record that the version of Mst. Khanai before the Committing Magistrate and at the trial as to how and where indecent gestures were made to her is conflicting. She claimed at the trial that she was a pardanashin woman and did not go out. She stated that the appellant used to wink at her from his own house. Before the Committing Magistrate she had stated that the appellant used to tease her when she went out for grazing the cattle. The statements of the to eye- witnesses i. e. Ahmad and Khamisa with regard to the place from which they started for a round of their fields are not uniform. While Ahmad stated that Khamisa was sleeping in his house, the latter denied that he was sleeping in Ahmad's house and stated that Ahmad fetched him from his i. e.
Khamisa's house for a round of the fields. Ahmad claimed to have taken his sehri meals before going out for a round. Khamisa stated at the trial that he had not kept fast on that day although he stated differently before the Committing Magistrate. His stand at the trial was that he was sleeping in his house when Ahmad woke him up and asked him to accompany him to have a round of their fields. Both the witnesses denied the suggestions of enmity made during the cross--examination and later on stated by the appellant during his exami--nation. Ahmad expressed his ignorance as to which side the family of the appellant had voted and further asserted that the appellant was not at all a voter in his constituency. He admitted that the shamlat land on which the appellant had constructed his house belonged to him but he denied that he had asked him to vacate it. He also denied the suggestion of any intimacy between himself and Mst. Khanai. Similarly, Khamisa denied the sugges--tion that the appellant was carrying on with his brother's wife Fatima and he had become hostile to him on that account.
10. We have gone through the record with the assistance of the learned counsel on both sides and we feel that the prosecution have not been able to bring home the offence to the appellant beyond reasonable doubt. The discrepancy in the statement of Mst. Khanai regarding the place and manner in which the appel--lant made indecent overtures to her is, not easily reconcilable.
Similarly, the statements of Ahmad and Khamisa do not carry conviction. According to these witnesses they were on a round of the fields which were on the western side of the basti. Ahmad stated that the land was his khud kasht probably through one Jamal but Khacnisa claimed that he had cultivated that land. Allah Bakhsh Patwari (P. W. 5) gave lie to both of them by stating that Ahmad P. W. Had no land or cultivation on the western side of the basti.
11. Khamisa stated that there had been thefts of crops during some the past and they had come to keep a watch. It is most unlikely that in such circumstances they will come unarmed. The place of occurrence according to Allah Bakhsh Patwari (P. W. 5) is surrounded by residential houses on the nor--thern, eastern and western sides at a distance of 10/ 15 karams. Mst. Khanai also admitted that there are houses near the spot on its eastern, western and northern sides but she was not able to give the exact distance. Ahmad is a zamindar of some consequence in the locality and if he had seen the offence being committed in his presence, it would have been natural for him to give a chase to the appellant and raise a hue and cry. If this had been done, since it was sehri the, the people living in the surrounding houses must have been awakened and would have certainly followed the appellant and apprehended him. We find from the cross-examina--tion of Khamisa that he was still in the basti when he heard the azan and offered his prayers. He did not know whether Ahmad had offered that prayers or not. Ahmad on the other hand stated that he had not heard azan that morning. If Khamisa's statement is to be believed then the occurrence must have taken place some the after azan. There is a mosque at a distance of about twenty --five karams from the place of occurrence and we do expect that there must have been some persons present in the mosque at that the.
12. The doctor found. Some undigested food in the stomach of the deceased but was not able to make out the constituents of the food. He was of the opinion that the food had been taken more than six hours ago. The process of digestion, according to him, starts just from the mouth when the food mixes -with the saliva. Now we find it from the statement of Mst. Khanai that the couple had taken their meals at Iftar the which according to the calendar was about 5-06 p.m. And after that the deceased had been sleeping till he was done to death. The bladder of the deceased was found to be empty. This would show that he met his death soon after urinating. If death had been caused at sehri the the doctor could not have found the semi-digested food in the stomach of the deceased nor his bladder could have: been empty.
13. There is another significant omission in the evidence of Mst. Khanai. She has not explained in any way as to how the deceased got injuries Nos. 5 and 6 which were on the back abdo--minal wall.
According to her, he was lying with a quilt on but the A. S. I. Did not find any cut on the quilt. The A. S. I. Admitted that the quilt was stained with blood as were the mattress and the cot on which the dead body was lying. Strangely enough, no parts of these articles were sent for chemical examination.
14. If Mst. Khanai was sleeping in the kotha along with the deceased, she should be regarded as a natural witness. Her state--ment is, however, to be examined in the light of the probabilities of the case. The occurrence definitely took place at sehri the but she started for lodging the report some the after sunrise.
The reason given for this delay is that she had sent Khamisa to fetch Ahmad the brother of the deceased. Strangely enough, the brother of the deceased even after reaching the spot expressed his inability to go to the police station on. The ground that he was tired. This appears to be very callous and unreasonable excuse on the part of a brother. As stated above, Ahmad P. W. Is a person of some consequence in the locality. The abadi of Buhar is at a distance of 1-- miles from the place of occurrence -where there is a B. D. Member and also a Lambardar. Both of them could have been informed soon after the occurrence and some body could have gone to lodge the report to the police. The distance of the police station from the place of occurrence is only six miles.
The report, therefore, is extremely delayed. No satis--factory explanation has been furnished for this delay. The accidental manner in which Mst. Khanai met the A. S. I. In village Buhar also casts grave doubt on the whole case. Usually, when an S. I. Meets the first informant near the place of occurrence, the Courts have to be very cautious to find out whether the F. I. R. Was lodged as deposed to by the prosecution. It was held in Muhammad Siddig v. The State (PLD 1958 Lah. 601) that where the thanedar conve--niently happens to be present somewhere in the vicinity, the inference is unavoidable that in fact the F. I. R. Was recorded at the place of occurrence after preliminary investigation.
15. We also cannot be sure whether Mst. Khanai saw the occurrence or identified that assailant. Her statement is contradicted by medical evidence. She stated that in the cry that she had raised, she had named the appellant. Khamisa, however, stated before the Committing Magistrate that she was raising the alarm that someone was killing her husband. This admission or the part of Khamisa with which he was duly confronted at the trial, clearly shows that the assailant was not identified and the name of the appellant was introduced later on.
16. Since we have not believed the ocular testimony, the mere recovery of blood-stained clothes from the person of the' appellant is not sufficient to warrant his conviction. We, therefore, need not say anything ab8ut this aspect of the case.
17. The result is that we allow this appeal, set aside the con--viction and sentence of the appellant and direct that he be released forthwith unless he is required to be lawfully detained in some other case. We refuse to confirm the death sentence.