GHAUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Is preferred from the Jail against the judgment dated 20th November, 1975, of the learned Ist Additional Sessions Judge, Larkana, whereby the appellant Mohammad Ayoob has been convicted under section 302, P. P. C. And sentenced to imprisonment for life.
2. The brief facts of the case are mentioned in the F. I. R. Lodged by one Budhal Khokhar, father of the deceased on 9th September, 1974 at police station Rato Dero of District Larkana, which reads as under:- "About 6/7 years back, I got married my daughter Mst. Zeba with Ayoob son of Allahyar by caste Khokhar resident of Panjoo Lorar, Taluka Rato Dero from whom she has one son, namely Uris. My son-in-law Ayoob had agreed `Jandoparo' (An agreement to live with in-laws), hence he was residing with me. He alongwith his were had been sleeping in the house adjacent to the cattle-pen.
From a long time Ayoob had been asking that his were may be given to him, so that he may reside separately. But we refused that your were will not be given to you to live anywhere else, because there is 'Jandoparo' (An agreement to live with in-laws) which annoyed him. About four/five days back, Ayoob exchanged harsh words with my were (his mother-in-law) Mst. Qaim Khatoon and further added that I shall make you weeping so that you will remember throughout your life. Last night as usual Ayoob alongwith his were and son had slept in the cattle-pen. At about mid-night, we heard cries of Murder ! Murder ! On the cries I rushed towards the cattle-pen in the light of my torch. Closely to the cattle-pen there were Sultan son of Khuda Bux (2) Nasir Mohammad son of Illahi Bux on their roofs (who had slept on their roofs). In the torch light I found that my son-in-law Ayoob is slaughtering his were, Mst. Zeba by sickle. We challenged him on which Ayoob ran away towards east alongwith the sickle. Thereafter we went there and found that my daughter Mst. Zeba was slaughtered from her neck, within our sight, she had died. I passed the remaining portion of night at the dead body of my daughter. Now I have come to lodge report that my son-in-law, Ayoob has slaughtered and murdered his were by sickle on account of living separate, complaint is being lodged, justice be done."
3. The F. I. R. Exh. 8 was recorded by Syed Mohammad Abid (P. W. 7) S H. O., who proceeded to vardat which was shown to him by the com--plainant Budhal. It was situated in the cattle-pen of the complainant in village Ranjoo Lorir where dead body of Mst. Zeba was lying in a pool of blood with an injury on her neck. The S. H. O. Secured the blood sealed it and prepared such mashirnama Exh. 16, in presence of mashirs Sahib-Dino and Ghulam Sarwar who signed it. He then prepared the inquest-report vide Exh. 18 of the dead body in presence of the same mashirs and sent the dead body to the Medical-Officer, Civil Hospital, Larkana for post-mortem examination through P. C.
Hajan. He recorded the statements of Sultan and Nasiruddin on the same day. The complainant Budhal produced his torch which he secured in presence of mashirs Sahib-Dino and Khan Mohammad. It was in working order and such mashirnama was prepared as Exh.
17. He went in search of the accused whom be found near 'Sim' Minor where he was arrested after interrogation.
He secured shirt, loin-cloth and "Angosha" from the person of the accused which were blood- stained and prepared such a mashirnama Exh. 19 in presence of the mashirs. Then the accused led the police and mashirs to a heap of "Palal" and produced a "Kati" which blood-stained. It was secured, sealed and such mashirnama Exh. 20 was prepared by the S. H. O. In presence of the mashirs. The accused had an injury on his left hand. He was therefore referred to the medical officer Rato-Dero for examination of his injury on the same day, and he sent the blood-stained clothes and a ---Kati" to the Chemical Analyser. Karachi, for analysis and report which is Exit. 25.
4. The prosecution case is mainly based on the statements of the eye-witnesses, Budhal, Sultan and Nasir Mohammad, the evidence of motive medical evidence and the recoveries blood-stained clothes and a 'Kati".
5. The accused however denied all the allegations and claimed to have been falsely implicated due to enmity in this case by the complainant, who had turned him out of his house six months prior to this incident was he gas suspected to be on illicit terms with his second were namely, Mst.
Saheb. He was arrested from police station Bakrani, where he had gone to see his brother who was detained there.
6. There is no doubt that the deceased Mst. Zeba died on the day and place of incident as stated in the F. I. R. As a result of injuries. Dr. Wahid Bux Sheikh who performed the autopsy has deposed as under:- ---On 9September, 1974 I was Medical Officer Civil Hospital Larkana, when on that day Ratodero police station sent me the dead body of deceased Mst. Zeba were of Ayoob Khokhar through P. C.
Hajan B No. 241 for post-mortem examination and report. The dead body was identified by Ahsan Ali and Mst. Meherkhatoon the relatives of the deceased. I bad started the post-mortem at 1-15 p.m.
And finished at 2-15 p.m. On the same day. The dead body was of a young woman aged about 22 years, cold, average built. The rigor mortis was present. On eternal examination, of the dead body, I found the following injuries:---
(1) One transverse incised wound 4" x 2'' x 1" present on the middle of front of neck and extending towards the both sides of neck cutting through skin, muscles, great blood vessels, oesophagus, and trenches. (The lateral margins of the wound were found serrated). There were also five separate cuts on the spinal column in the middle of cervical region anteriorly close to each other.
On internal examination I found the following. There were superficial cuts present on the 3rd, 4th and 5th cervical vertibra anteriorly, The trenches was cut through. The right side of the heart con-- tained blood. The oesophagus was cut through. The stomach con--tained very small amount ofth semi digested food material. The bladder was half full of urine. On the external as well as internal examination of the dead body. I am of the opinion that death was due to shock and haemorrhage caused by injury to neck by sharp---cutting weapon having few serrations. The injuries were ante.
Mortem. The death was instantaneous and the probable time between death and post-mortem was about 12 hours, The injury No. 1 was sufficient to cause death in ordinary course of nature. I had issued such post-mortem notes which I produce as Exh. 5-A. It is same correct and bears my signature."
7. The question therefore for determination is whether the offence was committed by the appellant or somebody else? In this regard prosecution led ocular testimony, evidence of motive, medical evidence and recoveries.
8. The complainant has stated that the deceased Mst. Zeba was his daughter who was married to accused/appellant about 6/7 years prior to this incident. It was agreed between the parties at the time of marriage that the appellant would live alongwith his were in the house of the complainant as "Ghar-Damad" and as such he was living with him accordingly. The appellant/accused told the complainant about one month prior to this incident to allow him as well as his were to live separately. The complainant however aid not agree with this proposal as he had agreed to live with him at the time of his marriage. The appellant/accused was therefore annoyed and he had abused the complainant and his were and also, threatened them The accused also abused his were Mst. Qaim Khatoon on account of it. It was about a month after this when the complainant was sleeping in his house and the accused Mohammad Ayoob alongwith his were Mst. Zeba was sleeping in his cattle-pen when at about mid-night he were up on the pries and went towards his cattle-pen where he flashed his torch and saw that the accused/appellant Ayoob was slaughtering his were,Mst. Zeba with a "Kati" like a sickle. P. Ws. Sultan and Nasir Muhammad were also attracted on the cries and they also saw the incident from the roof of their houses. Ayoob accused left the `vardat' before the complainant reached there. Sultan and Nasir Mohammad also came there and they found Mst. Zeba was lying dead. There was pools of blood, he informed Sultan and Nasir Mohammad that accused Ayoob had slaughtered his were Mst. Zeba. They also informed him that they had also identified the accused Ayoob. The complainant left for police station early in the morning where he lodged his F. I. R and on arrival of police produced his torch-- - No material contradictions have been brought out on the record except that P. Ws. Sultan and Nasir Mohammad are closely related to the complainant. The improvement of weapon used in the commission of crime from sickle to "Kati" like a sickle is also made.
9. P. Ws. Sultan and Nasir Mohammad, who are also eye--witnesses of the occurrence have deposed that they were sleeping on the roofs of their house. They were up on the cries of murder!
Murder! They saw complainant Budhal, who was flashing his torch and they saw accused Ayoob slaughtering his were with a "Kati" like sickle in its shape. The accused thereafter went away. Both these witnesses went to vardat and saw the deceased Mst. Zeba lying dead. Budhal also informed them that he bad seen accused Ayoob slaughtering his were. They then waited over the dead body and the complainant left for police station in the morning.
10. The complainant has deposed to on the point of motive that the accused was annoyed on being not allowed to take away his were and live separately from his in-laws.
11. The medical evidence as already discussed above confirmed death of Mst. Zeba by way of injuries caused by sharp-cutting weapon having few serration on person of the deceased.
12. As far as recovery of "Kati" is concerned, it has got to be ruled out of consideration in this case in view of the fact that it has been very specifically said by the complainant as well as the eye- witnesses that the appellant was slaughtering Mst. Zeba with a sickle. The "Kati" which has been recovered from the place pointed out by the appellant/accused is not in shape of a sickle.
Moreover it is alleged to have been recovered from a place situated inside the `'palal" grass about 100-125 paces away from the house of the complainant. Mashirs Sahib Dino has stated in the lower Court that, "accused then voluntarily led us to the house of the complainant and produced the `knife'," vide extract Exh.
21. Regarding recoveries of blood-stained clothes consisting of loin-cloth and "Angosha". It is very difficult to rely on such recoveries as well as on evidence of mashie of recoveries as the mashir in the first instance is very closely related to the complainant being his maternal uncle as admitted by the complainant and secondly all the three blood-stained clothes have been secured from the person of the appellant when he was arrested at 4-00 P. M. But bad not yet changed and continued to retain the blood-stained clothes on his body though he had ran away from the spot after commission of murder during the night.
13. We have heard the appellant in person and Mr. Murtaza Hussain, the learned counsel for the State, who has stressed that ocular testimony consists of natural and reliable witnesses who are not at all inimical to the appellant. He has also contended that recoveries of blood-stained clothes and "Kati" be believed and the motive stand proved whereas the appellant has failed to prove what has been alleged by him as basis for his false implication in this case.
14. We have given our anxious thought to the contention of the learned counsel for the State. The village consists of people of different castes and sufficiently populated one, still not a single independent witness has been cited to corroborate the prosecution case. The accused has been seen by the complainant, Sultan and Nasir Mohammad only who were closely related interse as Sultan is complainant's cousin, whereas Nasir Mohammad is his "Phuphat" (cousin) and Sahib Dino is maternal uncle of the complainant. Moreover all the eye-witnesses have stated that the incident took place during the midnight and nobody came on the cries till "Fajr" time or the "morning" which also casts shadow of doubt on the prosecution case. It is very seldom that people of the village do not come out from their houses on cries when such incidents take place and particularly when they sleep out in open i.e. The courtyards in the month of September. It is also of a paramount consideration that police station, is situated only at a distance of three miles from the place occurrence still the complainant left for lodging the report in the morning which was recorded at 8-00 a. m. This also creates doubt in our mind if the incident was actually witnessed by any one at the time when the occurrence took place or it was for the first time that they learnt about it in the morning when they found "Mst. Zeba" lying dead. We are however of this view that the incident has not been witnessed in the manner as deposed to by the witnesses as they would not have left him to go like this as he was not having any fire-arm with him and could have been easily followed if he had been seen in actual exercise of slaughtering his were on a torch light. We are therefore of the view that the ocular testimony does not inspire confidence so as to be made sole basis for conviction under the circumstances of this case. We therefore giving benefit of doubt to the appellant, set aside his conviction and sentence. He shall be set a; liberty forthwith if not required in any other case.
15. In the result, the appeal is allowed and the conviction and sentence of the appellant are set aside.