G. M. SHAH, J.-The appellant Khuban son of Gaman, Hindu, Odh, has been convicted by the learned Sessions Judge, Sanghar, under section 302, P. P. C. And sentenced to imprisonment for life, for committing the murder of his wife Shirimati Marwan, vide judgment dated 29-5-1978. Being aggrieved by and dissatisfied with the judgment of conviction and sentence, the appellant has filed this appeal.
2. The case of the prosecution, briefly, is that Shirimati Marwan was married to the appellant five or six years before the alleged occurrence. A daughter was also born to them out of the wedlock.
About one month before the occurrence, the deceased Shirimati Marwan had gone to visit her parents and had complained to them against the appellant for maltreating her, on ground of not being of good character. She stayed with her parents, who did not allow her to return to the appellant. Consequently, the elders of the family of the appellant namely Gaman, father of the appellant and Chano, Matar and Reshmo, Odhs, approached uncle of the deceased Chetan (P. W.
5) and others, in a deputation and asked for the return of the deceased. Cbetan, Mohan, brother of the deceased, and her other relatives, told the deputation that the appellant was beating and maltreating the deceased, therefore they were not prepared to allow her to go back to the appellant, unless a guarantee was given by them. On an assurrance given by the members of the deputa--tion, the deceased was allowed to go with them.
3. One day before the occurrence, P. Ws. Chetan and Mohan had gone to meet the deceased, when the deceased complained to them again, that the appellant was maltreating her, in the same manner, as before. Both Chetan, as well as, Mohan again asked the appellant and his father Gaman, that in spite of the guarantee given by them, that the appellant will not ill-treat the deceased, she was being maltreated by the appellant. Once again, Gaman promised to reprimand the appellant, who was present there, over which, the appellant got annoyed and started threatening and abusing the deceased, in presence of her uncle Chetan and brother Mohan.
4. At about 10 a.m. Next morning (31-5-1975) the deceased went with her father-in-law Gaman, to the fields for cutting the grass. The appellant followed them and asked his father to go back to the house and himself volunteered to go with .The deceased, for cutting the grass. The appellant was armed with a hatchet. The prosecution case, further is that after a short while, Chetan, uncle of the deceased, and her brother Mohan, went out towards the jungle to ease themselves. When they reached near the field of the appellant, they heard cries of the deceased and saw that the appellant was giving hatchet blows to her. They challenged the appellant, who ran away, carrying the hatchet. They raised cries for help, which attracted witnesses Matar, Gaman, Chano Odhs and Nabo Jokhio. , All of them chased and caught the appellant. Chetan proceeded to the Police Post, Khahi, covering a distance of 2 to 3 miles, and lodged the F. I. R. At 4 p.m. (Exh. 13).
After recording the report of Chetan, ire Station Diary, the Head Con--stable Imam Bux, incharge of Police Post Khahi, sent its copy to the Police Station Phullahyoon, for incorporating it in. The 154. Cr.
P. C. Book. When Head Constable Imam Bux reached the place of occurrence, accompanied by Chelan, he found the appellant tied, and was in custody of P. Ws. Matar, Gaman, Naboo and Wasayo, who produced him before the said police officer. The witnesses also produced before the police, a blood-stained hatchet, which was snatched by them, from the appellant. The hatchet was secured and sealed. The shirt and trousers, worn by the appellant were found blood-stained, and were also secured and sealed. The dead body of Shirimati Marwan was sent for post-mortem examination to Medical Officer Civil Hospital Sanghar. Blood-stained earth, as well as, the corn grass having blood on it, were alsa collected and sealed. Next morning the investigation papers were handed over by Head Constable Imam Bux, to the S. H. O. Phulhahbyoon Police Station. On 2- 6-1975, the S. H. O. Produced the appellant before the Civil Judge and F. C. M. Sanghar, for recording of his judicial confession, which was in the following words ---About 7 years back, I was married to Mirwan. She had given birth to one daughter. My wife often used to reside with her parents, therefore I suspected that she was in toe with, some one. For 2 or 3 times she promised to go to her parents, but she did not go there, and thereafter, I came to know that she had gone to other persons. Therefore, I got `Ghairat' and decided to kill her. On last Saturday, in the morning, I took her with me to cut the grass. I having reached in the land, in 'Deh'
Tharadi, gave her two hatchet blows and killed her. She received one injury on her forehead, while the other, on her neck. She was bleeding (from the injuries) and breathed her last gasp at the spot.
Thereafter, my relatives saw me going with blood-stained hatchet. They caught hold of me, and produced me before the police. Nobody had witnessed the above incident. I had a hatchet of my own. I have produced the blood-stained hatchet before the police.--- After completing the formal investigation, the S. H. O. Submitted the final charge-sheet in the Court.
6. In his statement at the trial, the appellant had denied the prosecution case. He denied having caused injuries to the deceased. He contended that the police had called him at the scene of offence and had beaten him and then arrested him, As regards his judicial confession, he stated that he did confess before the Civil Judge and F. C. M., Sanghar and the confession bears his thumb impression but asserted that the judicial confession is neither true, nor voluntary. He explained that the police had taken his mother and father to the police station and had threatened him that if he did not confess, they would insult his parents and implicate his father in this case. He further stated that the S. H. O. Had abused his father, in his presence and threatened him that if he (appellant) did not confess, they would beat his father and the mother. He went on to state that he loved his wife and has been made scapegoat in this case. To a question as to why the witnesses were deposing against him, he replied that he had enmity with one Nemo, a man of the Zamindar, with whom, he had fought, one month before this occurrence, and was hence, falsely implicated in this case. He has however led no defence.
7. The autopsy on the dead body was conducted by Dr. Faiz Mohammad, Medical Officer, Civil Hospital Sanghar, on 1-6-1975. On external examination, the following injuries were found on the deceased :-
(1) Incised wound 4" x --" x brain deep on left mastoid region. Brain matter had come out of the wound.
(2) Contused wound 3" x 1/3" x bone deep on frontal bone.
On internal examination of the dead body following damages were found
(1) Skull bones were fractured under the above-mentioned external injuries.
(2) Brain membrance were cut under external injury No. 1.
(3) Cranial vacity was full of clotted blood and brain matter was badly damaged.
(4) Right chamber of the heart was full of blood and the left chamber was empty.
(5) All other organs of the chest were congested.
The injuries were ante-mortem. Injury No. 1 appeared to have been caused by a sharp cutting weapon such as hatchet and injury No. 2 by a blunt object, such as back side of the hatchet or a lathi. Injury No. 1was individually sufficient to cause the death in the ordinary course of nature. The death was instantaneous. According to the doctor the cause of death was due to shock and haemorrhage consequent to injuries mentioned above.
8. We have heard, at some length, Mr. Allahdino Memon, the learned counsel for the appellant, as well as, Mr. Ghulam Ali Agha for Advocate-General for the State. Mr. Allahdino Memon has argued that the ocular evidence consisting of P. Ws. Mohan, Chetan and Matar has not been believed and relied upon by the learned trial Judge. So far as the judicial confession is concerned, the learned counsel has submitted that it is retracted and requires independent corroboration. So far as the recovery of the blood-stained hatchet, as well as, the clothes are concerned, Mr. Memon has argued that the Mashirs have not supported the prosecution version. He has further submitted that the shirt was not blood-stained and the shalwar had blood spots at the bottom (Paincha) only, whereas, report of the chemical examiner, speaks of blood on the shirt, as well. He has further argued that the delay in sending articles to the chemical examiner has not been explained by the prosecution. Mr. Ghulam Ali Agha appearing for the State has not supported the judgment of conviction and sentence.
9. By a short order dated 25-11-1980, we had allowed the appeal and had acquitted the appellant, directing that he may be set at liberty forthwith, if not required in any other case. We now proceed to give our reasons, in support of the said order.
10. It is not disputed that the deceased Shirimati Marwan died of the injuries sustained by her. The evidence of witnesses Chetan, Mohan and Matar, coupled with the medical evidence, is clear and direct on the point that she had sustained the hatchet injuries, which bad resulted in her instanta-- neous death.
11. As regards the question, whether the appellant had caused these injuries the prosecution has examined P. Ws. Chetan, Mohan, Matar and Naboo. According to Mohan (P. W. 1) who is the real brother .Of the deceased, Chetan is not related to them, though in his evidence, as well as, F. I. R.
Lodged by him, Chelan has claimed to be the uncle of the deceased. Mohan has further deposed that Matar (P. W. 6) is the uncle of the appellant, so is Chano. While- narrating the motive, Mohan has deposed that about two months prior to this incident, his sister, the deceased, has visited them and had told them that she was not living happily with the appellant. They had, therefore, called Gaman, father of the appellant, Matar and Chano and others, to settle the dispute. They had assured him (Mohan) and others that in future, the appellant shall behave properly with the deceased, who had gone with them, back to the house of the appellant. About the actual occurrence, Mohan testified that he came to know about the murder of his sister after 3 days. P. Ws.
Matar and Chano bad met him at the 'Otaq' of his Zamindar Mohindas, and told him that his sister had been murdered by the appellant and they had buried her. On the next day, he was taken by Chano and Jewan to the police station, where his statement was recorded. He was cross- examined by the learned D. P. P. But was not confronted with his previous statement, recorded under section 164, Cr. P. C. May be, because, it was, either not so recorded, or was the same, as his statement at the trial.
12. The next eye-witness is Chetan, the first informant. He has given out in his deposition, at the trial, to be the uncle of both, the deceased, as, well as, Mohan (P. W. 1). His version, on the point- of motive, is different, from what was testified by Mohan. According to him, 3-4 months before the incident of murder, the deceased bad gone to their village, to visit her father Naincy. On the request of Mohan, he (Chetan), Matar and Chano had first gone to Pithoro, where Naincy and Mohan resided, and took them both alongwith, and all the five, went to the house of Gaman, father of the appellant. According to Chetan, they told Gaman that the appellant should not torture Shirimati Marwan, as they belong to the same 'brathery', where--upon Gaman had assured them that he will ask his son to behave properly with his wife and they will have no cause to complaint in future. After this talk, they returned to their Village and Mohan and Naincy went to their Village. Continuing his statement, Chetan further deposed that on the day of occurrence, at about noon time, he was sitting in his 'Otaq' when Bhai Khan, Adam and Khamiso came and told him that Shirimati Marwan was lying murdered. Khamiso had not told him anything else. He, thus, directly reached the wardat at about 4 p.m. And found Shirimati Marwan lying dead, with hatchet injuries, and the appellant was found by him, sitting tied. He also found Matar, Chano, Gaman and Umar sitting there. Gaman told him that the appellant had committed the murder of the deceased. While continuing his statement, Chetan has testified that it was Gaman, who told him that at about 8 or 10 a.m., both the husband and wife (the appellant and the deceased) had cut the grass in their fields, where the appellant had given her hatchet blows. Chetan has further deposed on oath, that except Gaman nobody else had told him, about the incident, as to how it had taken place. He thus directly proceeded to Police Post Khahi and lodged the report (Exh. 13), which, as per his statement, was not read over to him, though it bears his thumb-mark. When the F. I. R. Was read over to him in Court, he admitted that it had been correctly recorded. He has repudiated his own F. I. R. And has disowned to be an eye-witness. It appears, he introduced a false element id his testimony, by stating that Gaman had told him about the appellant having murdered his wife. Since the F. I. R. Is not a substantive piece of-evidence and this witness was neither cross-examined, nor was confronted with any of his previous state--ments, his-evidence does not implicate the appellant.
13. The last witness is Matar (P. W. 6). In his deposition, he has given altogether a different story on the point of motive. He has testified that before the incident, Shirimati Marwan had not gone to meet her parents, and the appellant and the deceased were on cordial terms and none of them had gone to Gaman, the father of appellant, nor the deceased herself had ever complained to them about the maltreatment by the appellant. He has further given the sworn testimony that at no time, the deceased had stayed away at the house of her father, on account of being maltreated by the appellant. In short, the entire story about the motive has been contradicted by this witness.
On the point of actual occurrence this witness has deposed that he had gone to attend the marriage ceremony in Khabi, where he was informed that the deceased had been murdered, and he had reached the place of the occurrence, where he found the appellant sitting, but was not tied.
He also found there, the dead body of Snit. Marwan. According to him, his statement was not recorded by the police or the Mukhtiarkar. He was merely called and was made to sign a statement, which was already written in presence of the police. This witness was declared hostile by the learned prosecutor and was confronted with his 164, Cr. P. C. Statement. This witness is illiterate and appears to have been tampered with and has not supported the prosecution version.
The uncle, the brother and almost all the witnesses have not supported the prosecution case against the appellant. In his judgment the learned trial Judge has also observed that "according to the F. I. R., Chetan first informant, who is uncle of the deceased and Mohan (P.W. 1) who is brother of the deceased, were the eye-witnesses of the occurrence. Both of them have given a go by to the prosecution case and have stated that they had not witnessed the incident. This is what often happens in case of this nature. The parties are related to each other and long lapse of time, cools the sentiments of the witnesses and the usual and expected result is that the witnesses were tampered with and they bad not supported the prosecution case. In the present day society, in our country, no one speaks the truth, merely, for vindication of justice, and what weights with them, 'is the fact that when one life is lost, why not save the other." The leaded Judge has further observed, that "in the present case, even if the two. Witnesses Chetan and Mohan, who as per F. I. R., are the eye--witnesses, would have supported the prosecution case, they would not have been believed."
The learned Judge has further observed that "the very get up of the story in the F. I. R., shows that they are not only chance witnesses; but are set up witnesses. These two witnesses are residents of different Village than the one, where the deceased and accused resided, at the time of the incident. According to the F. I. R., only a day prior to the day of incident, these witnesses happen to come to the house of the deceased, on a visit and again it was by chance, that at the time of the incident, both these witnesses happen to pass close to the scene of offence, while they were going to the jungle to ease themselves. Such co-incidents are very rare. These facts, coupled with the fact that the F. I. R. Had been delayed by 6 hours, though the scene of offence is only 2 to 3 miles from the place of the incident, clearly indicates that they are not the eye-witnesses, but had come to know of this incident at their village and then they had come to the scene of offence and from there, the first informant, had gone and lodged the report, with a cooked up story. Both these witnesses have been declared hostile by the D. P. P. And their evidence is not of any asset to the prosecution." White discussing the evidence of Matar (P. W. 6) the learned Judge has further observed that "according to the F. I. R., he had chased the appellant, when he was running away, after committing the crime but at the trial, has not supported the case, by stating that he had heard the news of murder of Smt. Marwan at Khahi town". He has repudiated his statement of being an eye--witness. The learned Judge has also discarded the testimony of Naboo (p. W. 10), as being inadmissible in evidence. The description of the occur--rence given by the eye-witnesses is such that no reliance can be placed on the version deposed by any of them.
14. Another circumstance, which generates doubt in our mind is the motive. The prosecution witnesses have not supported the circumstance of motive, as has been discussed hereinabove. In any case, in the F. I. R. It was alleged that the deceased Smt. Marwan had told Chetan, the first infor--mant, and her other relatives, that she was being maltreated by the appellant, on the ground that she was not of good character. In his statement P. W. Chetan has made no such mention and has not supported the prosecution case on the point of motive, as well as, having witnessed the occurrence.
15. In his evidence Mohan (P. W. 1) has deposed that about 2 months prior to the occurrence, when his sister deceased Sht. Marwan bad visited them, she merely told them that she was not living happily in the house of the appellant, as he was maltreating her. He has also not supported the prosecution case, on the point of motive, as well as on the actual occurrence. Same is the position of the evidence of Matal (P. W. 6). We find, therefore, no satisfactory evidence on the point of motive, has been adduced by the prosecution. Though the eve-witnesses are closely 4elated to the deceased, they have not supported the case of the prosecution against the appellant, presumably because the parties have privately, compromised the matter, and the parents of the deceased seen to have been adequately compensated.
16. Lastly is the judicial confession made by the appellant before the learned Civil Judge and F. C.
M., Sanghar, Deedar Ahmed (P. W. 3) who had recorded the confession (Exh. 8) on 2-6-1975, whereas the appellant was arrested on 31-5-1975, which was Saturday. If the appellant was willing to make the confession, there was no difficulty in getting it recorded on Saturday, which would not have created any lurking suspicion for considering the confession as involuntary. The narration of the facts in the confession also gives rise to a reasonable suspicion that it is neither true nor voluntary, whet compared and appreciated with the other evidence recorded at the trial. In his confession, the appellant had stated that "his wife used to reside with her parents, therefore, he had suspected that she was in toe with some one". The case of the prosecution, on the contrary, is different that it was only once, that she had gone to visit her parents, and stayed away, when a settlement was reached. In the confession it is also narrated "that two or three times, she promised to go to her parents, but she did not go there, and thereafter, he (the appellant) came to know that she had gone to other persons. Therefore he got `ghairat' and decided to kill her." This narration of facts, in the confession, is not in confirmity with the other evidence on the record. It is further mentioned in the confession "that on last Saturday in the morning, he (the appellant) took the deceased with him to cut the grass, and having reached in his land, he gave her two hatchet blows and killed her. She received one injury on her forehead, while the other on her neck". This version appears to have been added after receipt of the medical report. In fact, Gaman father of the appellant bad first taken the deceased with him 1983 P Cr. L J 1693 [Karachi] Before G. M. Shah and B. G. N. Kazi, JJ KHUBAN-Appellant Versus THE STATE-Respondent Criminal Appeal No. 163 of 1978, decided on 18th January, 1981.
(a) Penal Code (XLV of 1860)- ----S. 302-Murder-Evidence-Delay of three months in forwarding blood-stained incriminating articles to Chemical Examiner-Held, fatal to prosecution case.-[Delay].
(b) Penal Code (XLV of 1860)- ----S.302-Murder-Evidence, appreciation of-Prosecution witnesses not supporting prosecution case on point of motive as well as on actual occurrence-Evidence on point of recoveries of blood- stained clothes of accused and crime hatchet not confidence inspiring-Retracted judicial confession also not appearing to be true and voluntary-Prose--cution, held, failed to prove its case against accused beyond reasonable doubt-Conviction and sentence set aside, in circumstances.
Allahdino G. Memon for Appellant.
Ghulam All Agha for A.-G. For the State.
Date of hearing : 25th November, 1980.