' Appellant abovenamed, being aggrieved by judgment, dated 31st July, 1983 of the learned Sessions Judge, Hyderabad, in Sessions Case No, 294 of 1980, by which appellant has been convicted under section 302, P. P.
C. And sentenced to life imprisonment and to pay fine of Rs, 5,000 to complainant or default to suffer further R.
I. For 6 months has preferred the above appeal, on the following facts and grounds :- ' Complainant Ahmed son of Tahir is a Kathiawari Memon. He used to reside at Tando Muhammad Khan and used to sell Pakoras. Deceased Mst. Zeboo was his sister, whom he had married to one Muhammad Hashim Laghari about 15/16 years. She used to reside with her husband in Brohi Mohalla, Tando Muhammad Khan, P.
W. Ali Ahmed Sandilo also used to reside in their house, as she had adopted him as her son, because she had no issue from her husband. Appellant Ismail Mangsi also used to reside in Brohi Mohalla. Mst. Zeboo had complained to her brother complainant Ahmed 2-3 times, that the appellant used to tease her and used to seduce her to illicit connections. The complainant advised appellant Ismail not to do so, on which the appellant denied the allegation. On 28th October, 1980 at about 5 p. m. Complainant Ahtned had gone to the house of deceased Mst. Zeboo to meet her. He did not find her in the house. P. W. Ali Ahmed Sandilo was there in the house, who informed the complainant, tnat Mst. Zeboo had gone to the town for some work. The complainant waited with Ali Ahmed Sandilo in the house for some time and thereafter he as well as Ali Ahmed Sandilo started towards the town. At about 5-45 p. m. Both of them reached near the house of appellant Ismail Mangsi and saw Mst. Zeboo coming from the town towards her house. When she reached near the door of the house of the appellant, appellant Ismail, who was standing in the street near the door caught hold of the arm of Mst. Zeboo and dragged her inside her house. Mst. Zeboo raised an alarm, on which complainant Ahmed, Ali Ahmed Sandilo, Yunus Memon and Fakir Muhammad ran to save her. They saw appellant Ismail giving hatchet blows on the right side of her neck and right ear. Mst. Zeboo had expired due to injuries and there was blood all over her body. They caught hold of appellant Ismail, alongwith the hatchet. Ali Ahmed Sandilo, Fakir Muhammad and Yunus Kept watch over the appellant, while complainant Ahmed went and lodged F. I. R. Which was taken down by S. H.
0. Manzoor Hussain of Muhammad Khan Police Station at 6-30 p. m. On the same day. The -S. H.- 0.
Accompanied the complainant to the scene of offence. It was in the house of appellant Ismail in Brohi Mohalla.
He found appellant Ismail under the surveillance of P. Ws. Ali Ahmed Sandilo, Fakir Muhammad and Yunus. The appellant was wearing blood-stained shirt and shalwar. He secured parcel and sealed the same. He then arrested the appellant. All Ahmed Sandilo produced an axe before him, which he claimed to have snatched from the appellant. There was blood on the blade, handle and back thereof. He secured the same in presence of mash irs, parcelled and sealed it. He then inspected the scene of offence. The dead body of Mst. Zeboo was lying in the house, near the latrine and bath room. He noted 15 incised injuries on the various parts of her body.
He found blood on the ground. He scratched, parcelled and sealed it. He then sent the dead body for post- mortem examination to the Medical Officer, and made enquiries from P. Ws. Ali Ahmed, Muhammad Hussain, Habibullah, Taj Muhammad and Hashim. On 29th October, 1980, he sent the blood-stained articles to the Chemical Analyser. On 8th November, 1980 he got 164, Cr. P. C. Statements of P. Ws. Yunus, Fakir Muhammad and Ali Ahmed recorded before a local Magistrate. On 13th November, 1980 he challaned the appellant. The report of the Chemical Analyser was received by the S. H.
0. Which is in the affirmative in respect of all the articles. A charge was framed against the appellant under section 302, P. P. C. To which he pleaded not guilty and claimed to be tried. In the statement under section 342, Cr. P. C. The appellant has taken up a defence of complete denial. He has denied to have caused injuries to Mst. Zeboo and to have murder her. He has also denied, that he was produced before the S. H.
0., when he reached the scene of offence. He has also denied, that he was wearing blood-stained shirt and shalwar at the time of his arrest, which were secured by the S. H.
0. He has also denied that P. W. Ali Ahmed had snatched the blood-stained hatchet from him and produced the same before the S. H.
0., on his arrival of the scene of offence. Regarding the presence of the dead body of Mst. Zeboo in his house, he has stated that she was got murdered in his house by P. W. Ali Ahmed Sandilo. He has denied the knowledge of the report of the Chemical Analyser, that all these articles were stained with human blood. He has also denied the motive or that he had teased Mst. Zeboo or seduced her to illicit intimacy. He has claimed enmity with Ali Ahmed Sandilo. According to him, P. W. Ali Ahmed Sandilo was his partner in the washing shop.
He had taken certain articles on rent from the deceased for their shop. Subsequently the partnership was dissolved and Ali Ahmed became inimical to the appellant and started suspecting Mst. Zeboo of illicit intimacy with Mst. Zeboo. Hence he got her murdered and falsely got the appellant implicated for that murder. He has alleged that after death of Mst. Zeboo the said articles were taken back under a receipt, which he has produced in his defence. He has examined D. Ws. Muhammad Ibrahim and Allahdino in his defence.
' The prosecution has examined the following witnesses, P. W. Abdullah (Exh. 4) is the Tapedar, who had prepared and produced the sketch of wardat. P. W. Habibullah (Exh. 6) is a Lance Naik and had carried the corpse to the Medical Officer for post-mortem examination. Dr. Ghanshamdas (Exh. 7) is the Medical Officer, who had performed post-mortem examination over the dead body. Complainant Ahmed (Exh. 9) had lodged the F. I. R. P. W. Ali Ahmed Sandilo (Exh. 11) is the eye-witness and adopted son of deceased Mst. Zeboo. P. W.
Fakir Muhammad (Exh. 14) is another eye-witness, but he has not supported the prosecution case in the Sessions Court. His 164, Cr. P. C. Statement was however brought on record, as Exh.
15. P. W. Muhammad Hussain (Exh. 17) was mashir of the arrest of the appellant, production of the hatchet, inquest report and the scene of offence. He has, however, not supported the prosecution case. P. W. Taj Muhammad (Exh. 22) is another mashir, but he too has not supported the prosecution version. P. W. Abdul Majid (Ezh. 23) is the Mukhtiarkar Magistrate, who had recorded 164, Cr. P. C. Statements of the witnesses. P.
W. S. H.
0. Manzoor Hussain (Exh. 25) had conducted investigation of the case.
' Learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named, as herein. Before mentioned, and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
' The learned Advocate in support of the above appeal submitted as under :-
(a) Presence of P. W. 4 Ahmed (Complainant) who is brother of the deceased is doubtful.
(b) P. W. 5 Ali Ahmed is not adopted son of deceased, but her jilted lover, and appellant has alleged enmity against him and as such no reliance can be placed on his statement with independent corroboration.
(c) That only independent P. W. Fakir Muhammad ; alleged eyewitness of the incident did not support the prosecution. Even P. W. 15 Muhammad Hasan and P. W. Taj Muhammad, both the mashirs of alleged arrest of the appellant and recovery of his alleged blood-stained clothes and his arrest on the spot, did not support the prosecution case.
(d) That there was no tract of blood or dragging marks at vardat and as such presence of P. W. 4 Ahmed, who talks about such dragging doubtful.
' In support of his above submissions, the learned counsel stated that prosecution has failed to establish its case beyond reasonable doubt and relied upon cases reported in PLD 1978 Kar. 710, PLD 1981 SC 12 and PLD 1960 SC 223.
' The learned Advocate appearing for the State, on the other hand submitted that he was fully supporting the impugned judgment for cogent reasons given by the learned trial Court. He further submitted that F. I. R. Was promptly lodged and S. H.
0. I.
0. Of the case has proved recoveries and arrest of the appellant. He also submitted that appellant has alleged no enmity against the complainant.
' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R and P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellant.
' Prosecution case rests on the statements of 3 P. Ws. Namely Ahmed, Ali Ahmed and Fakir Muhammad. Out of these three alleged eyewitnesses P. W. Fakir Muhammad, the only independent eye-witness to the incident did not support the prosecution at all and was declared hostile. As far as presence of P. W. 4 Ahmed, the brother of the deceased at the time of incident is concerned, I agree with the contention of the learned Advocate for the appellant, that his presence is doubtful. This P. W. In F. I. R. Has mentioned, that appellant gave about 2/3 injuries to the deceased in his presence, whereas according to post-mortem report these were 15 incised injuries on her person. In addition to this P. W. 8 Taj Muhammad alleged mashir of the arrest of appellant, who was not declared hostile, although he did not support prosecution case, that appellant was wearing blood- stained clothes, when he was arrested, has clearly stated that P. W. Ahmed had come to vardat at 9-00 p. m.
After police had started preparing mashirnama of arrest of appellant and vardat. In view of these facts no reliance can be placed on his statement without independent corroboration. Similarly P. W. 5 Ali Ahmed alleged eyewitness of the incident, who claims to be adopted son of the deceased, his statement also requires independent corroboration, as appellant ha alleged enmity with this P. W., after partnership between them was ended and on account of this P. W. Suspecting appellant on illicit terms with the deceased, who according to appellant was friend of this P. W. And not adopted mother. For such corroboration prosecution relies upon recovery of blood-stained clothes from the person of appellant and his arrest on spot by P. W. 5 Ali Ahmed and P. W. 6 Fakir Muhammad, Younus etc. P. W. Younus was not examined by prosecution, for the reasons best known to it, whereas P. W. 6 Fakir Muhammad (only independent P. W.) did not support prosecution at all and was declared hostile. In addition to this prosecution relied upon the statement of two rnashirs namely P. W. 7 Muhammad Hussain and P. W. 8 Taj Muhammad alleged mashirs of the arrest of appellant and recovery of blood-stained clothes from his person, at the time of arrest. However, P. W. Muhammad Hussain did not support prosecution at all in this respect and was declared hostile, whereas P. W. Taj Muhammad although he admitted arrest of the appellant in the street, before police reached vardat, but denied that appellant was wearing blood- stained clothes and same were recovered from, his person, in his presence. In view of this, no reliance can be placed on alleged recovery of blood-stained clothes from person of the appellant, at the time of arrest, when appellant in his statement under section 342, Cr. P. C. Has denied such recovery merely on the basis of the statement of P. W. 10 Manzoor Hussain (I.
0.) of the case as this officer neither examined husband of the deceased, Muhammad Hashim nor cited him and other brother of the deceased, who had actually identified dead body to Doctor. This P. W. Also denied existence of shops near vardat, but Exh. 4-A sketch of vardat shows extence of such shops. In view of this his statement does not inspire confidence and as such to accept recoveries of blood-stained clothes from person of appellant at the time of his arrest, or his statement alone would be unsafe, specially as P. W. 8 Taj Muhammad, the alleged mashir of such recovery denied this fact, but was not declared hostile. It may further be noted, that according to P. W. 4 Ahmed and P. W. 5 Ali Ahmed deceased on receiving hatchet injuries fell down, whereas according to Exh. 20, mashirnama regarding scene of offence, dead body of deceased was found in sitting position, supported by wall. This fact also creates doubt about the manner in which incident is described by P.
W. 4 and P. W.
5. Mashirnama also does not show trail of blood from door to place where dead body was found nor any marks of dragging. Keeping in view all these facts and appraisal of evidence by me, in my opinion prosecution has failed to establish its case against the appellant, beyond reasonable doubt, specially as evidence P. W. 4 and P.
W. 5 do not inspire confidence nor their statements are supported by any/independent corroborative evidence.
Cases cited by learned Advocate for appellant fully support his contentions raised before me.
' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by impugned judgment and acquit D him by giving him benefit of doubt and direct that he be released forthwith, if not required in any other case.