DORAB PATEL, J.-The appellant has been convicted by an Additional Sessions Judge, Hyderabad under section 302, P. P. C. For the murder of Mst. Siddika, wife of Shafat Hussain P. W. And sentenced to death. He has filed an appeal against his sentence and the learned Additional Sessions Judge has made a reference to this Court, and we shall dispose of the appeal and the reference by this judgment.
2. According to the prosecution, Shafat Hussain the complainant was employed in the railway workshop, Hyderabad and lived in the railway quarters, Hyderabad. On 19th November 1965, he had gone as usual to work in the said workshop. In his absence the appellant came to his house at about 10 a.m. And attacked his wife Mst. Siddika with a knife, stabbing her several times with the knife, and then ran away. This was in the presence of P. Ws. Abdul Hakim, Ashiq Hussain, Mst. Banu (who were all relations of Shafat Hussain) and several other persons. Shafat Hussain was sent for but by the time he reached his house, his relations had taken Mst. Siddika for treatment to the Civil Hospital. Accordingly, he left for the Civil Hospital, but on his way learnt of his wife's death. After seeing her dead body at the hospital, he lodged his F. I. R. At 3---30 p.m. At the City Police Station.
3. Meanwhile, as the hospital authorities had informed the City Police Station, P. W. Muhammad Umer, A. S. I. P. Went to the hospital and prepared inquest report and then had the body of Mst.
Siddika deceased forwarded for post--mortem examination. The post-mortem examination was carried out by Dr. Nasarullah vide his post-mortem report dated the 20th November 1965 (Exh. 42).
According to Dr. Nasrullah P. W. The deceased had the following injuries:- On external examination the following injuries were found on the dead body:
(1) Incised wound 2' x 1" on the upper part of left side of abdomen.
(2) wound 1" x -- " on the right side on the lower part of the chest.
(3) Incised wound 5" x 1" on the upper part of right thigh on front.
(4) Incised wound 1" x -- " on the right side of chest 3 inches below the arm pit.
(5) Laceration 2" x 1" on the left upper arm.
On internal examination I found the following injuries. There is fracture of sternum 2 inches below the manubrium sternum.
In the opinion of Doctor Nasrullah, the death of Mst. Siddika was due to haemorrhage and shock caused by the first two injuries, each of which was sufficient to cause death in the ordinary course of circumstance. Further, according to Doctor Nasrullah P. W. "these five injuries appear to have been caused by four stabbing blows. Injury No. 5 might have been caused in a struggle between the assailant and the deceased".
4. Meanwhile P. W. Umed Ali S. H. O. City Police Station commenced investigations. He went to the scene of the offence and prepared a mashirnama of the wardat. He also recovered a chappal, blood-stained pieces of a wooden sandal and four blood-stained bricks from a house in the railway quarter which belonged to one Pir Khan. All these recoveries were forwarded in due course to the Chemical Analyser for a report. The appellant was absconding, but on 22nd November 1965 he surrendered himself at the City Police Station and was arrested by P. W. Ghulam Hussain A. S. I.
P., and at his (i. e. Appellant's instance, the said Ghulam Hussain recovered a blood-stained shirt and a blood-stained knife which were also forwarded to the Chemical analyser for a report. The prosecution has claimed that the shirt and the chappal recovered fitted the appellant. Further all the recoveries were found by the Chemical Analyser to be stained with human blood.
5. The case of the prosecution is based on the evidence of P. Ws. Abdul Hakim, Latif and Mst. Banu who were some of the eye-witnesses of the occurrence. That evidence is supported by the medical evidence and by the evidence of the recoveries, whilst the evidence of motive is supplied by Shafat Hussain, the husband of Mst. Siddika deceased. The appellant has denied his guilt in the Magistrate's Court and the Sessions Court. He has said that Shafat Hussain P. W., the complainant was hostile to him and that he had been falsely implicated on account of this enmity. He said that Mst. Siddika was woman of loose character, that he used to visit her, that on the day of incident, while he was with her, Shafat Hussain saw him and got angry. Shafat Hussain therefore took out a kitchen knife and threatened him, but he ran away, and Shafat Hussain killed Mst. Siddika and then falsely implicated him. He denied the recovery of the blood-stained shirt and knife, and he also denied that the shirt and the chappal fitted him. He also denied that he had absconned and explained that when Shafat Hussain P. W. Attention him, he had run fox shelter in a hotel run by a Pathan near the place of occurrence; he then had gone to Sukkur. But on reading in the newspapers that Mst. Siddika had been killed and that the accused was absconding, he went to his house and learnt that his father, brother mother and sisters had been taken to the Police Station, therefore he surrendered himself to the police and protested his innocence. The learned Sessions Judge has disbelieved the statement of the appellant and convicted him, and the appeal and the reference have now come up before us.
6. We shall first examine the evidence of Shafat Hussain, the husband of Mst. Siddika deceased. He said that he was employed in the railway workshop, which was very near the railway quarters, that at the time of the occurrence he was working in the workshop, and that on the evening before the occurrence the appellant had come to see him and his wife, because he had learnt of the engagement of their daughter Mst. Suraya to one Moona. The appellant was his nephew (although in his F. I. R. He has described him as a distant relation) and the appellant objected to the engagement of Mst. Suraya to Moona and had threatened them, therefore, according to Shafat Hussain, he had come and murdered Mst. Siddika the next morning. This is the only evidence of motive for the crime supplied by the prosecution, and we are constrained to observe that we are not impressed by it. However that by itself does not exculpate the appellant from guilt.
7. Learned counsel for the appellant has submitted that the evidence of Shafat Hussain should not be believed because of his enmity with the appellant and because it was full of material discrepancies. We have examined his evidence and we find that learned counsel's contention is correct. Thus in his evidence Shafat Hussain stated that when he was at the workshop at about 11- 30 a. m. He was called by his Works Manager and advised to go home on account of a message that had been received from his house. Therefore, he went home and found his aunt Mst. Fatma sitting at the door of Pir Khan's quarter, and Mst. Fatma informed him that the appellant had murdered his wife and run away. This statement in his evidence is contrary to his statement in his F.
I. R. In which he had stated that when he returned to his house from the workshop, Mst. Fatma had called him from her house (not Pir Khan's quarter) and informed him that, as the appellant had attacked his wife with a knife, she had been removed to the Civil Hospital for treatment. Again in the Sessions Court he had said that he had gone from the Civil Hospital to the Police Station to lodge his F. I. R., but in his statement in the lower Court he- had said that the A. S. I. Had --come to record his F. I. R. Statement in the hospital, and he had also falsely denied his earlier statement in the lower Court. He had made another statement in the lower Court, which is quite contrary to his statement in the Sessions Court that he had gone from the hospital to the police station to lodge the F. I. R. Thus in the lower Court he had said "I simply ignored it (that is Mst. Siddika's murder) and went to Karkana . . . . . . . . . I did not inform anybody or made report to the police". Not only is this statement completely inconsistent with his statement in the Sessions Court, but it is a very simple statement. Finally, as to enmity which the appellant alleged Shafat Hussain had against him, it appears that the appellant had filed proceedings under section 107, Cr. P. C. Against Shafat Hussain, which had been admitted by Shafat Hussain in his examination in the lower Court.
However, when Shafat Hussain was cross-examined in the Sessions Court about these proceedings, he professed not to remember anything about them and denied his admission in the lower Court. He was confronted with his statement in the lower Court and his denia'. Was proved false. In the circum--stances discussed, we do not think Shafat Hussain was a witness of truth, and further he falsely tried to conceal his .Enmity against the appellant. This is important, because except Abdul Latif P. W., the prosecution have only examined those eye-witnesses of the occurrence who were closely related to Shafat Hussain; therefore in view of Shafat Hussain's enmity with the appellant, the evidence of his relations will require corroboration as a rule
8. In view of Shafat Hussain's enmity with the appellant, the question whether he lodged the F. I. R.
Promptly becomes relevant. According to P. W. Abdul Hakim and Ashiq Hussain, the occurrence took place between 10 and 10-30 a. m. And, although the City Police Station, where the F. I. R. Was lodged, was very near the place of occurrence, the F. I. R. Was lodged at 3-30 p. m. Shafat Hussain's explanation of this delay is as follows : he said that about 11-30 a. m. His Works Manager sent for him, told him that there was a phone from his house and advised him to return home .Immediately.
Accordingly he went home and was informed that his wife, who had been dangerously stabbed, had been removed to the hospital, there--fore he first took his children to his father's house and then reached the hospital and, on finding that his wife had died, he went to the Police Station to lodge the report. The prosecution did not examine the Works Manager, who is alleged to have received the alleged telephone message, nor did they examine anybody from the railway workshop to prove that Shafat Hussain was at the workshop till 11-30 a. m. The only evidence to show that Shafat Hussain was at the workshop till 11-30 a.m. Is Shafat Hussain's statement. In view of the discrepancies in his evidence we are not inclined to believe his evidence. The second ground given for the delay by Shafat Hussain is also not satisfactory. Shafat Hussain must have known from the information given, to him by his relations that his wife was in a critical condition. He had many relations in the railway quarters, therefore it seems very strange that he should have himself first taken his children to his father's house and then gone to the hospital. He could easily have asked his relations to look after his children or take them to his father. We are able to accept his- explanation- and we hold that there was delay in lodging the
9. We shall now examine the evidence of the eye-witnesses and we shall first consider the evidence of P. W. Abdul Latif, because he is the only eye-witness examined, who is not related to the complainant. He said that he was on leave on the day of the occurrence, that at about 10 or 10- 30 a.m. He passed the house of the complainant and saw the appellant and Mst. Siddika deceased quarrelling there. Mst. Siddika deceased called him and he went inside the quarter, and told the appellant not to fight. The appellant left the house and was going away, but Mst. Siddika came out and seeing her, the appellant immediately gave her a fist blow. She started running towards Pir Khan's quarter and the appellant started giving her knife blows. She went inside the quarter of Pir Khan and the appellant followed her there. Abdul Latif further said that he followed them and opened the door of Pir Khan's quarter a little, but the appellant threatened him and bolted the door.
He tried to scale the door of Pir Khan's quarter but "the accused opened the door and ran away".
Then "a Pathan Hotel man" caught the appellant and he did not know what happened thereafter to the appellant. Here it is relevant to observe that Abdul Latif has emphatically stated that only women and children had watched the occurrence, therefore his evidence completely contradicts the prosecution case that the occurrence was witnessed by P. Ws. Ashiq Hussain and Abdul Hakim.
Additionally, we find that Abdul Latif's evidence contains material discrepancies. Thus, in .The Sessions Court he said that on the day of the occurrence he was arranging a function for the birthday of his child whilst in the lower Court he had said that the son of his paternal Aunt was being married. By itself this discrepancy is not material, but why was the witness in his house on a working day No evidence has been led by the prosecution to show that he had taken leave from the railways where he was working. Apart from the discrepancies between his evidence and the other prosecution witnesses, which we shall presently examine, there are two very material discrepancies between the evidence given by this witness in the lower Court and his evidence in the Sessions Court. Thus, contrary to his statement in the Sessions Court that he and Mst. Bano had taken Mst. Siddika for treatment to the hospital in a rickshaw, and that she died in the hospital, in the lower Court he had said : "I found Aunt of Shafat Hussain and one Nasir with the dead body of Siddika. They had taken out the dead body from the quarter and put it in the rickshaw". How could he forget whether Mst. Siddika had died in the quarter of Pir Khan or whether she had died in the hospital ? Additionally, he falsely denied his statement in the lower Court and even added that he did not know whether Nasir, who was referred to by him in his statement in the lower Court, was present at the time of the occurrence. Again whilst in the Sessions Court he stated that the appellant "caused her Mst. Siddika deceased) knife blows", in the lower Court, he had said "1 did not see any injury on her person. I do not know how she died. It is impossible to reconcile these two statements In view of these very grave discrepancies between his evidence in the two Courts, we cannot place apply reliance on this witness.
10. We shall now examine the evidence of Mst. Banu and her son Ashiq Hussain Mst. Banu is both Shafat Hussain's maternal aunt and his mother-in-law, therefore in view of Shafat Hussain's enmity with the appellant, the evidence of both the 3e witnesses will require corroboration as a rule of prudence. Both these witnesses have given a description of the occurrence similar to that of P. W.
Abdul Latif. However, both have claimed credit for trying to intervene and save Mst. Siddika deceased, but Abdul Latif, who claimed to have witnessed the entire occurrence, has not said so, nor have these witnesses admitted that Abdul Latif had tried to intervene and save the deceased, as claimed by Abdul Latif in his evidence. In this connection Mst. Banu said that when the appellant followed Mst. Siddika into Pir Khan's quarter and shut the door, she opened the door so as to intervene but, as the appellant threatened her with his knife, she went away. She said that her son Ashiq Hussain,. Was present when all this took place, but Ashiq Hussain has not stated that Mst.
Banu had tried to intervene and save Mst. Siddika. On the other hand, Ashiq Hussain stated: "He (the appellant) was giving knife blows to Mst. Siddika. The accused and Ust. Siddika got into the quarter of Pir Khan . . . . . . I tried to intervene . . . . . . I asked Farid (the appellant) as to why he was causing blows to Mst. Siddika. Farid'threatened me with the knife". But Mst. Banu has not referred to this act of valour on the part of her son. Again, Mst. Banu has said that, after the appellant ran away, she and P. W. Abdul Latif got a rickshaw, put Mst. Siddika into it and took her to the hospital. However, Ashiq Hussain has also stated that, after the appellant ran away, he had brought a rickshaw and that he, his mother and Abdul Latif took Mst. Siddika in the motor rickshaw to the hospital. Thus the statements of mother and son are discrepant. Further, as we have observed, P. W. Abdul Latif has very clearly stated that only children and ladies had witnessed the occurrence, therefore if Abdul Latif is to be believed, then the statement of Mst. Banu thather son Ashiq Hussain was with her at the occurrence and Ashiq Hussain's entire testimony are false. In the circumstances discussed, bearing in mind the enmity of Shafat Hussain towards the appellant, we do not think that the evidence of Mst. Banu and Ashiq Hussain should be accepted unless it is corroborated by independent evidence.
11. We shall now briefly examine the evidence of P. W. Abdul Hakim. He had fully supported the prosecution case in lower Court, but in the Sessions Court he said that on the day of the occurrence he was in his quarter and on hearing cries, he rushed out, saw Mst. Siddika lying injured on the sandal in his quarter, and he saw the person who had attacked her running away; therefore he, Latif, Haji Hussain and one Pathan chased the cullirit. He further said "I did not identify that culprit". As he refused to say that the appellant was the culprit, he was declared hostile and allowed to be cross-examined and his state--ment in the lower Court was brought on the record under section 288, Cr. P. C. The learned Additional Sessions Judge has relied on Abdul Hakim's statement in the lower Court on the ground that Abdul Hakim resiled from the truth because he wanted to help the appellant who was his sister's son. But if he wanted to help the appellant, because the appellant was his nephew, there was no reason for him to give evidence against the appellant to the lower Court. Additionally, as we have observed, Abdul Hakim said in the Sessions Court that he, P. W. Abdui Latif and a Pathan had chased the assailant. Abdul Latif also said that a Pathan hotel keeper had caught the appellant. P. W. Omedali S. H. O. Also admitted that he had examined a Pathan hotel keeper, yet this Pathan hotel keeper was not examined. Similarly, P. W.
Abdul Latif had admitted in the lower Court the presence of one Nasir at the occurrence and P. W.
Omedali also admitted that he had examined one Nasir Bux. These witnesses were not examined.
Further we have held that the evidence of the eye-witnesses is unreliable. In these circumstances, the consequence of the failure of the prosecution to examine the Pathan hotel keeper and Nasir Bux is that there is no corroboratory evidence on the basis of which we could prefer Abdul Hakim's statement in the lower Court to his statement in the Sessions Court. Accordingly, it would be unsafe to place any reliance on Abdul Hakim's statement in the lower Court and the result is that the evidence of this witness does not help the prosecution. Additionally, we have to observe that P. W.
Abdul Latif had said that there was a lime kiln 10 paces from the place of occurrence and a hotel, another 10 paces from the lime kiln. As the occurrence took place in broad day--light, we find it difficult to believe that independent witnesses were not available. Yet the prosecution have not examined such independent witnesses, not even the Pathan hotel keeper and Nasir Bux, therefore this also leads to an adverse inference against their case.
12. As we have held that the eye-witnesses examined are not reliable, we shall now examine whether their evidence can be corroborated by independent evidence. The medical evidence only establishes that the deceased was killed by knife blows. Neither this evidence nor the blood- stained clothes of the deceased nor the blood-stained bricks, pieces of sandal connect the appellant with the crime. The only other evidence is of the recoveries of tile chappal, the blood- stained knife and the blood-stained shirt. Therefore we shall examine whether this evidence corroborates the ocular evidence.
13. P. Ws. Omedali and Zahoor have stated that the appellant was made to wear the chappal recovered on 22nd November 1965 at the Police Station and that it fitted him. Neither of these witnesses have explained whether the chappul was manufactured or not, and if it was manufactured, it could have fitted thousands of other persons. The appellant has denied that the chappal fitted him, but even if we assume that the chappal fitted him, this is not sufficient to connect the appellant with the crime. The prosecution had to prove not that the chappal fitted the appellant, but that it had been worn by him. This was a difficult question, which might have been determined by expert medical-opinion, but the prosecution made no attempt to lead such evidence. Accordingly we hold that the recovery of the chappal is not sufficient to corroborate the prosecution case against the appellant. We shall now examine the recovery of - the blood-stained knife and shirt. According to the report of the Chemical Analyser, both these articles were stained with human blood, and according to the prosecution, they were recovered at the instance of the appellant himself. But the recovery was made three days after the occurrence on 22nd November 1965, and the articles were found from a place "at the back side of the office of the Meterological Department with a road leading from Thandi Sarak to Katcha Qilla". As these recoveries were made from a public road three days after the occurrence, these circumstances cast some doubt on the eviden--tiary value of the recoveries. However, according to 1'. Ws. Omedali and Zahoor, the appellant was made to wear this shirt at the police station on 22nd November 1965, and it fitted him. As it could have fitted many other persons, this is a piece of evidence of very little value.
Further, as the appellant was not questioned as to whether the shirt had been tried on him, we cannot consider this evidence at all, Finally, there is another .Aspect of the recoveries which has disturbed us very much. The recoveries were made on 22nd November 1965. P. W. Omedali S. H. O.
Admitted in his cross-examination that he forwarded them to the Chemical Analyser on 9th March 1966, but did not give any explanation of the long delay in forwarding them. These articles (a shirt and a knife) were articles of daily use, and according to Zahoor P. W. The signatures of the mashirs were not taken on them. Therefore the long delay in. Forwarding these recoveries cast great doubt on their evidentiary, value. In the. Circumstances discussed, we do not think that we can place reliance on the recoveries of the blood-stained shirt and the blood-stained knife, therefore it follows that there is no independent evidence to corroborate the evidence of the eye-witness. We have examined the evidence of these eye-witnesses and, in view of the enmity of most of the prosecution witnesses against the appellant and the discrepancies in their evidence, which we have held that the eye-witnesses examined are not reliable. Accordingly, we hold that the prosecution has failed to prove beyond reasonable doubt the guilt of the appellant.
13. Accordingly, we set aside the conviction and sentence passed against the appellant by the learned Additional Sessions Judge, Hyderabad and allow the appeal of the appellant. The appellant will be released forthwith unless he is required on any other charge.