1. ' Appellant abovenamed, being aggrieved by judgment, dated 17th September, 1981 of the learned Sessions Judge, Hyderabad, in Sessions Case No,50 of 1981 by which appellant "has' been convicted under section 302, P.P.C. And sentenced to suffer Life Imprisonment and also to pay fine of Rs,10,000 or in default to suffer further R. I. For three months, has preferred the above appeal on the following facts and grounds:- ' The report of the incident was made at Bulri Police Station by deceased relation Haji Ilyas S/o Noor Muhammad Mirbahar, on 14th February, 1981, at about 7-15 p.m. It was as under:-- "It is reported that I am employed at Kulab Farm. Our village is situated within the limits of Kulab Farm. There are 15-16 houses. Appellant Yousuf S/o Yakub Mirbahar is my relation. His wife Mst.
2. Phapi deceased is my sister-in-law (wife's sister). Today evening, at about 5 o'clock, I was at my house, when there was a voice of Hakal by Yousuf. I went towards his house. I saw that Yousuf was giving blows, with the sharp side of a Chhuri to his wife Mst. Phapi, on her neck and abdomen, after having laid her on the ground under the shed of his house. I challenged him as to why he was murdering her. In the meanwhile, Ismail s/o Allah Bachayo and Hussain s/o Noor Muhammad Mirbahar reached there running. They too gave him "hakal". Yousuf said that he had seen his wife Mst. Phapi having illicit intercourse with his brother Juman. We saw that Yousuf's younger brother Juman was running away from Yousuf's house towards sugarcane fields on northern side. We saw that Mst. Phapi had sharp side Chhuri injuries on her neck and abdomen and had died. Yousuf sat down on the ground, alongwith the Chhuri, by the side of her corpse. He said that he would not go anywhere and that we should bring police. I went to my Zamindar Col. Salamat Ali Shah and apprised him of the entire incident. He accompanied me to the Wardat and he saw the corpse and made enquiries from the appellant, who narrated the same incident to him, Col. Salamat Ali Shah asked me to lodge report with police. I have reached by means of a motorcycle to make report, that appellant Yousuf has murdered his wife Mst. Phapi on provocation on seeing her in illicit state with Juman and has given her blows with the Chhuri. I lodge report, which has been read over to me and I confirm its contents."
3. ' The aforesaid report was recorded by S.H.O. Bulri, Sabir Hussain Rajput. He then proceeded to the Wardat and inspected it in presence of Usman and Allahdino Mashirs. According to him, the corpse of the deceased Mst. Phapi was found lying on the ground under a shed in front of room of the house of the appellant and the appellant was sitting there and a blood-stained Chhuri was lying by his side and he was wearing bloodstained shirt and Shalwar and there were blood stains also on his arms hands, legs and feet. Blood was observed by him on the ground also. He secured all the blood-stained articles under a Mashirnama. He prepared inquest report of the corpse. He despatched it to the Medical Officer, Tando Muhammad Khan, through Lance Naik Muhammad Rahim, on the next day morning, for its post-mortem examination, which was conducted by the Medical Officer, Dr. Ghanshamdas. He recorded statements of witnesses Ismail, Hussain, Col. Salamat Ali Shah and Arif. He got 164, Cr.P.C. Statements of P.Ws. Ismail and Hussain recorded by the Mukhtiarkar and F.C.M. Tando Muhammad Khan, on 16-2-1981. He challaned the appellant on 27-2-1981 and forwarded the blood-stained articles to the Chemical Examiner.
4. ' The appellant had been charged with an offence punishable under section 302, P.P.C. He had not pleaded guilty. In his statement under section 342, P.P.C. He had made denial of having murdered his wife Mst. Phapi deceased. He had also denied that he was arrested at the Wardat and that he had any blood stains on his person. He had also denied that the blood stained clothes and Chhuri were recovered from him. He had alleged that he was working in the fields at Kulab Farm, when he was taken into custody by Bulri Police, at about 5 or 6 p.m. He had further alleged that his implication in the case was maneouvred by complainant Ilyas due to some difference on domestic affairs.
5. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
6. ' The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That P.W. 2 Ismail and P.W.3 Hussain, the alleged eye-witnesses of the incident in question were declared hostile by the prosecution. Even P.W.1 Haji Ilyas the complainant has also not fully supported the prosecution case but was not declared hostile by the prosecution. In addition to this P.W.8 Muhammad Usman and P.W.9 Allah Dad the Mashir of the alleged recoveries have also not supported the prosecution case at all and consequently there is no evidence on record to support the conviction but in spite of this the learned trial Court on mere conjuctures has convicted the appellant above-named which was not warranted.
(b) That the F.I.R. Clearly discloses motive of the alleged crime, but the P.Ws. 1, 2 and 3 in their statements before the learned trial Court have not supported the prosecution on this account.
(c) That in spite of the above position of the prosecution evidence the learned trial Court on mere conjunctures has convicted the appellant abovenamed merely on the basis, that the dead body was found in his house during the day time and the appellant is alleged to have been present at Wardat was arrested on the same day with bloodstained clothes and the alleged Chhuri used in the crime was recovered in his house and as such the impugned judgment cannot legally be sustained.
7. ' The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as there was no legal evidence on record to support the conviction of the appellant, on the basis of the reasons given by the learned trial Court.
8. ' The learned Advocate for the State further submitted, that appellant had remained in custody right from 14-2-1980 up'to 20th August, 1983 and as such even if it is believed, that appellant did commit murder of his wife, it was due to grave and sudden provocation received by him and consequently the offence if any committed by the appellant would fall under section 304 (II), P.P.C.
9. And, therefore, the sentences awarded to the appellant are harsh and cannot be sustained.
10. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned judgment.
11. ' Prosecution case rested on the statements of P.W.1 Haji Ilyas P.W.2 Ismail and P.W.3 Hussain, out of which P.W.2 and P.W.3 are alleged to be eye-witnesses. The alleged eye-witnesses did not support the prosecution case at all and were declared hostile by the prosecution. I also find that P.W.1 Haji Ilyas, the complainant has also not fully supported the prosecution case, but he was not declared hostile. In addition to this P.W.8 Muhammad Ismail and P.W.7 Allahdad the alleged Mashirs of the recoveries have also not supported the prosecution case and were declared hostile by the prosecution. In spite of this, the learned trial Court simply on the basis that dead body of the deceased was recovered from the house of the appellant during day time and the alleged Chhuri used in the crime was recovered from his house, convicted him on the basis of corroboration of recovery of blood-stained clothes from the person of the appellant. I have already stated, that P.W.8 and P.W.9 the alleged Mashirs of the recovery of the blood-stained clothes of the appellant did not support the prosecution at all and were declared hostile and as such no reliance can be placed on alleged recovery of blood-stained clothes from the person of the appellant for purposes of corroboration of prosecution case. In view of this I find no evidence at all brought by prosecution on record to prove its case against the appellant beyond reasonable doubt and consequently I see no reason to agree with the conclusions and findings of the learned trial Court.
12. ' Therefore, I allow the above appeal and set aside conviction of the appellant as well as sentences awarded to him and acquit him by giving him behefit of doubt and direct that the appellant may be released forthwith, if he is not required in any other case.