1. Appellant Mst. Doosi Hurmat and her son Muhammad Alam were tried for the murder of Ghulam Shabbir. They both were convicted under section 302/ 34, P.P.C., by learned Sessions Judge Sanghar. They have been sentenced to imprisonment for life and to pay compensation of Rs.5,000 each to the heirs of the deceased or in default to suffer R.I. For 3 months more. They filed this appeal under section 410, Cr.P.C. Against the judgment, dated 28th May, 1981.
2. Briefly stated the case of prosecution is that on 2-8-1979 there was Aqiqa ceremony in the house of Ali Muhammad. The people of Brotheri came to attend the function. The male members stayed in the Otaq while female and children were in the house of Ali Muhammad. Mst. Fatima alongwith her infant son Ghulam Shabbir also came to attend Aqiqa ceremony and stayed there. At about 21-30 hours complainant Fateh Muhammad heard cries of Mat. Fatima were of his brother Maula Bux to which he alongwith Khair Muhammad, Ali Muhammad, Tabb and Muhammad Hassan rushed to the house of Muhammad Hassan. They met Mat. Dossi and her son Muhammad Alam at the door who were running out side. They entered inside the house and saw Mst. P Fatima was raising cries and her son Ghulam Shabbir was lying unconscious on the cot beside her and white foam was coming out from his mouth. Mst. Fatima told them that she was sleeping with her son Ghulam Shabbir on the cot when she were up on the cries of Ghulam Shabbir she saw accused Muhammad Alam holding hands of Ghulam Shabbir while appellant Dossi pouring some liquid of white colour from a bottle in his mouth. She got up and went to catch Mst. Dossi and Alam and told them not to kill her son. They pushed her and hurriedly rushed towards door. They saw white foam was coming out from the mouth of Ghulam Shabbir. Then they took Ghulam Shabbir and were going to Government Hospital Shahpur Chakar for treatment taut on the way he died at about 1-00 a. m. Complainant took the boy directly to police station where Fateh Muhammad lodged the report at 2-00 hours on 3-8-1979. A.S.I. Allahdad recorded the report and sent the dead body for post-mortem examination to medical officer Shahpur Chakar. He recorded statements of Khair Muhammad, Ali Muhammad, Muhammad Hassan and Talib. He then proceeded to Wardat and examined Mst. Fatima and Maula Bux. Appellant Mat. Dossi and her son Alam were arrested.
3. Appellant Mat. Dossi produced a bottle from the house which was secured and sealed. All these articles and viscera of deceased were sent to the Chemical Examiner who found insecticide belonging to phosphatic group in the viscera but no poison found on other articles. The motive is stated to be that at the time of marriage of appellant Dossi with Muhammad it was promised by Muhammad that hand of Mst. Hanifa daughter of Ismail will be given to Pir Dino uncle of Mst. Dossi.
4. After some time Ismail refused to fulfil this promise, therefore, it was decided in the Brotheri that Muhammad should pay Rs.15,000 on that he left Mst. Dossi and went away. Khair Muhammad is brother of Ismail. Infant Ghulam Shabbir was son of daughter of Khair Muhammad. Police after usual investigation sent up challan against both the accused before the Court. They pleaded not guilty. They did not examine any witnesses in their defence. During the pendency of this appeal appellant Muhammad Alam died, therefore, now appellant Mat. Dossi is before this Court.
5. Prosecution in support of the case examined P. W. 1 Fateh Muhammad Exh.6. P.W.2 Muhammad Hussain Exh.9 is Mashir. P.W.4 Dr. Alam Kumar Exh.15, conducted post-mortem examination on the body of deceased Ghulam Shabbir. He has produced post-mortem notes and Chemical Examiner's Report. P.W.5 Ali Muhammad Exh.9, P.W.6 Allahdad Exh.21 is Investigating Officer. The statement of appellant Mst. Dossi alias Hurmat is at Exh. 24.
6. P.W.1 complainant Fateh Muhammad is not eye-witness. He came on cries. He has stated that on the night of incident people of Brotheri collected in the house of Ali Muhammad for attending Aqiqa ceremony of his son. At about 9-30 p.m. He heard cries of Mat Fatima. He alongwith Ali Murad, Muhammad Hassan, Talib and Khair Muhammad went running and saw accused Alam and Mat.
7. Dossi coming out of the house of Ali Muhammad. The petromax was burning in the house of Ali Muhammad. They went inside and saw Ghulam Shabbir lying un-conscious and foam like liquid was coming out of his mouth and Mat. Fatima was raising cries. She told them that she was sleeping by the side of the boy when she were up from sleep on cries of her son she saw accused Alam was holding the arms of the boy while appellant Mat. Dossi was pouring some liquid of white colour from bottle in his mouth. They felt smell of D.D.T. Powder. They took the boy and were going to Shahpur Chakar Hospital but boy died on the way. Therefore, they took the dead body to the police station and he lodged F.I.R. Which he produced as Exh. 7.
8. P.W.7 Ali Muhammad has stated that there was Aqiqa ceremony of, his son in his house where both accused and Fatima alongwith her son had come. On the night of incident some body came at his Otaq and told him that something had happened to son of Mat. Fatima in the house of Muhammad Hassan adjoining to his house. They went there and found Ghulam Shabbir lying unconscious and foam was coming out of his mouth. Mst. Fatima told them that Mst. Dossi had poisoned Ghulam Shabbir. He has stated that they shifted Ghulam Shabbir to hospital where he was found dead. He has produced his 164 Cr. P. C. Statement Exh.19. He has admitted that he did state in his 164 Cr. P. C statement that Mat. Fatima told them that Mat. Dossi and Alam poured something in the mouth of Ghulam Shabbir and he had seen Mat. Dossi and Alam on the door of house of Muhammad Hassan.
9. P.W.2. Mst. Fatima in her evidence stated that at the time of murder, her son Ghulam Shabbir was 1 -- years old. They went to attend Aqiqa ceremony of son of Ali Muhammad. During the night she slept in the house of Muhammad Hassan which was adjacent to the house of Ali Muhammad. Her son Ghulam Shabbir was sleeping with her. She were up on his cries and saw that accused Alam was holding his hands and Mst. Dossi was pouring some liquid of white colour from a bottle in his mouth. She told them what they were doing. On which they pushed her and ran away. She has stated that Khair Muhammad. Fateh Muhammad, Ali Muhammad, Muhammad Hassan and Talib came running. She narrated the facts to them thereafter, she went to unconscious and in the morning, she learnt that her son had died. P.W.3 Muhammad Hassan is Mashir. He has stated that police shown him dead body of Ghulam Shabbir at police station, produced by Fateh Muhammad.
10. Some foam like substance having smell of D.D.T. Powder has coming from the mouth of deceased.
11. Such Mashirnama was prepared. He has also acted as Mashir of Inquest Report and produced both Mashirs Exh.10 and Exh.11. He acted as Mashir of Wardat found stains on Rilli and Pillow. Police secured articles and prepared Mashirnama. Which he produced as Exh.12. He has stated that on the same day accused were arrested. He produced Mashirnama arrest as Exh.13. He has stated that in his presence appellant Mat. Dossi produced one small bottle at the corner of the house of Muhammad Hassan where pithchers were kept. He has produced Mashirnama and stated that there was no liquid in the bottle there was smell d D.D.T. And traces of liquid. In his cross- examination stated that on the night incident Maula Bux father of deceased was present at the Otaq.
12. P. W.4 Dr. Alam Kumar has stated that on 3. He was Medical Officer. Shahpur Chakar. He conducted post-mortem of Ghulam Shabbir.
13. He has stated body of male muslim child. He started post-mortem aril finished at 9-00 a. m. The body was of yellow colour. Mouth and eyes ere close. There was marks of violence, no footh on mouth or nose. Took out right lung, portion of heart, stomach, portions of small and large intestine, portion of liver, right kidney and sent to Chemical Examiner. He has produced post-mortem notes Exh.16 and Chemical Examiner's Report Exh.17. He has stated the from, post-mortem examination he could not form any opinion about the cause of death but according to Chemical Examiner Report the cause of death was poisoning with insecticide belonging to phosphatic group detected in above viscerase. P.W.6, Allah Dad Exh.21 has stated that on 19-8-1979 he was A.S.I. Incharge police station Shahpur Chakar. At that night at 2 a.m. Fateh Muhammad came at police station with dead body of infant, Ghulam Shabbir. He prepared Mashirnama of dead-body and Inquest Report Exh.10 and Exh.11, and sent dead body for post-mortem examination. He recorded statements of Khair Muhammad, Ali Muhammad, Muhammad Hassan and Talib. He proceeded to Wardat and secured Relli and Pillow and prepared Mashirnama Exh.12, and examined Fatima and Maula Bux. He arrested accused Alam and Mat. Dossi and prepared such Mashirnama Exh.13. He has stated that appellant Mat. Dossi took them to the house of Muhammad Hassan and from corner an empty bottle having smell of insecticide. Lie secured the same and prepared such Mashirnama Exh.14, at that stage S.H.O. All Anwar came and took up further investigation and challaned the accused. On 12-8-1979 he got recorded 164 Cr.P.C. Statements of P.Ws, Khair Muhammad, Ali Murad, Muhammad Hassan, Talib, Mat. Fatima and Moula Bux. In statement under section 342 Cr.P.C. Mat. Dossi Exh.24 denied the allegations and stated that witnesses are deposing against her due to enmity. She has 'not examined any witness in her defence.
14. Mr. A. A. Dareshani appearing for the appellant contended that motive is absurd and Cource of identification it nit given in F.I.R. But subsequently witnesses have improved the case and stated that Petromex was there and on that, light Mst. Fatima saw the incident. It has been argued that Ghulam Shabbir might have taken D.D.T. As he was small boy. It is argued that Maula Bux, father of infant was not examined and Doctor's opinion is not in positive. Mr. Darshani contended that appellant is old lady aged about 80 years old and has been implicated due to enmity.
15. Mr. Imam Bux Shaikh appearing for the state submitted that prosecution has proved the case beyond doubt. He supports the conviction.
16. Mat. Fatima is the only eye witness of this incident. The case of prosecution is that on 9-30 a.m. She was sleeping with her son when incident took place. It has been admitted by complainant Fateh Muhammad that on the night of incident about 50-100 women were present in the house of Ali Muhammad, but not a single woman has been examined to support the version of Mat. Fatima. All the witnesses of the incident are close relative to the complainant and not a single independent witness has been examined. P.W. Ali Muhammad has also stated that all the women of Brotheri were sleeping with Mat. Fatima. Complainant in his evidence has stated that Aqiqa ceremony was going on when he heard cries at about 9-30 p.m. And they went there. It was month of August and during summar normally people do not sleep so early at 9-30 night and specially when Aqiqa ceremony was going on. The boy may be sleeping but presence of his mother at the relevant time is doubtful. Mat. Fatima in her evidence has stated that she saw accused on the light of Petromex which was kept on the wall. This fact has not been stated in F.I. R. Even the source of identification is not given by complainant Fateh Muhammad. Subsequently he stated so in the evidence. When prosecution wants to rely on some evidence then is to be proved. This improvement has been done at later stage. The Petromex was neither shown to Investigating Officer nor it has secured.
17. According to Chemical Examiner's Report Exh.17 poison was not detected on Rilli, Pillow and Bottle.
18. Moula Bux the father of infant was present in Otaq on the night of incident. This has been admitted by Mashir Muhammad Hassan. He did not accompany his son to hospital or police station. He has not been examined during the trial though his statement was recorded by police.
19. The motive as given in F.I.R. Is that due to some matrimonial dispute the appellant used to quarrel with complainant and Moula Bux but in evidence Fateh Muhammad, stated that due to demand of, compensation from Muhammad husband of Mat. Dossi he left his were and went away and on this Mat. Dossi and her son were annoyed. Motive is of 20 years old. At the time of Wardat Mst. Dossi was aged about 70 years. Therefore, this does not appeal. Moreover there are two theories about the motive. It is unfortunate that a small infant died due to poison but prosecution evidence is very shaky and does` not inspire confidence, therefore, accused is entitled to have benefit of doubt. For the reasons stated above, I accept the appeal and acquit the appellant. She is on bail. Her bail bonds are cancelled.