MUHAMMAD HALEEM, J.--Appellant Allahdad stands convicted under section 302, P. P. C: for the murder of his wife, Mst. Marvi, and sentenced to transportation for life by the learned Sessions Judge, Jacobabad, vide judgment dated 28th September 1970. Two other persons, namely Sawan and Kadirbux were also tried along with him but they were acquitted by the same judgment. The appellant has impugned his conviction.
2. On the conclusion of the arguments on 7th December, 1972, we had by an oral order allowed the appeal and acquitted the appellant and ordered his release forthwith. We now propose to give our reasons for the above conclusion. According to the prosecution case, the deceased had gone to visit her parents, who lived in a solitary house on the other side of the lake. At noon on 5th September 1969, she was returning to her husband's house along with her mother, Mst. Soomri and her brother, Arab, aged 12 years, and while they were at a place 3 or 4 furlongs away from Gehalpur village the appellant along with the acquitted accused, armed with hatchets, suddenly emerged from the jungle and after proclaiming that the deceased was a `Kari' with Muhammad son of Sommar, she was forcibly dragged by the appellant and all of them thereupon inflicted hatchet blows on her, as a result of which she died at the spot. They then took her away lifting her bodily while Mst. Soomri and Arab returned to their house and informed Paroo. Father of the deceased, who lodged the F.
1. R. At Police Station Kashmore the same evening at 8-05 hours. The place of incident was indicated to be near the protection Bund in Deh Khalpur.
3. Muhammad Akram A. S. I. After recording the report proceeded to Outpost Gehalpur and on the next morning inspected the wardat at the pointation of Mst. Soomri. It was situated in the jungle where he observed blood on sand dunes and small sticks which he secured in the presence of Mashir, Bado, vide Mashirnama, Exh.
20. He next examined Mst. Soomri and Arab and in the evening arrested the appellant. Sawan was arrested earlier and he produced a blood-stained hatchet which was seized, and on examination it was reported to be stained with human blood. Kadirbux absconded and later surrendered himself before the Civil Judge and First Class Magistrate, Kandhkot. The appellant volunteered to confess and his confession was recorded by Mr. Allahdino, Mukhtiar kar and First Class Magistrate, Kandhkot, on 8th September 1969. The dead body was, however, not discovered.
4. The appellant denied his involvement in the crime. He also stated. That Mst. Marvi was not married to him. He resiled from the confession for the reason that his women-folk were insulted and disgraced in his presence and it was, therefore, that he confessed. He alleged enmity against Khair Muhammad Khan who is closely related to Paroo. The same enmity, he k pleaded, against Phuloo and Malho who are relatives of the complainant. He filed copies of the complaint, Exh. 28, F.'I.
R., Exh. 29, and judgment, Exh. 30, in support of this plea.
5. The trial Court disbelieved Paroo, Mst. Soomri and Arab and rested conviction of the appellant on his confession. While scrutinising the ocular testimony in the context of the judicial confession it held: --- "There is so much conflict between the judicial confession and the prosecution evidence that they do not supplement each other, and if one is to be believed, the other is to be ruled out of consideration."
It then proceeded to examine the worthiness of the ocular testimony and held that the version given in the F. I. R. Is not consistent with the ocular testimony of Mst. Soomri and Arab. According to it, not only the version in Court varied with regard to the weapons with which the assailants were armed, but a further feature was introduced by the witnesses namely, that Mst. Marvi took their permission to ease herself in the jungle and after she left, they heard cries and when they went in that direction they saw the appellant and his companions taking away Mst. Marvi "after having killed her with hatchets". While assessing the evidence of Mst. Soomri it held that she not only avoided mentioning that the appellant was armed with a hatchet but also of not having seen the hatchet blows being caused to the deceased; and what is of more significance is that she stated that she saw the assailants from behind. In the view of the trial Court the evidence of Arab is also on the same footing and both of them- have changed their version "to shield the accused persons". While dealing with the inconsistency between the version given in the F. L 'R. And that deposed to in Court, the trial Court held :- "It is, therefore, quite obvious that the evidence given by these three witnesses who are supposed to be star witnesses of the prosecution certainly does not inspire confidence as they are highly interested witnesses and they have also altered their statements and have attempted to suppress material facts from the Court. Moreover, there is no corroborative evidence to supplement their already weak evidence."
6. We have scrutinized the evidence on record in the light of the above conclusion and we have no reason to differ from it. We have further observed that the place of incident is also not certain. The mashir has stated that the wardat was in the jungle 'but he saw no blood there. Examining the Mashirnama, Exh. 20, we find that blood is mentioned on the track leading from Gehatpur to `Bund Kashmore'. Muhammad Akram A. S. I. Has stated that the wardat was in the jungle and that there was blood on sand dunes and small sticks. No dragging marks were observed there and it is, therefore, not possible to say as to where the deceased was killed if at all, and how the body was carried away. Another feature is that both the witnesses have stated that they had walked across the lake while Mst. Soomri has further testified that the water was waist deep. In the circumstances, their clothes would get soiled and muddy, but no one has deposed to it. This again belies their version as to having accompanied the deceased. It is also in the evidence of Paroo that he had met Khair Muhammad Khan and Ismail Khan at Gebalpur village before lodging the F. I. R, This fact, he has not mentioned in the F.. I. R. There is an outpost at Gebalpur village. It is also suspicious why he failed to lodge the report at the outpost. Paroo has admitted enmity of the appellant with K. Hair Muhammad, Phuloo and Malho. In the context of the earlier consultation his false implication cannot be ruled out.
7. The trial Court has solely relied on the retracted judicial confession. Having rejected the ocular testimony there is no corroboration of it in an manner. The appellant is a Baloch, who is highly sensitive where the infidelity of his wife is involved; he would rather kill her then and then if he sees her sitting naked with her paramour than to forego the act and subsequently plan a murder. To us what he has stated in the confession appears to be an innovation, which is far from truth. Besides he ha omitted to mention Sawan, his father, who had produced a blood-stained hatchet, but has been acquitted, which again adversely reflects on the credibility of the confession. The trial Court accordingly erred in relying on it for convicting the appellant.
8. Having held doubt as to the presence of Mst. Soomri and Arab, it is not certain whether the deceased has at all been killed. Even if there was blood in the jungle, it cannot be connected with that of the deceased. 1 In the result, for the foregoing reasons, the prosecution has failed to r establish its case beyond reasonable doubt against the appellant. While 1 giving to him the benefit of doubt we acquit him and direct that he shall be set at liberty forthwith unless required in some other case. The appeal is accepted.
S. A. H.