' Appellant Hyder was tried by Mr. Ghulam All Shaikh, Ilnd Additional Sessions Judge, Sukkur for the offence under section 302, P.P.C., who found him guilty and vide judgment, dated 24-8-1982, sentenced him to imprisonment for life and to pay a fme of Rs,5,000 or in default to suffer R.I. For one year more. Rs,2,500 out of fme, if recovered were to be paid to legal heirs of deceased Mst.
Basheeran. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. Deceased Mst. Basheeran was married to complainant Harif (Arif), brother of present appellant.
The appellant resided jointly with his brother Harif in a house situated in village Imam Bux Gopang, Taluka Mirpur Mathelo. He objected the visits of one All Sanghro to the house of his brother Harif, whereupon Harif had asked him to leave his house. On 1-11-1980 complainant Harif was sleeping with his wife deceased Mst. Basheeran on the same cot when at about morning prayer time (dawn time) he woke up on hearing the cries of his wife and saw the appellant standing there armed with a hatchet who caused hatchet blow to Mst. Bahseeran on her neck resulting into her immediate death. The cries raised by complainant Harif attracted Mir Khan, Gulzar and Arbab and on seeing them the appellant bolted away. It is the case of the prosecution that Mst. Basheeran was murdered after she was declared as KARI with All Sanghro. Harif went to Mirpur Mathelo P.S., where his F.I.R. Was registered on the same day at 9-05 a.m. Aftab Ahmed S.H.O. Took up the investigation.
He inspected the WARDAT and then desptached the dead body of Mst. Basheeran for postmortem examination. He then recorded the statements of Mir Khan, Gulzar and Arbab. On 7-11-1980 the appellant was arrested who while in custody led the police officer and mashirs to the bushes and from there produced the bloodstained hatchet which was sealed on the spot. After completing the investigation the appellant was sent up.
3. At the trial the prosecution examined Harif (P.W.1), Gulzar (P.W.2), Arbab (P.W.3), Mir Khan (P.W.4), Gul Hassan P.C. (P.W.5), Gohar All Tapedar (P.W.6), Dr. Abdul Ghafoor Dahar (P.W.7), Aftab Ahmed S.H.O. (P.W.8), Ghulam Rasool Gopang (P.W.9), and Hussain Bux (P.W.10).
4. The appellant met the charge with a denial professing innocence. He has alleged enmity with prosecution witnesses. He, however, led no defence.
5. On the assessm ent of evidence the learned Additional Sessions Judge found the appellant guilty for the murder of Mst. Basheeran wife of his brother Harif and convicted him accordingly. He has, however, awarded lesser punishment to the appellant for the following reasons:- "As a result of the above discussion I have reached the conclusion that the accused has intentionally committed the murder of Mst. Basheeraii. Now so far as the question of sentence is concerned, it appears that the accused has committed the murder of Mst. Basheeran realizing that his family honour was at stake. I have, therefore, given my anxious thought to the plea of KARO KARI.
Since the family honour of the accused was involved, I, therefore, hold that the lenient view would meet the ends of justice...."
6. The fact that Mst. Basheeran was murdered is not open to any controversy. Dr. Abdul Ghafoor Dahar (P.W.7) who had conducted post-mortem examination on the dead body of Mst. Basheeran found the following external injury on her person.
"Incised wound 15 x 2 x 10 c.m., oblique at right lower part of face and upper part of right side of neck. Posterior edge of wound was 5 c.m. below and behind the right ear lobe, anterior edge of the wound was 5 c.m. Below and left to mid chin. Inside the wound there was chip fracture of anterior part of right side of mandible carotid sheeth was divided. The wound opens deeply into the larynx just below the vocal cords by cutting through the upper part of thyroid bone."
' The injury had caused so extensive damage that whoever had caused it, had no other intention, but to kill Mst. Basheeran.
7. The case of prosecution hinges upon the following items of evidence:--
(i) Direct testimony consisting of Harif (P.W.1), husband of Mst. Basheeran and brother of appellant.
(ii) Cofroborative evidence of Gulzar (P.W.2), Arbab (P.W.3), and Mir Khan (P.W.4).
(iii) Recovery of hatchet at the instance of appellant, which on examination by Chemical Examiner was found to be stained with human blood.
(iv) Motive.
8. The time of incident as disclosed in F.I.R. Is morning prayer time. Complainant Harif (P.W.1) has tried to improve this aspect of case in his evidence by stating that it was morning time when this incident took place. Gulzar (P.W.2), Arbab (P.W.3), and Mir Khan (P.W.4) have stated that the incident took place at morning prayer time. It may be noted that the incident took place in the month of November during winter season. Dr. Abdul Ghafoor Dahar (P.W.7) who had conducted the autopsy on the dead body of Mst. Basheeran examined her stomach which contained partly digested little amount of food. The presence of semi-digested food in the stomach of deceased Mst. Basheeran, when in villages dinner is taken early, indicates that the incident took place somewhere at past mid-night time. According to Dr. Modi's Textbook of Medical Jurisprudence and Toxicology the time of death can be ascertained from the condition of stomach. At page 139 Dr. Modi states:-- "It has been ascertained by Physiologists that a mixed diet containing more of animal food and less of vegetable food leaves the stomach in four to five hours after it is completely digested, while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion."
9. There are, therefore, reasonable grounds to suspect the words of Harif (P.W.1), Gulzar (P.W.2), Arbab (P.W.3), and Mir Khan (P.W.4) when they state that the incident took place at morning prayer time, viz., at about 6-00 A.M.
10. It appears that the learned Additional Sessions Judge was over whelped by the evidence of Harif (P.W.1) real brother Of appellant, Gulzar (P.W.2), and Mir Khan (P.W.4) who are also related to him and accepted their evidence on face value without going deeper and discovering the quality or the ,weight of evidence. He failed to appraise the truth and veracity of the evidence of the above witnesses and has wrongly contented himself with the bare narration of depositions of witnesses in the body of judgment. It will not be out of place to mention here that both Gulzar and Mir Khan nursed grudge against the appellant which is evident from the following admission made by Harif (P.W.1) in his cross-examinations:-- "Hyder was accused about 6 years back in some case in which Miro, Arbab and Gulzar were witnesses. It is correct that Hyder was acquitted from the case."
11. Quite admittedly there are number of houses situated in village Imam Bux Gopang. Gohar All Tapedar (P.W.6) admits that there are 10 or 12 houses in village Imam Bux Gopang. None from those houses except the above witnesses who are members of same family were, however, examined by the prosecution. On the face of the above medical version the evidence of independent witnesses was necessary. The delay in lodging F.I.R. When the police station is hardly 11 K.M. From the WARDAT has also gone unexplained. It appears that this time was consumed in concocting a false story.
12. The learned Additional Sessions Judge has again erroneously brushed aside a significant circumstance on record that no blood was found on the clothes of complainant Harif (P.W.1) who was sleeping on the same cot with his wife deceased Mst. Basheeran when she was axed to death.
The circumstantial evidence on record belies the case of the prosecution and the alleged sequence of events culminating in the commission of the crime appears to be absurd. The evidence of Arbab (P.W.3) who according to taped resided 41 feet away from the place of occurrence cannot be discarded for the simple reason that he was declared hostile. The evidence of such a witness who is admittedly a natural witness has to be examined in its proper perspective.
The evidence of this witness appears to be more convincing when he says that he went to the WARDAT and saw the dead body of Mst. Basheeran lying on a cot. He also found complainant Harif (P.W.1) present who did not tell him about the culprit. He was confronted with his 164, Cr.P.C.
Statement (Exh.10) but he maintained that the evidence which he gave before the trial Court was correct.
13. On close examination of the evidence of all the above witnesses, I have noticed that they have freely mixed lies with truth. Complainant Harif (P.W.1) stated that the witnesses who were attracted on cries saw the appellant running away from the place of incident with hatchet in his hand. This fact is specifically denied by Arbab (P.W.3). Mir Khan (P.W.4) goes a step further by stating as follows:-- "I heard commotion from the house of complainant. On commotion I went to the house of Harif where I found Hyder armed with a hatchet and he told me that I should not go near him, otherwise he will kill me like Mst. Basheeran. Thereafter the accused ran away towards southern side."
14. There is also conflicting evidence on the point of motive. The F.I.R. Shows that the appellant had objected to the visit of All Sanghro to the house of Harif (P.W.1) who was suspected to be in toe with deceased Mst. Basheeran. Harif (P.W.1) when examined in Court took a complete somersault by stating that deceased Mst. Basheeran was killed after declaring her KARI with one Nazir. It again sounds highly improbable that instead of preventing a vicious scandal by restraining a suspected lover of his wife from entering his house, complainant Harif (P.W.1) would throw out his brother, the present appellant from his house who is not attributed any particular motive for raising false alarm and expressing such unfounded suspicion in his sister-in-law (BHAJAI).
15. After discarding the above evidence, there remains the evidence of recovery of blood-stained hatched at the instance of appellant. Ghulam Rasool Gopang (P.W.9) and Hussain Bux (P.W.10) who have acted as mashirs of recovery have, however, not supported the case of the prosecution. The evidence of Aftab Ahmed S.H.O. (P.W.8) alone is not sufficient to prove this aspect of the case. In my view, it would be wholly unsafe to depend on the testimony of a police officer alone who has a natural desire to get conviction of a -person who was sent up by him.
16. For the reasons mentioned above, I am satisfied that the prosecution has failed to prove charge against the appellant beyond any reasonable doubt. The conviction recorded against him is, therefore, set aside and he is acquitted from the charge. The appellant who is in custody be released forthwith, if not required in any other case.
17. The appeal is accordingly accepted.