Muhammad Khan (35) resident of Dhalhar Jalal, Police Station Sahawa, District Jhelum, has been convicted by the learned sessions Judge, Jhelum, under section 302 of the Pakistan Penal Code for the murder of his wife, Mst. Maqbool Jan, and sentenced to transportation for life. His jail appeal is before me.
2. According to the prosecution, the deceased was a paternal cousin of the appellant and was married to him four years prior to the incident of murder, but they had no children. Nearly three months before the occurrence, their relations became so strained that she left to live in the house of her father, Muhammad Zaman (P. W. 9) in the neighbouring village of Nullah Piran.
3. At 8-00 a. M., on 4-9-1970, the deceased was taking manure in a bati to her father's field and had reached the corner of field No. 1850 when Muhammad Khan, appellant, emerged from a maize field with a knife and commanded her to go with him. On her refusal he stabbed her in the chest and the back of her neck, killing her at the spot. The appellant went to his house in Dhalhar Jalal situated at a short distance from the place of occurrence. The occurrence is alleged to have been seen by Muhammad Zaman (P. W. 9) father of the deceased, Lai Khan (P. W. 10) of Karam Paki and his companion Muhammad Arif (P. W. 11) of Dhalhar Jalal.
4. The incident was reported by Muhammad Zaman (P. W. 9) to Ch. Ghulam Rasul (P. W. 12) Station House Officer, Police Station Sohawa, at about 2-00 p. m., on 4-9-1970, at Khurakka Bus Stand, eight or nine miles from the place of occurrence. Reaching the spot, at about 3-30 p.m. Same day, he prepared Injury Statement Exh. P. E. Inquest Report Exh. P.F. Of the deceased and sent the dead body for post-mortem examination. He took into possession blood-stained earth from the spot, vide Memo. Exh. P. B. And made it into a sealed parcel. The appellant who was arrested the same clay, at about 5-30 p. m. From his house, produced blood-stained a knife Exh. P. 1 from his pocket.
The Sub-Inspector made it into a sealed parcel vide Memo. Exh. P. C. No -blood was found on the pocket of the shirt of the appellant.
5. Doctor Tahir Hussain (P. W. 1) who held the autopsy found five stab wounds on the person of the deceased. Two were located in the chest region, one over the left buttock, one over the left lumber region, and the fifth on the left middle finger. The left pleura was torn at the lower end. There was also a cut in the left lung. Pericardium and heart showed a cut over the left ventricle. There was one cut each in the ileum and the spleen.
Swabs obtained by the Doctor from the vagina of the deceased were sent to the Chemical Examiner whose report Exh. P. K. Shows that they were stained with semen.
6. In view of the strained relations of the spouses and the presence of semen in the vagina of the deceased at a time when she could not have cohabited with her husband, the possibility of the killing of Mst. Maqbool Jan deceased by the appellant cannot be excluded. But after taking into account the entire evidence, I have come to the conclusion that the prosecution case is not 'free from reasonable doubt. Muhammad Zaman (P. W. 9) the father of the deceased had denied having seen the occurrence although he claimed to be an eye-witness in the First Inform at on Report. He alleges to have reached the spot soon after the occurrence, he does not mention the presence of the other two eye-witnesses there. He stated that he named the appellant as the murderer in the First Information Report because he was "suspected" of the crime. The interpretation of the word 'suspected" by the Learned Sessions Judge is that the witness, presumably, meant that he was told that Mohammed Khan appellant had murdered his daughter.
This interpretation of the learned Sessions Judge is not supported by the record and cannot be accepted. Whether this witness has turned out of affection for the appellant, who is his only nephew, or whether he had not really seen the occurrence, in fact, no reliance can be placed on his testimony.
7. Lal Khan (P. W. 10) and Muhammad Arif (P. W. 11) the other two eye-witnesses of the crime, are also unreliable. They belong to different villages and are chance witnesses. Lai Khan stated at the trial that he called) Muhammad Arif through his nephew, Arjasab, but told the committing Magistrate that Muhammad Arif came to him by chance. The lattercontradicted both these versions by saying that Lai Khan had sent for him through one Gulzar and not through his nephew Arjasab. They claimed g to hay a seen the occurrence by chance on hearing an alarm when they were going to Nullah Nran. They left their path and reached the spot through a pakdandi but they differ about the details of the attack and their own statements at the trial differ from their statements before the committing Magistrate in some material particulars. There is also a difference as to the stage at which Muhammad Zaman P. W. Was seen by them. Further they differ whether the deceased was going to her father's field with a bati of manure or whether she was returning from there with an empty bait, The Investigating Officer did not find any bait of manure there. They alleged that the accused went to the village after the occurrence but Muhammad Arif had told the committing Magistrate that the appellant went and sat by the side of a pond which was visible from the spot.
8. The witnesses claim to have seen the occurrence on their way to Nullah Piran where Lal Khan was to buy a bullock from Fazal Hussain of that village. Lal Khan explained that he needed a new bullock because he had sold the old one four or five days earlier. There is no explanation why be sold his bullock to buy another of the same value. The witnesses did not go together to Fazal Hussain either on that day or any other day subsequently. He did not even buy any bullock from Fazal Hussain. On the contrary he admitted to have purchased a bullock from Aziz Alam of Langar Pakwal. The story of the purchase of a bullock also stands con--tradicted by the fact that Lal Khan did not cultivate any land for himself.
9. These witnesses could not be trusted also because they seem to be inimical to the accused or his family. Lal Khan conceded that his brother Muhammad Sadiq was sentenced for one year on a charge of causing the death of Turabaz Khan maternal uncle of the accused. Qaim Din the father of the accused gave evidence in that case. He also admitted that two months prior to the occurrence the accused had removed a kikar tree from their henna although it belonged to him.
Muhammad Arif admitted that the father of accused had attested the recovery of a rifle which was planted on him in a false dacoity case.
10. No attempt was made to capture the accused at the spot or to apprehend hi ii at any time before the arrival of the Police. The evidence of the recovery of a blood-stained knife from him is doubtful because this recovery is also deposed to by Lai Khan and Muhammad Arif. These witnesses differ as to whether the knife was open or closed when it was recovered from the appellant. It is improbable that the appellant should have kept the knife in. His pocket without even trying to wash it till the arrival of the police when he hail ample time at his disposal. The investigation is also suspicious because although the report of the Chemical Examiner about the presence of semen on the swa b was duly sent to investigating officer as deposed by C. W. L.
Ghulam Rasool Dispenser yet he did not send it with the challan (presumably to injure the interest of the accused) and even went to the extent of denying its receipt.
11. As there is no reliable evidence that the appellant murdered leis wife with or without provocation and as suspicion is not a substitute for proof, I accept his appeal, set aside his conviction and sentence, and direct that he be released forthwith if he is not wanted in any other case.