NASIM HASSAN SHAH, J.---This is an appeal filed by Hazoor Bakbsh son of Yar Muhammad, aged 25 years, against the order of the learned Sessions Judge, Muzaffargarh, dated 7-2-1972, convicting him under section 302, P. P. C., and sentencing him to death for the murder of Master Hazoor Bakhsh, on 6th March 1970, in the area of Mauza Makwal, Tehsil Alipur. The case has also been referred to us by the learned Sessions Judge under section 374, Cr. P. C., for the confirmation of the sentence of death. This order will dispose of both the appeal and the said reference.
2. The prosecution story, as set out in the F.I.R. And sought to be proved before the trial Court is that Master Hazoor Bakhsh was a school teacher at Rahim Yar Khan. He had some relatives in 1.4auza Makwal, where the incident occurred. His sister Mst. Haleeman was married to Ghulam Qadir (P W.
2). The said Mst. Haleeman had not returned back to her husband's house after she had gone to visit her family in Rahimyar Khan. Ghulam Qadir P. W. Was anxious to obtain the return of Mst.
Haleeman, through Master Hazoor Bakhsh. A brother of the afore--said Ghulam Qadir P. W. Was Ghulam Nabi, who was married to Mst. Noor Mai. The said Ghulam Nabi used to work at Multan and, therefore, remained away from his house for considerable spells. Mst. Noor Mai, wife of the aforementioned Ghulam Nabi, had allegedly developed illicit relations with Hazoor Bakhsh appellant, who also lived in Mayza Makwal. A day before the occurrence, on 5th March 1970, the deceased Master Hazoor Bakhsh came from Rahimyar Khan to Makwal and although he had his evening meal in the house of his brother-in-law, Ghulam Qadir, he stayed in the house of Mst. Noor Mai (P. W. 7). The appellant suspecting that the deceased was having illicit relations with Mst. Noor Mai P. W., at about asarwela time on 6th March 1970, went into the but of Mst. Noor Mai armed with a hatchet where the deceased was lying on a cot and shouting a lalkara that he would teach a lesson to the person who was having inter--course with their women-folk, inflicted a number of hatchet blows to the deceased. Muhammad Baksh P. W. 11 who had come to Mauza Makwal looking for Ghulam Qadir P. W. Was waiting for him at the residence of his brother, Ghulam Nabi as he had been told that Ghulam Qadir would be coming there shortly, saw the occurrence along with one Ghafoor. Both of them raised alarm when the appellant started inflicting injuries on the person of the deceased, but could not come near him on account of the threats given to them by the appellant. P. W. 12 Allah Wasaya, however, came out of his house, which was nearby, on hearing the alarm and saw the appellant coming out of the house of Mst. Noor Mai P. W. 7, and going towards the east.
3. The report of the incident was lodged by Muhammad Bakhsh P. W. 11 allegedly at P.
8. Shahr Sultan, District Muzaffargarh, situate some six miles from the place of occurrence, at 12-30 a.m., on 7th March 1970, with the Sub-Inspector Liaqat Hayat (P. W. 13). The latter pro--ceeded to the scene of the occurrence on the morning of 7th March 1970 and commenced with the usual investigation.
The appellant was arrested on the following day and he allegedly produced blood-stained hatchet Exh. P. 9 and from his person the blood-stained kurta (Exh. P. 10), which he was wearing, was got removed and taken into possession.
4. Meanwhile, the post-mortem examination on the dead body of the deceased was carried out at 1 p.m. On 7-3-70 by Doctor Syed Muhammad Ramzan Shah, who found, inter alia, the following injuries on his person:
(1) A cut wound over front of the face measuring 7" x 1'. The wound cutting the skin, the forehead bone, the root of the nose, the lower right eyelid and the left eye-ball.
(2) A cut wound 8" x 6' cutting the skin, the muscles, the head of the humerus, the humeral end of the clavicle, the big vessels viz., the axillary veins, arteries, the nervous plexus, the underlying muscles and the skin.
The doctor found that the stomach was empty and contained only one ounce of fluid in it. The urinary bladder was empty. The scretions were oozing out from the tip of penis.
5. To establish its case the prosecution relied upon the ocular evidence of the incident given by Muhammad Bakhsh P. W. 11, the circumstance of his having been seen running away with a hatchet in his hand by Allah Wasaya P. W. 12, the evidence of the motive as well as upon the evidence of the recovery of blood-stained hatchet (Exh. P. 9) and blood-stained kurta (Exh. P.10).
6. The appellant however, denied the allegations against him and pro--fessed innocence. He attributed the case against him to enmity and elaborated this statement by saying that Ghulam Qadir (P. W. 8) was deposing against him because his sakutar (sic), Mst. Sarwar Mai, was abducted by his brother Muhammad Shafi, while Mst. Noor Mai (P. W. 7) was deposing against him because of her relationship with the deceased, that Muhammad Bakhsh (P. W. 11) was annoyed with him because his maternal aunt was abducted by him and by his maternal uncle Ghulab, and that Allah Wasaya (P. W. 12) had deposed against him due to enmity on account of a dispute regarding consolidation of land.
7. At the trial, except Allah Wasaya (P. W. 12), none of the witnesses fully supported the prosecution case. Muhammad Bakhsh P. W. 11, the only eye-witness in this case, in his examination-in-chief, supported the prosecution story so far as the main incident regarding the murder of Master Hazoor Bakhsh was concerned, but denied having lodged the F. I. R. At the police station and insisted that the same was recorded at the spot on the day following the occurrence. He also did not support the allegation of motive, which was mentioned by him in the F. I. R. He was, accordingly, declared hostile and was cross-examined by the Public Prosecutor. But during the course of the aforesaid cross-examination he stuck to his position that he had not gone to the police station to lodge the report, while in the course of the cross-examination conducted by the learned defence counsel, he went an to concede that he was not even present at the time of the occurrence and that he was deposing falsely due to his enmity with the appellant, for which reason he had become an informant against him. However, in reply to a Court question, he stated that he was present at the time of the occurrence and that his subsequent statement made during the cross-examination that he was not present at the time of the occurrence was false. However, the statement made by Muhammad Bakhsh P. W. 11, before the committing Court was not transferred to the Sessions file under section 288, Cr. P. C. And, consequently, the assessment about the veracity of this witness has, perforce, to be made on the basis of his entire statement made before the learned Sessions Judge. The same position obtains so far as the statement of Mst. Noor Mai P. W. 7 was concerned.
This witness who was produced to prove the motive, however, before the learned trial Court stated that the appellant used to frequent their village before the occurrence, but added that he did not try to have any relations with her and that she could not give any reason for the murder. She was, accordingly, declared hostile and cross-examined by the Public Prosecutor and confronted with her statement made by her before the C. M., where she had stated that the appellant wanted her to stop having illicit relations with the deceased and to develop relations with him, but that she had refused to do so, and it was on account of this motive that the appellant had killed the deceased in her house. But in answer to a question put to her by the learned defence counsel, she stated that she had made the statement before the committing Court due to the fear of the police. So far as the evidence of Ghulam Qadir P. W. 8 is concerned, his statement had no bearing on the main occurrence, but was intended to indicate that the deceased had stayed on in his village Makwal, while he was making arrangements to collect funds, as he wanted to accompany him to Rahimyar Khan and secure the restoration of his wife, through his good offices. In cross-examination he admitted that in the beginning the police had suspected him of being involved in the crime, but had then let him off, after keeping him with them for two or three days. He also practically conceded that Shafi, brother of the appellant, had taken Mst. Sarwar Mai, daughter of his wife from her previous husband and had married her. Thus his evidence, besides being insignificant, cannot be taken as disinterested.
8. The only witness who had fully supported the prosecution case is, Allah Wasaya P. W.
12. He is, however, not an eye-witness of the occurrence, but had allegedly seen the appellant running away from the house of Mst. Noor Kai P. W. With a hatchet in his hand. He also deposed about the motive of the appellant by stating that the appellant. Suspected the deceased of having illicit relations with Mst. Noor Mai P: W, because the deceased used to come and stay in her house. But his statement too, does not carry the case of the prosecution very far because he has stated that the deceased had come to village Makwal, after 8/10 years. AS the age of Mst. Noor Mai P. W. Is only 22 years, the circumstance that the deceased bad come to the village after 8/10 years militates against his earlier assertion that the appellant suspected the deceased of having illicit relations with Mst. Noor Mai. This witness also admitted that there had been some litigation between him and the appellant with regard to con. Solidation proceedings, but went on to add that this case had been decided long before the occurrence. However, the existence of litigation between the parties is not denied and, therefore, there is no doubt that bad blood exists between the two.
9. The evidence of recoveries is equally shaky. According to Shah Muhammad P. W. 5, the recoveries were made on the day following the arrest of the appellant, whereas according to Ata Muhammad P. W. 6 the recoveries were made on the very day on which the appellant was arrested. In view of this conflict with regard to the date of the recoveries, this piece of evidence cannot be relied upon.
10. The assertion of Muhammad Bakhsh P. W. 11 that the F. I. R wail recorded at the spot, on the day following the occurrence seems to be correct. Although the F. I. R. Is alleged to have been recorded 12-30 a.m., it is admitted by the Investigating Officer that he reached the scene of the occurrence at about 7 in the morning. The distance between the police station and the place of occurrence being only six miles, it seems doubtful that the F. I. R. Was, indeed, lodged at 12-30 a.m., at the Police Station and the version of Muhammad Bakhsh P. W. 11 that it was recorded when the police came at the spot seems nearer the truth. We also observe that the Medical Officer found on post-mortem examination that scretions were oozing out from the tip of penis. It is possible therefore, that the deceased had an intercourse shortly before he was done to death and that the actual version of the occurrence has not been presented in Court.
11. Be that as it may, considering the nature of the evidence produces on record, it is impossible to hold with certitude that the appellant was, in fact, the person who caused the death of the deceased. We, therefore, give him the benefit of doubt and acquit him. His appeal is accepted and the sentence of death passed against him is not confirmed. The appellant shah be set at liberty forthwith, if not required in any other case.