AGHA A.I HYDER, J.---The appellant was convicted by the learned Additional Sessions Judge, Dadu, for an offence under section 302, P. P. C. And sentenced to death. He has come in appeal.
There is also a reference made by the learned Additional Sessions Judge as required under section 374 of the Code of Criminal Procedure. The appeal and the reference will be disposed of by a common judgment.
2. The complainant, Rakhial had a daughter by the name of Mst. Satbharai. The appellant who is the nephew of the complainant, wanted her to be married to him. The proposal was spurned by the parents of the girl, namely, Rakhial and his wife Mst. Darya Khatoon, since deceased. She was instead married to one Sher Muhammad, a brother of P. W. Ibrahim, some two/three months before the incident. It is alleged that the appellant was nursing a grudge on that score, and had threatened the complainant and his wife Mst. Darya Khatoon. On the 12 of April 1971, Rakhial had gone to his lands for harvesting purpose. At about 9 a.m. Mst. Darya Khatoon left the house with breakfast for her husband. She was not far away from the village, when she was attacked by the appel--lant meeting instantaneous death. The incident is alleged to have been witnessed by Shafi Muhammad and his son Ghulam Hussain. Their cries had attracted Rakhial and his partner in.
Cultivation, P. W. Ibrahim, who were 50/60 paces farther and is stated to have seen the appellant running away. Litter on, some other people collected round. Rakhial went to break the news to his Nekmard Races Muhammad Bux Jamali whey was not available at his village Bhawalpure. The complainant then went to Dadu and, after apprising him of the incident, went to the Dadu Police Station where he lodged the First Information Report which was recorded by the A. S. I. Muhammad Saleh. The A. S. I. Proceeded to the wardat where he found the dead body of Mst. Darya Khatoonth lying in a pool of blood. He prepared a mashirnama and sent the dead body for the post-mortem examina--petition. Thereafter, inquiries were made from Shafi Muhammad, Kauro, A.I Khan and Ibrahim. The same evening the appellant was arrested in the Otaq of Races Muhammad Bux Jamali. The appellant is stated to have produced a blood-stained hatchet which was secured and sealed in the presence of the mashirs. On the 14 of April, the appellant made a judicial confession before the S. D. M., Dadu. On the 16, inquiries were made from Ghulam Hussain and Haji Muhammad Bux Jamali. Later on the case was sent up in Court.
3. The appellant in his statement at the Court of Inquiry as well at the trial retracted the confession and contended that he was involved in the case because of enmity.
4. The autopsy was held by Dr. Muhammad Saleh, who found the following injuries on the person of the deceased: External Examination:-
(1) Incised wound 6" x 2" x 5--- deep on the left side of the neck extending up to the upper part of the left of front of the chest cutting bones, blood vessels, plurea up to the upper part of the left lung causing damage to trachea and carotid artery and juggller vien. The injury was fatal and appeared to have been caused by a sharp cutting weapon such as a hatchet.
(2) Lacerated wound 2" x 1" bone deep on the top of the skull. It appeared to have been caused by a hard blunt substance such as the back side of the hatchet.
Internal Examination:-
(1) Left pleureas was cut.
(2) Trachea on the left side was cut.
(3) Upper part of the left lung was also cut.
(4) Heart was empty.
(5) Stomach contained semi-solid and semi-digested substance.
(6) Clavicle on the left side was fractured.
According to the Medical Officer, the injuries were ante-mortem and had been caused by a sharp cutting weapon such as a hatchet. The death was instantaneous due to the shock and haemorrhage which was the direct result of Injury No. 1, and was sufficient in the ordinary course of nature to cause death.
5. The incident is alleged to have been witnessed by two persons, namely, Muhammad Shafi and his son Ghulam Hussain. The name of Ghulam Hussain was not mentioned at all in the F. I. R.
Lodged by the complainant Rakhial who states to have been attracted by the cries raised by them.
Rakhial was silent about him at the Court of Inquiry. Shafi Muhammad also had not mentioned him in his statement under section 164, Cr. P. C. Or for the matter of that, at the Court of Inquiry. Ghulam Hussain on his own showing, had been to the school on the day of the incident at about 8 a.m. And obtained leave for grazing his cattle at about 8-30 a.m. It is rather difficult to imagine that he should have asked for, or been granted leave after going to school and for such a trivial reason.
Not only he leaves the school but reaches the field where his father was harvesting the crop, just to be in time to witness the incident. What is worse he was examined by the police for the first time on the 16th July, that is the fifth day of the incident. His presence was disbelieved by the learned Additional Sessions Judge, and I think very properly. It is therefore not necessary to dilate on the same any further.
6. Shafi Muhammad states to have seen the appellant giving hatchet blows from a distance of about 80 paces. He had gone running in that direction thereafter. Later Rakhial, Ibrahim, Kauro and others reached there. The appellant had started running to the side of the village. He made out that his land was only 100 paces away from the wardat, but his version at the Court of Inquiry as brought on the record was that it was at a distance of half a call from the village. As it will be seen later, even that was a half-truth. The wardat, as is clearly made out by the witnesses, is very closeth th to the village. According to Ibrahim, it is adjacent, while Kauro put it at a distance of 40 paces from the house of the complainant. P. W. Gahno states that it is 10/15 paces from the village. Even according to the Tapedar, the village is only 132 feet. Shafi Muhammad does not say that he had seen the appellant giving any chase to Mst. Daraya Khatoon. Nor he doles out any details, leading to the attack. According to him, on his cries, a number of people had been attracted apart from Rakhial and Ibrahim, but he could not give their names. He also admits that there was a wheat dera near the wardat but nobody was there. Even the village Arz Muhammad is not far away from the wardat but on his own showing, no. Body had come from there. He-also states that when he had reached the wardat he had found meals lying on the ground. He had seen 'gur', 'watts' and meals tied in a piece of cloth. He was not clear if the same had been seen by the police.
7. It is alleged that Mst. Darya Khatoon was bringing breakfast to her husband Rakhial. Rakhial also states that the break fast had been shown to the police but that is denied by the A. S. I. Muhammad Shah, Rakhial and Ibrahim were about 50/60 paces away from him. Both of them admit, that their lands were at a call's distance from the wardat. There were cultivations nearby and harvesting was going on. If he was at a distance of one call which means slightly short of a mile and busy harvesting his crop, it is rather difficult to believe that he could have heard the cries, or witnessed the incident at all. He also admitted in the cross-examination that Rasoolo, the father-in-law of Haji Ramzan the brother of the com--plainant, had filed a theft case against his brother in which Haji Ramzan was a prosecution witness. It was suggested to him that he was on inimical terms with the appellant but the suggestion was denied. Be as it may, in the circumstances disclosed, his claim of being an eye-witness of the incident appears to be extremely doubtful.
8. Rakhial and Ibrahim allege to have been present in their field harvesting. Ibrahim lives in a different village. His brother was married to the daughter of Rakhial. Ibrahim has deposed that he had seen the appellant, when he was at a call's distance. The same distance has bees given by Rakhial. Can it be believed that they could be witnesses of truth? If the appellant was unhappy with the marriage of Mst. Satbharai with the brother of Ibrahim, the latter could not be too happy with him either. Both of them state, that one of the earliest arrivals was Kauro. Kauro is a cousin of Rakhial. He had reached the wardat from the village, which was so close to the wardat. He does not mention seeing the appel--lant at all. It is nobody's case that any attempt was made to chase the appellant. After all he was alone and had gone to the village side. I am clearly of the opinion that they never saw the appellant as they allege. It is also to be seen that the witnesses who appeared on behalf of the pro--secution are people who are close to Rakhial. It is true that Rakhial himself is the maternal uncle of the appellant, but the family ties do not seem to have been very harmonious.
P. W. Gahno is another witness who is the mashir of the alleged discovery of the hatchet by the appellant. He is a brother-in-law of Rakhial and the maternal uncle of the deceased. Gahno had admitted that the father of the appellant had enticed away his wife's sister Mst. Sehat, but he was not a witness in that case. Ibrahim and Rakhiai were possibly put on the wrong track by Shafi Muhammad. None of these inspires any confidence because they insist on the presence of Ghulam Hussain at the time of the incident and the circumstances clearly make out that he could simply not be there, The persons more likely to have witnessed the incident would be the people from the village Kauro Kambrani, or the village Arz Muhammad who have not been examined at all. The evidence of Rais Muhammad Bux Jamali is only of a derivative nature, and stands off with those of the main witnesses. I am therefore of the opinion that it is not safe to put any reliance on their versions.
9. Then there is the judicial confession which has been retracted by the appellant at the earliest opportunity. It is to the effect that the appel--lant bad made a short work of Mst. Darya Khatoon because he had seen her in the embraces of P. W. Ibrahim. The confession was recorded by Mr. A.
D. Ansari, the S. D. M., Dadu. He has stated that he had told to appellant that he would not be remanded to the police custody even if he did not choose to make the confession. The question is not to be found in the memorandum of confession. Mr. Ansari, however, had conceded in the cross-examination that the confession form showed that the appellant was remanded to the police custody but that was due to inadvertence. Be as it may, the confession was recorded on the 3rd day of the arrest of the appellant. There are a number of authorities to the effect that the delay` of over 24 hours would normally be fatal to the acceptance of a judicial confession. In the circumstances, it must be ruled out of consideration.
10. Then there is the evidence of the discovery of the hatchet by the appellant which has been found by the Chemical Examiner to be stained with human blood. On the showing of the A. S. I.
Himself, the hatchet was produced by the appellant before his arrest, which does not meet the requirements of section 27 of the Evidence Act. Further, the appellant was produced at the otaq of Rais Muhammad Bux Jamali and the mashir Gahno has clearly stated that there was no hatchet with the appellant when he was brought to the otaq. He further added that he could not say as to from where it came. He was not cross-examined by the learned Public Prosecutor and the other mashir was not examined. I am therefore clearly of the opinion that this piece of evidence is of no consequence at all.
11. According to the complainant, the murder had been committed because the, appellant could not marry her daughter. On his own showing, the marriage had taken place two/three months earlier. There is nothing to show that there was any unpleasantness at the time of the marriage, or that any complaint had been made against the appellant to the Nekmard or with the police. It is also to be seen that the appellant was living in the same enclosure with the complainant. There is no clue as to what actually happened on the day of the incident in special, for the murder in broad daylight and on the very outskirt of the village. Anyway, motive is a double-edged weapon, and may be the appellant came to be named as a murderer on mere suspicion. Motive by itself will however be neither here nor there.
12. I am, therefore, clearly of the opinion that the case against the appellant has not been proved beyond reasonable doubt. He will therefore be entitled to the benefit thereof.
13. In the result, his conviction and sentence are set aside, and the reference made by the learned Additional Sessions Judge, is not accepted. The appeal is allowed and he will be released forthwith unless wanted in connection with some other case.
I. MAHMOOD, J.-I agree.