' JAMALUDDIN H. AHMAD, J.-Appellant Akram was convicted for offence under section 302, P. P. C.
And sentenced to imprisonment for life, by the Sessions Judge, Tharparkar, on 24th October, 1974.
He has assailed his conviction by filing this appeal.
2. The prosecution case, in brief, is that deceased Mst. Secede, the younger sister of the appellant, lived with him, alongwith his younger brother, Imtiaz and wife Mst. Kaneez Fatima. On or about 16th February, 1974, when the appellant had gone out of town to meet his parents, there was some quarrel between his wife and the deceased, as a result of which the latter left the house during the night between 16th and 17th February, 1974, but was detected at the Railway Station and was brought back by Imtiaz and a constable Abdul Majeed. The appellant was informed of this incident on the 17th February, 1974, and on the same day in the afternoon, while his wife and brother were out; he took the deceased into a room and throttled her to death.
' He then proceeded to the Jhudo Police Station and made a statement of what he had done, whereupon Lal Khan, the S. H. O. Acting as the complainant, registered the first information report in the case, and arrested the appellant. The appellant had a few scratch-marks on his face for which a mashirnama was prepared.
' The S. H. O. Was then taken to the house by the appellant, where he was pointed out the dead body of Mst. Saeeda by the appellant, which was lying on the floor in a room. He prepared a mashirnama and sent the dead body to the Medical Officer for post-mortem examination. He then examined Mst. Kaneez Fatima, Imtiaz, Inayat Ali, Ghulam Muhammad and Abdul Sattar. On 18th February, 1974, he sent the appellant for medical examination. He also examined Naseem, Shabbir Ahmed, Azad Khan, Sultan, Abdul Majeed, P. C. Mst. Sharifan and Muhammad Aslam ; and after completing the investigation sent up the case on the 11th March, 1974.
4. In this case there is no ocular evidence about the murder itself. The prosecution, therefore, relied upon the circumstantial evidence and for that purpose examined P. Ws. Abdul Majeed, P. C. And Mst. Kaneez Fatima who had furnished the evidence of motive. Abdul Majeed stated that he was on patrol duty at the Jhudo Railway Station when he saw a girl hurriedly hoarding a train. He suspected her movement and detained her, whereafter some persons from the Railway staff and the public also came up. In the meantime, her younger brother also arrived there. She was then taken to a house where a woman who was reported to be her brother's wife was waiting for her. He then laid this information to the Police Station and a note to this effect was made in the Station Diary. On the following day he came to know that the girl had been murdered. However, this witness neither remembered the name of that girl nor of her brother. Although he had seen the corpse at the dispensary but he had not seen the face. P. W. Kaneez Fatima, wife of the appellant, did not support the prosecution case as she denied that the deceased had ever left the house on being annoyed with her. As per her statement she had gone to visit the house of Naseem Goldsmith leaving the deceased at her house. The appellant was also not in the house as he had left for his parents' house two days before. On her return in the evening she had found a police party. The cumulative effect of the evidence of these two witnesses is therefore, that the evidence of motive intended to be relied upon by the prosecution is completely absent.
' The prosecution then examined Muhammad Safdar. Who acted as a mashir of the arrest of the appellant at Jhudo Police Station and also to the fact that the volunteered to show the dead body of the deceased and also scene of the offence to which he led the police and the mashirs. This witness has been examined in Court and he deposed to the fact of arrest of the appellant but did not say that the appellant volunteered to lead the police to a discovery of the body of the deceased. In fact according to him, the police had taken all to the house of the appellant who was also accompanied by them. The appellant was at that time under arrest. The other witness examined by the prosecution and who supported the circumstantial evidence was P. W. Lal Khan, the S. H. O., Jhudo Police Station. He had registered the F. I. R. On the basis of the statement of the appellant himself and according to him, the appellant after being arrested had led them to his house and had pointed out the corpse of his sister which was lying on the floor inside one of the rooms. The statement of the appellant incorporated in the F. I. R. Which is in the nature of confession is not admissible in evidence under the law and cannot, therefore, be considered and in view of the details of the place of incident and the fact of the murder being already within the knowledge of the S. H. O. There was in fact no discovery of these facts made by the appellant after his arrest. The evidence of S. H. O. On this point is also of no material help to the prosecution no support the case against the appellant.
5. The medical evidence shows that deceased Saeeda died an unnatural death and had the following injuries on her person :-
(1) Three abrasions on the upper part of the left chest at the root of neck each size 1/2' x 1/4."
(2) Three abrasions at the back of the left elbow joint of size 1/4 x 1/4 each.
(3) One abrasion 1/2" x it" at the back of right elbow joint.
(4) One abrasion 1/2 x 1/2 at the upper part of right thigh.
(5) One abrasion 1'x at right knee joint.
(6) One abrasion 1' x 1/2" on the left knee joint.
' In the opinion of the Medical Officer the cause of death was homicidal strangulation as a result of asphyxia and inhibition.
' He had also examined the appellant on 18th February, 1974 i,e, a day after the murder of Mst.
Saeeda a ,d he found the following injuries on his person a-
(1) One abrasion on the right side of the nose size 1/2 as 1/10".
(2) One abrasion on the dorsum of right hand size 1/2 x 1/2.
' These injuries in the opinion of the Medical Officer had been caused by some blunt weapon such as "lathi" or may be due to fall of some hard substance. These injuries were fresh in nature.
6. The prosecution relied upon the existence of the injuries on the appellant as a circumstance against him to show that the deceased had caused these injuries while being throttled, The appellant explained his injuries to have been caused due to slaps given to him by the S. H. O. Who was wearing ring. The Medical Officer in cross-examination was not excluded such a possibility.
7. The case of the appellant in his statement was that of denial. According to him he had gone to the Police Station to report that his sister Saeeda was found lying dead in the house. He was maltreated by the police and the F. I. R. Was recorded implicating him as he murdered her. He had no motive to murder his own slates and denied that she had left the house at night alone on account of, annoyance with his wife Mst. Kaniz Fatima.
8. There is no direct evidence connecting the appellant with the offence of murder. The circumstances brought by the prosecution on record to support the conviction are in the first place not proved by the evidence and in the second place they are not sufficient in law to be considered as legal proof for the offence for which the appellant was tried.
9. In the circumstances of the case this appeal is allowed and the conviction and sentence of the appellant set aside. He is on bail. His bail bond is cancelled.