' AGHA Au HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Jacobabad for offences under section 302, read with section 34, P. P. C. And section 13-D of the Arms Act. On the first count, he was given death sentence, along with a fine of Rs. 2,500 or, in default, to undergo R. I. For two years more. On the second count, he was sentenced to R. I. For two years. There is a reference by the learned Additional Sessions Judge, as required under section 374 of the Criminal Procedure Code, and there is also an appeal at the instance of the convict. The reference and the appeal will be disposed of by this common judgment.
2. The appellant, a resident of village Rasoolabad in Taluka Garhi Khairo of Jacobabad district, was married to Ms:. Hidayat. The prosecution story, in brief, is that, on the 22nd of September 1974 at a Pahar sunrise, the appellant had fired at Abdul Karim, while he was passing the latter's shop, who succumbed to his injuries at the spot. Thereafter, he had gone to his house, and asked his brother Naukat to have done with his (the appellant's) wife, as he suspected her to be in toe with the said Abdul Karim. The two of them are said to have strangulated her to death, and made good their escape. Sawad, a cousin of Abdul Karim, was among the persons to have witnessed the harrowing sight. After some times, he had proceeded to Garhi Khairo Police Station. A. S. I. Jalal Khan, after recording the First Information Report at about 2 p. m. Proceeded to the "wardat", which was five miles away, along with Sawad, and found the dead body of Abdul Karim lying in front of the shop in a pool of blood, while the dead body of Hidayat was lying inside the house of the appellant. He secured the blood-stained earth, and prepared the "Mashirnarnas" of the "wardat". Then came the inquest reports. Later, enquiries were made from Wahid Bukhsh, Allanditto and one Amir Bakhsh.
After due investigation, the case came to be challaned against Naukat, showing the appellant as an absconder. The latter come to be arrested on 26-8-1975, and was produced in Court with a supplementary challan.
3. The appellant in his statement at the trial denied the various allegations made against him, and maintained that he had been involved in the case because of a dispute over the lease of land.
4. In regard to the deaths of Abdul Karim and Mst. Hidayat, apart from the oral testimony in the case, there is the deposition of Dr. HabiburRehman, who had held the autopsies, finding the following injuries on the persons of the deceased.
Abdul Karim
(1) A wound of entrance 1" in diameter on the line of anterior axillary fold, fore-fingers below the left nipple on the chest wall.
(2) Four wounds of entrance 1/4" in diameter on the back of the chest wall on left side one to two inches apart from each other.
(3) A wound of exit 3/4" in diameter on the pactoral region.
(4) A wound of exit 3/4" in diameter on the right side of the chest on the line of the mid axillary, two fingers below and lateral to the right nipple.
(5) A wound of entrance -V in diameter on the back of the chest wall 1" below the right scapules.
' The left 8th and 9th ribs were fractured. So was pleurea. According to Dr. Habib-ur-Rehman, death had occurred due to shock and haemorrhage, as a result of injuries by some fire-arm, such as a gun. Mst. Hidayat
(1) A ligature mark 1" in breadth encircling the back horizontally and completely situated below the throid cartilage. The brain, larynx and trachea were conjested and contained mucus. The left side of the heart was filled with dark fluid blood. According to the medical Officer, death had occurred due to asphyxia on account of strangulation. The death, according to him, would have occurred within five minutes of the strangulation.
5. The incident is alleged to have been witnessed by three persons, namely, Wahid BuKhsh, the father of Abdul Karim, Sawad and Allanditto, the last two witnesses are brothers inter se and cousins of deceased Abdul Karim. Wahid Bukhsh had died before he could be examined even in the committal proceedings against Naukat. Sawad and Allanditto were, therefore, the only two witnesses to be examined. Both of them state to have been present at their house at the time of the incident, and witnessed Abdul Karim being shot at, twice by the appellant, while he passed by the latter's shop. The witnesses have stated that they tried to intervene, but they were warned off.
After the appellant had made a short work of Abdul Karim, he had gone in the direction of his house, which was not far away, and, seeing Naukat there, had asked him to make an end of Mst.
Hidayat also because of her infidelity. Then, they had put the headwear of Mst. Hidayat round her neck and strangulated her. Sawad in his statement at the Court of Enquiry had stated that he had heard the gun reports, and, when he had gone there from the house, he had found Abdul Karim lying dead. A number of other contradictions and omissions were fully brought on the record, but in the circumstances of the case, it is not necessary to dilate on the same. It also appears from their statements that a number of persons had turned up from the village, once the tumult had been raised, but nobody, apart from them, has entered the witness-box. It also appears from the record that even the Police Officers did not choose to make any enquiry from anybody else, apart from Amir Bakhsh. According to Allanditto, even the brothers of Mst. Hidayat were not only present, but were witnesses of her murder. Allanditto is also very specific that the shots had been fired at Abdul Karim from a distance of ten paces. Howevere, according to Habibur-Rehman, there were blackening and charring marks on the skin of Abdul Karim, and he had specifically stated in cross- examination that the shots had been fired from a distance within three feet. The oral testimony, therefore, cannot be implicitly relied upon, as it is in conflict with the medical evidence.
6. According to the First Information Report, the only motive given was a possibility or suspicion of Karo-Kari. Support was lent to it in specific terms by Allanditto. However, both the witnesses also mentioned about a dispute over land with Abdul Karim. According to Sawad, the dispute between the parties was only over Batai, while, according to Allanditto, the dispute centered round the lease of land, which belonged to one Alim Khan. However, according to him, the land had been leased out by Alim Khan to the appellant. Alim Khan has not been examined, and, if there was a dispute over land, there is no explanation as to why the same did not find a place in the First Information Report lodged by Sawad. Otherwise too, the statement of the two witnesses on this score is rather discrepant, and, as would be seen earlier, has not been properly supported. True enough that these witnesses will also be related to the appellant, being cousins, yet, on the showing of Sawad, both these brothers were living with Wahid Bukhsh, the father of Abdul Karim. Their anxiety to improve upon their versions at the trial also does not show that they had any soft corner for the appellant, in spite of blood ties. In the circumstances of the case, las referred to earlier, their evidence will also not be in accord with the medica testimony, apart from the fact, that, according to their earlier version, they had turned up at the "Wardat" in the wake of the firing, and all they had seen is that Abdul Karim was lying dead on the ground. Jalal Khan, the investigating officer, has stated that the appellant was not traceable, but there was not a word beyond that, as to what attempts he had made to trace out the appellant. There are no in dications that any proceedings had taken place under sections 87 and 88 of the Criminal Procedure Code. The allegation of absconders was not relied upon by the trial Court, and very properly. There are no confirmatory circumstances forthcoming in the case. There might be an element of suspicion against the appellant, but suspicion cannot be a substitute for proof, and the benefit thereof will accrue to the appellant, not as a matter of grace; but as of right. There is not even a shred of evidence in regard to the conviction of the appellant under section 13-D of the Arms Act.
7. I am of the opinion that the case against the appellant has not been established beyond all reasonable doubt. I will, therefore, not accept the reference, set aside the conviction and sentence on both the counts and allow, the appeal. The appellant is in custody, and would be released forthwith, unless wanted in connection with some other case.
G. M. SHAH, J .-I agree.