' Z. A. CHANNA , J.-Appellant Gahi, who has been convicted by a learned Additional Sessions Judge, Jacobabad, of the murder of his wife Mst. Sughran, and dishonestly misappropriating her gold valis after committing the murder and sentenced for the former offence to death and also to pay a fine of Rs. 1,000 or in default to undergo R. I. For six months and for the latter offence sentenced to R. I.
For two years and to pay a fine of Rs. 200 or in default to undergo further R. I. For three months, has appealed from Jail against his convictions and sentences. The learned Additional Sessions Judge has also referred his case to this Court for the confirmation of the death sentence awarded to him.
This judgment will dispose of both the appeal and the reference.
2. The incident occurred on the night intervening between the 7th and 8th of May, 1974, in the open courtyard of the house of Kauro Shaikh the father of deceased Sughran, in village Mir Alam Khan, six miles away from Thul P. S. According to the F. I. R. Which was lodged by first informant Mirzah, paternal uncle of deceased Sughran, on 8-5-1975, at 11 a.m. At Thul Police Station, appellant Gahi, who had married some 2 years earlier Mst. Sughran, the daughter of Kauro, and had become Ghar-damad of Kauro, was present at the house of his in-laws on the night of the incident.
However, on the next morning, at prayer time, when first informant Mirzan went to call him for the purposes of ploughing, he was not found at his house and on the other hand Mirzah saw blood under his cot whereupon Mirzah went and called his Zamindar, Moujdin. They along with Mst.
Khairan, the mother of the deceased, removed the white sheet of cloth which was wraped on the cot from which the blood had oozed and they found Mst. Sughran, lying dead, with her throat cut. A 'Kati' was lying near the dead body. Mirzan and Moujdin were informed by Mst. Khairan that Gahi had slept with his wife at Sohmani time but he was not to be found now. Kauro, the father of the deceased, was also not in the house as he was said to have gone to Mian-jo-Goth.
3. The investigations in this case were conducted by A. S. I. Rahmatullah of Thul Police Station. After recording the F. I. R. He recorded the statement at the police station of P. W. Moujdin who had accompanied Mirzan to the police station. The A. S. I. Then accompanied Mirzah to the scene of offence from where he secured a blood-stained churri, blood-stained earth and the blood-stained cot and rilhi on which the deceased was lying. The A. S. I. Also recorded at the vardat the statements of Mst. Khairan as also of Kauro, who is said to have returned to his house in the morning time. On 11-5-1974, the appellant himself appeared at the Thul Police Station but nothing was recovered from his possession. The gold Valis of the deceased, which are said to have been removed along with parts of her ear, have not been recovered.
4. The autopsy on the deceased was performed by Dr. Amar Lal on 8-5-1974, between 5 p.m. And 6 p.m. He found the following external injuries on the deceased :- ' Injuries :
(1) One incised wound 6" x 3" x neck bone muscle deep on the left side neck.
(2) One incised wound 3" x 2" x muscle deep left side neck 1/2 below the injury No. 1.
(3) One incised wound 3" x x muscle deep on the left cheek towards the ear piece cut.
(4) One incised wound 14" x 1/2 x muscle and cartilage deep on the right ear lobe cut.
(5) One abrasion x 14" x 14" on the left ankle joint.
5. The doctor has opined that death of the deceased was due to shock and haemorrhage resulting from the above injuries, which had been caused with a sharp weapon between 12 to 24 hours prior to the post-mortem examination.
6. The defence of the appellant is a total denial of the prosecution allegations and of alibi. His case, in his own wards, in as follows:- "I was out and had gone to the village of my maternal uncle to attend some marriage ceremony.
When I returned from there to my house I learnt about the murder of my wife. I straight went to the Police Station.
P. W. Moujdin used to come in my house to which I had objected with the result that my mother-in- law and P. W. Moujdin were annoyed and afterwards they were not on good terms with me.
Therefore I have been implicated falsely due to the above reason. Complainant Mirzan is hari of Wadero P. W. Moujdin."
7. The case against the appellant is based upon:-
(a) the alleged ocular testimony of Mst. Khairan, who, in her evidence in the Sessions Court, has testified to having seen the appellant, at dawn time, giving hatchet blows to the deceased, cutting off her ears with a Churi and decamping w ith the ears in which there were gold Valis;
(b) the corroborative testimony of P. Ws. Mirzan and Moujdin, who have not only deposed to having been told by Mst. Khairan, immediately after the incident, that the appellant, after killing the deceased with a hatchet, had cut off the ears of the deceased and run away with the ears in which the deceased was wearing gold Valis, but have further stated that they had seen the appellant and in fact given him a chase, but he was able to make good his escape; and the alleged abscondence of the appellant between 8th and 1 1 th of May, 1974."
8. We have carefully examined the above pieces of evidence and are of the opinion that they are highly untrustworthy and cannot be relied upon. As to the evidence of Mst. Khairan, we may point out that it is at complete variance with the version given in the F. I. R. In the F. I. R. The appellant has been implicated only on suspicion and all that is alleged against him is that on the night of the incident, at sohmani time, he was at the house of Kauro, but on the next morning, when the murder of Mst. Sughran Wes discovered, he was found absent from the house. If Mst. Khairan had in fact seen the appellant killing the deceased and cutting her ears, she would undoubtedly have given this information to P. Ws. Mirzan and Moujdin and it would obviously have found place in the F. I. R.
However, all that is atributed to her in the F. I. R. Is that she told P. Ws. Mirzan and Moujdin that "Gahi son of Ahmed Shaikh had slept with his wife, Mst. Sughran, at Sohmani time on the cot and that now Gahi was not there". Mst. Khairan, who was cross-examined at some length, has, in her evidence, made a number of contradictory and unbelievable statements. She has testified that after the departure of the appellant she raised cries but none was attracted on her cries. The sketch of the scene of offence prepared by the Tapedar shows that the house of Kadir Bux Shaikh is only 15 feet away from the scene of offence and the house of Yar Mohammad is 55 feet away. If Mst. Khairan had raised cries, it is highly improbable that the neighbours, specially Kadir Bux and Yar Mohammad, would not have heard them. Kadir Bux, who was examined as a mashi , has categorically stated that they had heard no cries from the house of Kauro. Furthermore, in her 161, Cr. P. C. Statement, Mst. Khairan has neither stated that she raised cries nor she told P. Ws. Mirzan and Moujdin that the appellant was running away and they should go after him. If Mst. Khairan had witnessed the incident, she would have at once roused the neighbourhood which admittedly she did not do. Furthermore, she has made different statements as to the number of gold valis which the deceased was wearing. Whereas in her evidence in the Sessions Court she has stated that the deceased was wearing six mils, in her statement in the committal Court, she has given the number as four. She has also made varying statements as to the distance she was sleeping from the deceased. Whereas in the Sessions Court she has stated that she was sleeping only three paces away from the deceased, in the committal Court she has given the distance as 60 paces, which appears to be nearer the truth as she would not be expected to sleep near a newly married young couple. All these circumstances incline us to the view that Mst. Khairan is not a witness of truth and she has made great improvements in the prosecution case with a view to implicate the appellant.
9. The corroborative evidence of P. Ws. Mirzan and Moujdin is equally unreliable and untrustworthy.
Their story in the Sessions Court that not only had Mst. Khairan told them that the appellant had killed the deceased, cut off her ears and taken away her gold Valis, but that they had actually seen the appellant escaping from the scene of offence and had tried to chase him, is completely belied by the F. I. R., which they had practically jointly filed since P. W. Moujdin was with Mirzan when the latter lodged the F. I. R. The F. I. R. Makes no mention of any such thing. In view of the palpably incorrect statements made by these two witnesses and Mst. Sughran, we find ourselves unable to accept their testimony that on the night of the incident P. W. Kauro was not in his house or that the appellant was present in the house till dawn. The fact that P. W. Kauro was present at the scene of offence when the A. S. I. Arrived there next morning seems to suggest that he was all along present but his presence has apparently been deliberately suppressed for ulterior motive.
10. The alleged abscondence of the appellant has also not been established. Although A. S. I.
Rahmatullah has stated that he had tried to arrest the appellant but he could not be found, the A.
S. I. Has admitted that the appellant himself appeared at the P. S. On 11-5-1975, that is on the fourth day of the incident. His absence from the house of his in-laws has been explained by the appellant on the ground that he had gone to the village of his maternal uncle to attend some marriage.
Though the appellant has not examined his uncle or any one else to prove his presence at the marriage, or when it took place or whether there was in fact any marriage at his uncle's village, the very fact that the appellant himself appeared at the P. S. Militates against his having absconded. In any case, the mere absence of the appellant from the house of his in-laws, where he was staying, is wholly insufficient to establish that he committed the murder of his wife.
11. The murder of Mst. Sughran was a brutal one and must have been motivated by deep malice and some compelling reasons. However, no motive for the crime has been indicated or ever suggested by the prosecution. It appears to us that the murder was committed in the night, some time between Sohmani and morning prayer time, as stated in the F. I. R., was evidently unwitnessed, was in all probability discovered in the morning, when P. Ws. Mirzah and Moujdin went to the house of Kauro and for some reasons, which are not apparent on the record, the appellant has been involved is its commission.
12. On a careful examination of the entire evidence in the case, we find that the case against the appellant is not free from reasonable doubt, to the benefit of which he is clearly entitled. We accordingly accept his appeal and set aside his conviction and sentence. If he is not required in any other case, he should be forthwith set at liberty. The reference of the confirmation of his death sentence is rejected.