1969 P Cr (PLP)

(1) An incised wound, measuring 7' x 2" x meninges deep, brain, 2" x 1/2" x 1" found cut beneath it. The injury was semilunar shaped on the right temporal region to mid‑parietal region cutting the right frontal bone. (2) An incised wound, 4" x 3" x 2", at the lower end of the neck anteriorly up to middle of neck left laterally, cutting tracheae, oesophagus common carotid artery and left sternomystoid muscle. (3) Two linear incisions each, 1" x linear x linear x 1/10", 3/4" below and parallel to injury No. 2. (4) An incised wound 4 x 1 " x 3", on the thorasic region, cutting 4th, 5th and 6th left ribs and 2 " x " x 1", left lung. (5) An incised wound 3" x 1 " x 1/3", cutting the under neath structures on the right forearm on its lower half, anteriorly. (6) An incised wound 2 " x 1" x 1/3", on the right knee, laterally. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 1, 2 and

3. The doctor further stated that injuries Nos. 1, 2 and 3 were individually sufficient in the ordinary course of nature to cause death. He added that all the injuries had been caused with a sharp‑cutting weapon such as hatchet. Lastly, the doctor found that the stomach of the deceased contained semi‑digested food. The appellant was arrested on the 16th of September 1964. Nothing incriminating was found from his possession.

6. The appellant pleaded not guilty to the charge. He further stated that he had been falsely implicated in the case. He, however, produced no defence.

7. At the trial, the case of the prosecution, as detailed above, was supported by Muhammad P. W. and his sister's husband, namely, Rahimdino P. W. Both of them unanimoulsy stated that they had seen the appellant giving hatchet blows to Mst. Rahiman deceased resulting in her instantaneous death. Suleman P. W. who is also a distant relation of Muhammad P. W., deposed having seen the appellant immedi ately after the occurrence carrying a hatchet. Muhammad P. W. however, did not mention in the F. I. R. that Khair Muhammad and Mst. Mirzadi P. W. had arrived at the spot shortly after the occurrence and that they were informed that it was the appellant who had committed the murder. Briefly stated, the case of the prosecution is based on the ocular evidence fur nished by the two witnesses referred to above.

8. It is common ground between the parties that the occurrence took place on a moonlit night. The case of the prosecution was that the appellant killed Mst. Rahiman under a mistaken notion that she was his wife Mirzadi, who was carrying on illicit intimacy with Muhammad P. W. Consider ing that it was a moonlit night, it is difficult to believe that he killed the deceased by mistake. Apart, from this, I find that in the F. I. R. as also subsequently at the trial, Muhammad P. W. stated that the appellant had off and on threatened him with dire consequences because he was keeping his (ap pellant's) wife as a mistress. Muhammad P. W. was sleeping close to his mother Mst. Rahiman deceased. There is no plausible reason why the appellant did not commit the murder of Muhammad P. W. who was carrying on with his wife for the last five or six years, and instead committed the murder of his mother.

9. Further, I find that Muhammad P. W. mentioned in the F. I. R. that the appellant had inflicted two or three injuries with a hatchet on the deceased. As against this, the medical evidence shows that the deceased had sustained seven injuries with a sharp‑cutting weapon. The only inference therefore is that Muhammad P. W. had not seen the appellant actually committing the murder of the deceased.

10. The doctor also found semi‑digested food in the stomach of the deceased. According to the High Court Calendar the sun had set at 6‑35 p.m. on the alleged day of the occurrence. Assuming that the deceased had taken her meals within one hour after sun‑set, then the semi‑digested food could not have been found in her stomach at the time of the post‑mortem examination. It is not disputed that ordinarily food is completely digested within five to six hours. In the present case, the murder is alleged to have taken place after midnight. Considering that semi‑digested food was found in the stomach of the deceased, the inevitable inference is that Mst. Rahiman was killed at about 10 p.m. It is, therefore, apparent that she was killed by someone and later when the murder was detected the appellant was involved on mere suspicion. Needless to add that no independent witness was produced in this case. There being no corroboration of the statement of the eye‑witnesses who are closely related to the deceased, it would not be safe to uphold the conviction of the appellant under section 302 of the Pakistan Penal Code.

11. For the reasons stated above, I accept the appeal and giving the appellant benefit of doubt acquit him of the charge. He shall be released from jail forthwith provided always that he is not required to be detained in connection with any other case. Appeal accepted.