1988 P Cr (PLP)

This Jail Appeal No. 89 of 1985 is directed against the judgment dated 27th October, 1985 of learned Sessions Judge, Thatta, whereby appellant has been convicted under section 302, P.P.C. and sentenced him to imprisonment for life and pay fine of Rs.5,000, in default to undergo R.I. for six months. He has further been ordered to pay sum of Rs.5,000 to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. or in default to undergo R.I. for period of six months.

2. The case of prosecution is that complainant Esso and accused are cousins. Mst. Janat is sister of the appellant. On the day of incident it is alleged that appellant came in the house where Mst. Janat was sifting grain near her house where accused came with spade. He asked Mst. Janat to prepare tea for him to which she replied that after finishing her work she would prepare tea. On her refusal Muhammad gave spade blow from the back side, she fell down. Esso and Mst. Raj Bai who were present in the house came. In the meanwhile appellant again caused two spade blows on her face from the back side. Mst. Janat died within half an hour. In the meanwhile her husband Usman came whom Esso informed. People from neighbouring village namely Hussain and Muhammad and others also arrived and they were given the facts. Leaving appellant Muhammad and dead body of Janat the complainant Esso went and lodged report at P.S. on the same night i.e. 13‑8‑1983 at 02‑30 hours. Police after usual investigation challaned the appellant. The case proceeded and prosecution examined 11 witnesses in support of the case. Complainant Esso Exh. 6 and Mst. Raj Bai Exh. 8 are the eye‑witnesses of the 'incident. Muhammad son of Ismail Exh. 10 and Usman husband of Mst. Janat Exh. 12 came afterwards. Abdul Qayoom Mukhtiarkar Exh. 23 recorded the confession of appellant. Muhammad Hashim Exh. 17 and Sodho Exh. 27 are the Mashirs. Dr. Muhammad Ismail Exh. 20 conducted post‑mortem of Mst. Janat H . C . Khuda Bux Ex. 22 and S.H.O. Khalilur Rehman Exh. 28 are investigating officers whereas P.C. Pervez Akhtar is corpse bearer. The evidence against the appellant consists of ocular testimony of two witnesses complainant Esso and Mst. Raj Bai, confession, medical evidence and recovery of blood‑stained spade. Complainant Esso and Mst. Raj Bai have not supported the case, though they are eye‑witnesses. Esso stated in the Court that he was informed on the lands that some one had knocked down Mst. Janat who had lost senses. On getting such information he went to his house and found Mst. Janat lying unconscious, in the Chilli field where she was working. On enquiry Mst. Raj Bai told him that she heard cries of Mst. Janat and went running where she found her lying unconscious. Same is the evidence of Mst. Raj Bai, Both the witnesses have been declared hostile and 164, Cr.P.C. statement of Mst. Raj Bai was produced and she was confronted. The evidence of Muhammad son of Ismail Exh. 11 is that he was sitting in the mosque where he heard cries coming from the house of Esso. He went there and found Mst. Janat lying on the ground having injuries on her face and head. She expired and on enquiry Esso told that appellant asked for tea but Janat replied that she was sifting grain on which Muhammad gave injuries on her head and face as a result of which she fell down and lost senses. He produced his 164, Cr.P.C. statement as Exh. 11 in which he stated that Esso informed him that Muhammad gave blows to Mst. Janat with blunt side of spade. P.W. Usman Exh. 12 is husband of Mst. Janat. He has stated that on the day of incident when he returned to village after Juma prayer, he found some persons in his house and on enquiry Haji Esso told him that appellant had killed his wife with spade as she was not preparing tea for him. He has produced 164, Cr.P.C. statement as Exh. 13 in which he stated that he was informed that deceased was given blows with blunt side of spade Muhammad Hashim is Mashir of arrest of accused and recovery of spade from him. He produced Mashirnama of arrest, Mashirnama of place of Vardat, inquest report and Mashirnama of recovery of spade from accused Muhammad as Exhs. 18, 19, 20 and 21 respectively. But he has not supported in respect of the production of spade by accused. Mr. Abdul Qayoom Exh. 23 has stated that he was Mukhtiarkar on 13‑8‑1983 when appellant was produced. He after observing all the formalities recorded his confession which is true and voluntary. Dr. Nasir Ismail Exh. 25 stated that on post‑mortem examination he found following injuries on deceased Mst. Janat:‑‑ (1) Incised wound on the left side of head 2" x 1" x bone deep. Underlying bone fractured and the brain was lacerated. (2) An incised wound on the back of the head 1" below to injury No. 1 measuring 3" x 1" x bone deep. The underlying bone was fractured and the brain matter was lacerated. (3) An incised wound on the left side of the face just below on lateral half of the left eye 1.5 c.m. x 0.5 c.m. x bone deep and the underlying bone was fractured. He is of the opinion that death was caused due to shock and haemorrhage as result of injuries mentioned above. He stated that all the three injuries appeared to have been caused by sharp‑cutting weapon such as hatchet and injuries No. 1 and 2 individually and all the injuries collectively were sufficient to cause the death of deceased. Mashir Sodho Exh. 27 has not supported the case in respect of recovery of blood‑stained spade from the accused. He was declared hostile. S.H.O. Khalilur Rehman Exh. 28 incorporated report of Esso in 154, Cr.P.C. book at P.S. Jati. He stated that report was recorded at P.S. Mureed Khoso. He produced F.I.R. as Exh.

29. He sent dead body to Medical Officer Jati through P.C. Parvez for post‑mortem. On the same day accused Muhammad was arrested and was produced before Mukhtiarkar for confession. He verified the investigation. He has produced chemical report as Exh.

30. Appellant in his statement under section 342 Cr.P.C. has denied the allegation and stated as under:‑‑ "There was dispute over land between Muhammad P.W. and me. About 6 months prior to the incident my brother‑in‑law Usman that is the husband of deceased Mst. Janat is relative of P W. Muhammad. Muhammad had asked Usman to shift over his land, but he had refused to go with him. On the day of incident I and Haji Esso had been working in our land again says my sister Mst. Janat had refused to go with Muhammad Usman to the land of P.W. Muhammad. On the day of incident while I and complainant Esso as well as Hussain had been working in our nearby field a boy came there and informed us that a fight had taken place in the village. We, therefore, went there running and saw that my sister Mst. Janat was lying dead outside of her house and one blood‑stained hatchet was lying there. On my enquiry Mst. Raj Bai told us that on cries of Mst. Janat she went to her and saw two unidentified persons running away from the place of the incident. My cousin Isso went to P.P. Murid Khoso for lodging the report. He brought the police to the place of incident. On the next morning at about 8 a.m. Police arrested me, Isso. Muhammad and Usman. Police took us to P.P. Murid Khoso. Police called the members of my family to out post and compelled me to make a confession, which was dictated by the S. H.O. I am innocent." He also examined one witness Hussain in his defence. I have heard the appellant who is present and produced by Jail authorities. He has stated that he has been involved due. to enmity. Mr. Riaz appearing for State does not support the conviction and submitted that entire evidence is doubtful and contradicted by medical evidence.

4. The case of prosecution as disclosed in the F.I.R. is that appellant caused three injuries to Mst. Janat by back side of the spade and witnesses who were produced for 164 Cr. P.C. statement have also categorically stated that injuries were caused from back side of the spade to deceased Mst. Janat. This is also the evidence of Usman and Muhammad in their 164, Cr.P.C. statement. Eye‑witnesses i.e. complainant Usman and Raj Bai have not supported the case and have resiled and have stated that they had not seen the appellant causing injuries to the deceased. There remains confession of the accused which in view of the medical evidence is not true as appellant in his confession has also stated that he caused injuries with back side of hatchet to deceased MsL. Janat. This confession does not get the corroboration' from any other circumstances. I have gone through Mashirnama of recovery of spade Exh. 21 which clearly shows that blood was found on the blunt side of the spade.

5. Moreover both the Mashirs have not supported so far recovery of spade is concerned. The medical evidence is clear that deceased sustained three incised wounds caused by hatchet. All these incised wounds could not be caused by blunt side therefore entire evidence of the prosecution has been falsified and in these circumstances it is doubtful whether the eye‑witnesses who though not supported had seen the incident as alleged in the F.I.R. and 164, Cr.P.C. statements. In absence of ocular evidence and retracted confession being not in conformity with the medical evidence and Mashir of recovery and eye‑witnesses did not support, therefore, in these circumstances I extend benefit of doubt to the appellant. In the result his appeal succeeds and he is acquitted. He is in Jail. He shall be released forthwith if not required in any other case. S.A./M‑319/K Appeal accepted.