P L D 1965 (W (PLP)

RAYMOND, J.‑-The two appellants Sultan aged 25 and his elder brother Bilawal aged 40 both sons of one Razi and residents of Deh Keti Abubakar, Taluka Naushahro Feroze, District Nawabshah, have been convicted by the Additional Sessions Judge, Nawabshah of the murder of Mst. Fatima, wife of Sultan, and have each been sentenced to death. They have appealed from these convictions and sentences. The learned Additional Sessions Judge has also referred this matter to us under section 374, Cr. P. C. for confirmation of the death sentences. This judgment then will dispose of both the appeals as well as the murder reference.

2. The brief facts giving rise to this case are that the two appellants used to reside in separate houses within the same enclosure. The appellant Bilawal was carrying on an illicit liaison with one Mst. Sahibzadi P. W. 9 which was resented by Mst. Fatima wife of appellant Sultan. She had remonstrated pith Mst. Sahibzadi and had prevented her from visiting the appellant Bilawal. This had annoyed both the appellants so much so that they had threatened Mst. Fatima with serious consequences. On the evening of the 9th July 1963 Mst. Fatim:i who was in mortal fear of her life went to the home of he father Hidayatullah P. W. 2, the complainant in this case, and told him of the fear she was in and of the threats that had been meted out to her by her husband and her brother‑in‑law Bilawal, because she had taken exception to the illicit intrigue then going on between her brother‑in‑law Bilawal and Mst. Sahibzadi. Her father assuaged her fears, pacified and enclosed her and a s a measure of precaution and comfort, he sent his two younger daughters Mst. Rehmat aged 7 and Mst. Sihat aged 5 with her back to her house to pass the night there with her.

3. On the following day, the 10th July 1963 at about one pahar after sunrise while Mst. Fatima was grinding corn the two appellants are alleged to felled her down on a cot and while the appellant Sultan sat on her legs the appellant Bilawal is said to have tied a rope around her neck and strangulated her. Her two younger sisters Rehmat and Sihat seeing this began crying and went running to inform their father who, at that time, was in the mosque reading the Quran Sharif to Azizullah P. W. 4 and Dur Mohammad. On receiving this information com plainant Hidayatullah immediately rushed in the company of Azizullah and Dur Mohammad to the house of his daughter Mst. Fatima and found her lying dead on her cot with marks of violence on her neck. At the same time he saw the two :appellants leaving this house and going towards the house of :appellant Bilawal. The complainant and his two companions challenged the two appellants but they threatened them with violence and thus made good their escape. The complainant leaving Azizullah and Dur Mohammad at the scene went to Rais Mitha Khan and informed him of the incident. He was referred to the police and, accordingly, he went first to Mithiani Outpost where no policeman or officer was present and from there to Naushahro Police Station, fourteen miles away lodged his report at 4 p.m. on that day.

4. Sub‑Inspector Mohammad Tufail P. W. S.H.O. Naushahro Police Station after recording the report of complainant Hidayatullah proceeded straightway to the Vardat and prepared a mashirnama of the scene of offence as per Exh.

14. He then prepared an inquest report over the dead post‑mortem examination. The appellant Bilawal was produced before him and was placed under arrest. He produced before the S. H. O. a rope tied to the horn of a bullock which was secured under mashirnama Exh.

16. The Investigating Officer then examined several prosecution witnesses and upon concluding his investigation into this case he challaned the appellants in Court on the 25th July 1963.

5. The appellants in their statements in the two Courts below have denied each and every allegation put to them. They aver that the prosecution witnesses are interested and co‑related and on inimical terms with them and hence they have testified against them. The appellant Bilawal denied having produced a rope before the police. They declared that the deceased Mst. Fatima had committed suicide because she was not on good terms with ‑the wife of appellant Bilawal, who was constantly harassing her and hence to escape this harassment she had said that she would put an end to herself.

6. It is not disputed in this case that the deceased Mst. Fatima had died an unnatural death. The evidence of Dr. S. Khawaja Hassan then Medical Officer Naushahro Feroze who performed the post‑mortem examination upon her dead body discloses that he found, on external examination, a ligature mark round the neck" in width below the thyroid prominence. The groove was abraded. On dissection there was collection of blood under the groove. The trachea was fractured on the 3rd and fourth rings. The doctor opined that this injury was caused by the tightening of a rope round the neck. It was ante‑mortem and appeared to have been caused 24 hours before the doctor performed his post‑mortem examination. On internal exami nation the doctor found the Thorax and pleura congested, the abdomen and stomach empty and the uterus containing a foetus measuring 3" long and weighing one ounce. It was of three months growth. The doctor stated that in his opinion the cause of death was asphyxia consequent upon strangulation. The external injury was sufficient in the ordinary course of nature to cause death.

7. The sole question of importance for determination in this appeal is whether the guilt of the two appellants has been brought home to them. The case for the prosecution rests upon the evidence of the young girl Mst. Rehmat P. W. 3 supported by P. W. 5 Ibrahim and P. W. 6 Ghulam Nabi who both claim to witnessed the strangulation. Then, there is the corroborative evidence of the complainant Hidayatullah P. W. 2 and Azizullah P. W. 4 who rushed to the scene from the nearby mosque and saw the two appellants emerging from the house. There is also on record the evidence of Moula Dad P: W. 7 before whom each of the appellants is alleged to have made an extra‑judicial confession. Finally, there is the production of the rope by the appellant Bilawal but as no bloodstains were discernible upon it no importance can attach to this last piece of evidence. It may be mentioned here that the accused examined Haji Mitha Khan to whom the complainant Hidayatullah went at once after seeing his daughter dead, as a defence witness: but, his evidence rather supported the prosecution because he corroborates Hidayatullah and says that he had come to him telling him that Bilawal and Sultan had murdered his daughter Fatima.

8. Now, this evidence for the prosecution has ruthlessly been criticized and attacked by Mr. Mohammad Hayat Junejo, the learned Advocate appearing on behalf of the appellants. He has contended, in the first place, that the only eye‑witness to the murder of Mst. Fatima is her young sister Mst. Rehmat aged

7. The two prosecution witnesses Nos. 5 and 6 Ibrahim and Ghulam Nabi who also claim to have witnessed the strangu lation are, according to him, chance witnesses whose names do not figure in the F. I. R. They are also connected with the prosecution witnesses inasmuch as P. W. 5 Ibrahim is the sister's son of Moula Dad P. W. 7 whereas P. W. 6 Ghulam Nabi is a son‑in‑law of complainant Hidayatullah and husband of the sister of deceased Mst. Fatima. The learned defence Advocate has further pointed out that it is extremely unlikely that the appellant Sultan recently married with two living children, a son aged 3, and a daughter aged 2 and one ENVENTRE SA MERE would want to murder his young wife on account of a dissolute brother and he further submitted that if at all the two appellants were so inclined they could very easily have disposed of the deceased during the night instead of in broad day light.

9. We have bestowed our anxious consideration upon the prosecution evidence in this case. In the very first instance, it appears to us to be unnatural and unlikely that the complainant Hidayatullah if he wished to comfort and console his timid daughter Mst. Fatima would, by way of consolation send her home along with her two younger sisters aged 7 and 5 years respectively. It is in evidence that complainant Hidayatullah had then living with in his own house his two elder sons Sheral aged 15 and Ahmed Rafique aged 12 years respectively. It seems to us strange that instead of sending these two grown up lads with Mst. Fatima he should have‑ sent her home in the company of two young girls.

10. A second circumstance that has caused us grave misgivings as to the authenticity of the prosecution case is the presence of the two witnesses Ibrahim P. W. 5 and Ghulam Nabi P. W.

6. According to these two witnesses they both happened to be at the time of the murder in a graveyard some sixty paces away from the house of the deceased. They both stated that they had been there that morning for the burial of the grand daughter of one Ali Bux and that after the burial all the mourners had left the burial ground except these two witnesses who stayed behind‑ "to repair the graves of their relations." From this burial ground they heard the cries of the two minor girls Rehmat and Sihat and on rushing to the house of appellant Sultan they saw him sitting over the legs of his wife Mst. Fatima, while appellant Bilawal was pulling off the rope from the neck of Mst. Fatima. Having seen this these two witnesses Ibrahim arid Ghulam Nabi did not attempt to remonstrate with these two unarmed appellants or to lay hold of them. Instead, they went to inform Hidayatullah but on not finding him in his house they quietly and peacefully returned each to their own houses. We have also mentioned above that the names of these two witnesses do not appear in the F. I. R. nor, do they appear in the evidence of the Investigating Officer S. I. P. Mohammad Tufail P. W.

10. It is thus apparent that this Investigating Officer had not recorded their police statements. It is true that each of them does lay claim to having made a statement to the police but the Investigating Officer at least had not examined them. We have also observed that these two witnesses. are related to the prosecution witnesses. Ibrahim P. W. 5 is the sister's' son of Moula Dad P. W. 7 to whom the extra judicial confession are alleged to have been' made and Ghulam Nabi P. W. 6 is a son‑in‑law of Hidayatullah and husband of the sister of deceased Fatima. It seems to us incredible that this witness on seeing his sister‑in‑law being strangulated to death by her own husband and her husband's brother should do nothing about it but it should be content on not finding her father in his house to return to his own house as though nothing important had happened. In view then of these infirmities in the evidence of these two witnesses Ibrahim and Ghulam Nabi, we find it very difficult to place any reliance upon their testimony.

11. With regard to the evidence of the complainant Hidayatullah P. W. 2 and his uncle Azizullah P. W. 4 we observe that they are not eye witnesses to the murder. The complainant Hidayatullah in his F. I. R. has stated that on reaching his daughter's house he found her dead and‑-- "Sultan and Bilawal accused also standing there." But, in his deposition in Court he as well as his uncle Azizullah have stated that they saw the two appellants emerging from the house of Sultan and going towards the house of Bilawal accused. This house, being the house of Sultan, there is nothing untoward in him being seen emerging from his own house. Equally, Bilawal being Sultan's brother may very well enter and leave Sultan's house.

12. But, the circumstance that has greatly agitated our minds in this case and has caused us to seriously doubt the truth of the prosecution story is the fact that when the doctor performed the post‑mortem examination on the dead body of deceased Mst. Fatima, he found her stomach empty. It seems to us that if it be true that she was done to death in the early morning between 9 and 10 a.m. then her stomach would certainly not have been empty because there would have been the remains of her morning breakfast. We are aware that these villagers do not go in for elaborate breakfasts but, nevertheless, they do have bread and tea or Chappatis and tea. The fact that the doctor who performed the post‑mortem examination 24 hours after her death found her stomach empty goes to show that she was murdered in the early hours of the morning and after she had completely digested her .night meal. It also seems to us most unlikely that the appellants even if they should desire to put an end to this young wife carrying in her womb an infant of 3‑4 months would do so in broad day light rather than in the secrecy of the night. Mst. Fatima was found murdered in her own home where she was living with her husband and her two infant children. If at all she had to be done to death by her husband and her brother‑in‑law this could more safely and more securely have been accomplished in the darkness of the night rather than in broad day light.

13. Nor, are we inclined to place any reliance upon the testimony of Moula Dad P. W. 7 to whom the two appellants are alleged to have gone one after the other and made each an extra‑judicial confession to him. It is true that this Moula Dad is the Zamindar of Deh Keti Abubakar where the appellants reside. This, by itself, is no sufficient reason for believing that the two appellants would that same day one after the other go to him and confess that they had murdered Mst. Fatima. With regard to the appellant Bilawal it is in evidence that it was Moula Dad who passed him on to P. W. Azizullah for production before the police: but, with regard to the appellant Sultan there is no such circumstance that may induce us to believe that he had visited Moula Dad and made an extra‑judicial confession to him. Moreover, the part assigned by the prosecution to this appellant Sultan appears to us to be so artificial. He is alleged to have sat on his wife's legs while his brother Bilawal tightened the rope round her neck. The appellant Sultan is aged 25 and, according to the medical evidence, his deceased wife was aged 24 at the time of her death. They had recently been married and have two living children, a son aged 3, a daughter aged 1 and a baby on the way. Mst. Fatima was three to four months advanced in pregnancy and this fact must have been known to her husband appellant Sultan. It thus strikes us as most odd that this young husband would want to do away with his young and newly married wife in such a cruel manner merely for the sake of his dissolute and immoral brother. It is common knowledge that in the Province of Sind wives are not easy to come by and, therefore, apart from considerations of love and natural affection the appellant Sultan for purely financial and economic reasons would not easily consent to doing away with his young wife.

14. There thus remains the solitary oral testimony of the young child aged 7 and Mst. Rehmat. Although the learned Additional Sessions Judge has taken the precaution of putting questions to her and of satisfying himself as to her intelligence and ability to understand questions and give coherent answers, we feel that it would be most unsafe to base the conviction` on these two appellants upon the sole testimony of this young child. We are not even satisfied that she saw the occurrence. In the result therefore, we are not satisfied that the guilt of the two appellants in respect of the murder of deceased Mst. Fatima has satisfactorily been brought home to them and, therefore, giving them the benefit of the doubt, we direct that they be acquitted and set at liberty unless wanted in some other case. K.B.A Appeal accepted.