P L D 1966 (W (PLP)

KHAMISANI, J.‑

The appellant has been convicted under section 302, P. P. C., and sentenced to death. He has filed this appeal. The matter is also before us for confirmation of the sentence of death passed on him. We shall dispose of both the appeals filed by the appellant and the murder reference under this judgment.

2. The facts of the prosecution case briefly are that the appellant had married Mst. Subhan about 15 years before this incident. He married another wife Mst. Husna by name some years before the incident. After the appellant married his second wife he started quarrelling with his first wife and also pestered her for delivering her ornaments to his second wife. Mst. Subhan, the first wife of the appellant, consequently approached Mahboob and lodged a complaint with him on account of which Mahboob sent for the appellant and told him not to harass her. The appellant ever in the presence of Mahboob persisted in his demand for S ornaments being handed over by Mst. Subhan to Mst. Husna. Mst. Subhan gave him her two earrings and promised to give the rest of the ornaments but requested that she should not be turned out of the house. On the assurances given by the husband and wife to each other they both left for their place.

3. On the 22nd of August 1964, Mahboob went to the house of the appellant to see if the husband and wife had ironed out their differences and patched up. Finding Mst. Subhan absent from her house he made inquiries from the appellant about her and was told that she had left the house and run away. He suspected a foul play and therefore informed Qaimuddin P. W. 4 who was a Head Constable of Police on that very day. He also requested Qaimuddin to save him from being dragged in the matter and asked him to lodge a report with the police on behalf of the State Qaimuddin, therefore registered his first information report Exh. 10 on behalf of the State at Chak Police Station which was at a distance of about five miles from the scene of offence on the 22nd of August 1964 at 5 p.m.

4. During the course of investigation the Police came to the scene of offence and recorded the statements of Mahboob, Amin and others. The appellant was arrested on the 23rd August 1964. He is said to have taken the police to his house and pointed the place of the incident on the roof of his house which appeared to be freshly plastered. After removing the fresh plaster from the roof some scrappings which appeared to be stained with blood were secured. Some scrappings from the wall of the house and arms and leg of a cot were also secured as blood was noticed on them. The appellant also produced a hatchet from Palal grass, scrappings of which were also taken by the Police. The mashirnama for all these articles Exh. 15 was made in the presence of Abdul Majid and Juman. The appellant thereafter is said to have led the police to an abandoned well from where the dead body of Its Subhan was recovered. Mashirnama Exh. 16 for the recovery of the dead body was made in the presence of the same mashirs Abdul Majid and Juman by the same S. H. O. Lal Muhammad After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him and alleged enmity with the witnesses. He has examined no witness in defence.

5. The question whether Mst. Subhan sustained injuries and died on account of them is not disputed. The evidence of Dr. Syed Ahmad Exh. 20 has also established that there were hatchet injuries on the person of Mst. Subban which were sufficient in the ordinary course of nature to cause death.

6. The only question that needs to be decided in this appeal is whether the appellant caused those injuries to Mst. Subhan which resulted in her death. There is no ocular evidence in this case. The case of the prosecution is founded mainly upon the evidence of. Mahboob P. W. 3 supported by the recoveries made at the instance of the appellant. The evidence of Mahboob is to the effect that Mst. Subhan, the deceased, had complained to him that her husband, the appellant, was harassing her and was wanting her to give her ornaments to his second wife Mst. Husna. He has also stated that he had called the appellant but the appellant insisted upon his demand of getting the ornaments from Mst. Subhan. He has also stated that Mst. Subhan and the appellant left his place after having reached an agreement that Mst. Subhan would give the ornaments to the second wife of the appellant and that the appellant would not drive her out of the house. He has further stated that on the second day of the complaint made by Mst. Subhan he went to the house of the appellant to see if the husband and wife were living peacefully but found Mst. Subhan missing from the house. He has also stated that on inquiries made from the appellant about the where?abouts of Mst. Subhan he was informed that Mst. Subhan had left her house and run away. He had also stated that he suspected a foul play and therefore made a complaint of it to Head Constable Qaimuddin P. W.

4. Qaimuddin has supported him.

7. The evidence of Mahboob stands belied by the evidence of Abdul Majid P. W. 6 who has stated that the dead body of Mst. Subhan was found in a highly decomposed state and was smelling very badly. This evidence of Abdul Majid is not consis?tent with the evidence of Mahboob as according to his evidence he came to know of the murder almost a few hours after the alleged murder was committed. The body of Mst. Subhan could not have been found in that highly decomposed condition if the murder had been committed a few hours before the recovery of the body. It has also been established on record that Mahboob is a sworn enemy of the appellant and has a grievance against him on account of his brother Momin having been prosecuted for' the murder of Wadero Ahmad, cousin of the appellant three years before the incident. He has also a grievance against him because his mother Mst. Hidayat had disappeared sometime before the incident and the appellant was suspected to be concerned in, her disappearance. The evidence of Mahboob has also not been supported by the evidence of Amin P. W.

5. Under these circum?stances, it is difficult to place reliance upon the evidence of Mahboob both in respect of the motive as well as in respect of the statement of the appellant made to him regarding the disappear?ance of Mst. Subhan.

8. The evidence of Mahboob having been discarded the only evidence with which the prosecution is left is the recovery of the scrappings from the roof and the wall of the house of the appellant and arms and legs of a cot and the blood‑stained hatchet at the instance of the appellant. All these articles were secured under mashirnama Exh. 15 in the presence of mashirs Abdul Majid P. W. 6 and Juman P. W.

7. Both these mashirs have not supported the case of the prosecution.

9. The next piece of circumstance against the appellant is the recovery of the dead body at his instance from an abandoned well for which mashirnama Exh. 16 was made in the presence of the same mashirs by the same police officer Lal Muhammad P. W.

8. On the question of recovery or the dead body also it is only Abdul Majid who has supported the case of the prosecution whereas Juman has given a go by. The articles recovered at the instance of the appellant were sent to the Chemical Analyser and his report Exh. 14 discloses that human blood was detected only in the scrapping from the hatchet. The circumstance of human blood having been found in the scrappings of the hatchet and the recovery of the dead body at the instance of the appellant, in our opinion, even if believed, will not be sufficient for bringing home to the appellant the offence of murder under section 302, P. P. C. Under these circumstances, we consider the evidence against the appellant to be doubtful and giving the benefit of the doubt to him we accept his appeal and acquit him. He is in jail and shall be released forthwith if not required in any other case. K.M.A.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.