P L D 1961 (W (PLP)

MUNSHI, J.‑--In disagreement with the unanimous opinion of the assessors, the, learned Sessions Judge of Larkana, Mr. Moula Bakhsh G. Leghari, has convicted appellant Pinyo by caste Jatoi, of the offence under section 302, P. P. C., and sentenced him to transportation for life, for having killed his wife Mst. Pariah Khatoon. The appellant had married Mst. Panah Khatoon about 8 years before the incident. Sometime before the incident, he declared the deceased as kari with Soomar Jatoi and turned her out of his house. She went and lived with her parents. 1n compensation, he got a girl Mst. Sabhan Khatoon, daughter of Ghulam Nabi, brother of Soomar Jatoi. But although lie received the above compensation, he did not give up his connection with his wife and visited her in the house of her parents. Having come to know of this fact, Soomar took away his niece from the appellant. Thereafter, in a hotel of one Hajan Shali; Soomar and his brother‑in‑law Qadir Bux, gave assurance to the appellant Pinyo and Majnu on Holy Quran that his wife was not kari with Soomar. Relying upon this assurance, the appellant and Majnu went to the mother of the deceased and told her that they were satisfied that the deceased was not kari with Soomar and therefore they had no objection in taking her back. The parents of the deceased, there fore, permitted the appellant to take her away to Larkana. She was taken away by the appellant and three others namely, Majnu. Sliahbazi and Mashook. Mst. Samani, the mother of the deceased also accompanied them. Shortly thereafter Majnu and Mashook left. The appellant then took his wife and children and Mst. Samani to the house of witness Ghulam Hyder in village Hingorja, and settled there. After some days, Mst. Samani returned home. Some days thereafter, she received a letter from Ghulam Hyder that the appellant had taken away his wife and children to the house of Mevo the brother of the deceased, who was reported to be ill. Ghulam Hyder, when contacted, con firmed the above version. While Mst. Samani was on her way back to her village, witness Bacho, informed her at Larkana Railway Station that he had been informed by Majnu that they had killed Mst. Pariah Khatoon, and that they should get a girl as compen sation. Mst. Samani then made an application to the Superinten dent of Police, Larkana, who endorsed it to the S. H. O. Larkana for action. Soon thereafter, she came to know that the dead body of Mst. Panah Khatoon had been recovered by Naodero Police from the rice canal. She went to Naodero and presented her application to the S. H. O. Naodero, who recorded first report at 1‑30 p.m on 9‑9‑1959. The body recovered from the rice canal had on her person coloured rubber bangles, a silver ring, a shirt, a pair of trousers and one amulet. These articles were identified by the complainant as belonging to the deceased. After going through the formalities of investigation, the police challaned Majnu, Shahbazi and Mashook, showing the appellant as absconder. The appellant gave himself up before the Court on 28‑11‑1959. The trial Court convicted the appellant as indicated above and acquitted the rest. The appellant in his statement denied the allegation and proclaimed his innocence. He denied having declared his wife as `Kar'. We have heard the learned counsel for the appellant and the learned A. A. G. for the State: The latter frankly conceded that he cannot support the judgment and according to us he is right in doing so. There is no eye‑witness of the incident. Even the circumstantial evidence apart from being scanty is not conclusive. The learned Judge has based his judgment on the alleged fact that the deceased was last seen with the appellant. Even if it be conceded that she was last seen with the appellant, it is not a circumstance leading to the conclusion that she was done to death by the appellant. She was his wife and therefore would normally be with them. The prosecution version that the appellant visited the deceased when she was living with her parents, is inconsistent with their version that he had declared her as kari. Under Baloch custom to which the learned Judge has referred the kari has to be killed after she is declared as such. And it is not in all cases that the kari is killed by her husband. Assuming therefore that she was wart, that fact by itself would not lead to the conclusion that the killer must be her husband. The circumstance that the appellant visited the deceased even after declaring her kari, shows that he was not to a mood to kill her. Therefore the possibility of her being killed by some other relation of the appellant has (sic) to be, excluded. This is not done. There is no other evidence, circums tantial or otherwise to connect the appellant with the guilt. We allow his appeal and set aside his conviction and sentence imposed upon him. The appellant is on bail, his bail bond, stands S.B. Appeal allowed.