P L D 1954 Sind 121 (PLP)

VELLANI, J.‑This matter has come to me on a difference between Muhammad Bachal J. and Muhammad Bakhsh, J. I have been taken minutely through the, entire record of the case but as the evidence has been set out already in the prior judgment, I need do no more here than discuss it and consider its effect. Correctly speaking there is no extra‑judicial confession in the case. Bahar's statement that the day after the incident the appellant had informed him that he had killed his wife after declaring her as 'Kari' with Abdul Ghafoor Kalwar appears irk his statement recorded under section 164 Cr. P. C. and is not substantive evidence. The judicial confession does not correctly fall in the category of a confession for it does not confess to the crime charged, and the contents show that its making is not consistent with a confessing mind. Besides it is falsified by the evidence on the record. His statement that he found his wife Mst. Ghulam Fatma deceased naked with Ghafoor, son of Ghulam Kadir Kalwar in the landhi is belied by the absence of any footprints at the landhi to which he led the police. His statement that he hit his wife with his shoe on her face is not supported by the finding of any injury upon her face by the medical officer, and lastly his story that he throttled her after sitting over her chest is belied by the ligature mark found round the neck of her dead body by the medical officer in whose opinion. Mst. Ghulam Fatma was strangulated by a ligature or cord It has been said that the appellant's section 164 statement contains an admission that he caused the death of his wife Mst. Fatma but the very manner in which he says he caused her death is untrue. It is therefore unwise to place any reliance upon this statement. The case then emerges as one purely of circumstantial evidence. As to the motive that Ghulam Fatma was illicitly in timate with Abdul Ghafoor, there is no reliable prosecution evidence to establish it. Neither Bahar nor Wali Muhammad supports it in his deposition in the trial Court. Bahar is contradicted in his examination‑in‑Chief presumably with the permission of the Court, with his deposition in the Committal Court to the effect that after the burial of Ghulam Fatma's body, the appellant told him in his own house that he had seen his wife in compromising terms with Abdul Ghafoor son of Ghulam Kalwar in the landhi of Saindino. There is nothing on the record to indicate that Bahar's statement in the Committal Court was brought on the record under section 288 Cr. P. C. and it would seem from the absence of cross‑examination for the appellant on this point that the appellant had not been given to understand that the statement was being admitted and used as substantive evidence against him. Moreover the entire deposition of Bahar to the Committal Court was not brought upon the record as is usual when it is admitted under section 288 Cr. P. C. in order to enable the Court to see the entire context in which the statement appears. In the same manner Wali Muhammad was cross‑examined in examination‑in‑Chief and contradicted by his deposition in the Committal Court to the effect that he knew that Mst. Ghulam Fatma was on illicit terms with Abdul Ghafoor Kalwar without any indication that section 288 was being used. He was not cross‑examined for the appellant at all. In this state of the record there is not sufficient prosecution evidence to prove the motive alleged. The appellant denied that his wife was on terms of illicit intimacy with Abdul Ghafoor in his statement before the trial Judge and adhered to his statement in the Committal Court that she had died because of kidney pain. The only circumstance the prosecution was able to establish against him is that Bahar had got up before dawn on 11th April 1952 for his morning prayer when he heard the appellant weeping, sitting in the courtyard, and when he went up to him the appellant told him that his wife Fatma had died of kidney pain at midnight. There is no evidence whatever to show at what time the appellant had come home that night. Even Wali Muhammad heard the appellant weeping after he had returned from the mosque in the early morning of 11th April 1952, These circumstances do not lead to the inference that it was the appellant who strangulated his wife Mst. Fatma for it does (not ?) exclude the possibility of his arrival at home after she had died. The medical officer found a 3" x 12" ligature marls low down the neck of Mst Ghulam Fatma's body which in his opinion is the result of the tightening of a ligature round her neck which resulted in strangulation. The medical officer was not examined by the trial judge. He was not cross‑examined at all before the Committing Magistrate who recorded his evidence. The possibility of self‑strangu lation was not put to him by the prosecution and excluded. Three of the four assessors were of the opinion that Mst. Ghulam Fatma may have strangulated herself. That self‑strangulation was possible is indicated in the following passage in Taylor's Principles and Practice of Medical jurisprudence (10th Edition, 1948) Vol. I, p. 575 :‑ "On the other occasions, the disposition or nature of the ligature has enabled a person bent on suicide to strangle himself without much difficulty. An instance is related by Orfila in which two cravats, that were twisted several times around the neck of the deceased, who was discovered lying on his bed, had effectually served the purpose of suicide. Sometimes strangulation had been suicidally effected by a rough cord passed several times around the neck, and tightened by being pulled with each hand. The number of coils causes some pressure to be exerted, even when the grasp relaxed in death. Other cases are reported, in which suicides have succeeded in strangling themselves by tightening the ligature with a stick; or when the ligature was formed of thick and rough material, by simply tying it in a knot." Although it is not necessary to speculate upon the reason why she should wish to commit suicide, it may be mentioned that it was the prosecution case itself that having two young children of her own she was in illicit intimacy with another man, and the intimacy was known. If indeed she had strangulated herself before the appellant came home late at night there would be a ligature round her neck, and, and that would indeed have been a serious situation for the appellant to have found himself in, for the appellant would at once have been suspected of murder of his wife. It would not be improbable that finding himself in this predicament the appellant should wait till the morning and then in the meantime devise (?) a statement which (is ?) or may be untrue. In this state of the record, the possibility of suicide has not been excluded and therefore the case under section 302 or section 201 has not been proved beyond reasonable doubt. I therefore set aside the conviction of the appellant under section 302 P. P: C. and acquit him. A. H. Respondent acquitted.