1990 PLP 1116 (MLD)

7. The case of prosecution hinges upon the following items of evidence:‑‑ (i) Direct testimony consisting of Harif (P. W.1), husband of Mst. Basheeran and brother of appellant. (ii) Corroborative evidence of Gulzar (P. W.2), Arbab (P. W.3), and Mir Khan (P. W.4). (iii) Recovery of hatchet at the instance of appellant, which on examination by Chemical Examiner was found to be stained with human blood. (iv) Motive.

8. The time of incident as disclosed in F. I. R. is morning prayer time. Complainant Harif (P. W.1) has tried to improve this aspect of case in his evidence by stating that it was morning time when this incident took place. Gulzar (P. W.2), Arbab (P. W.3), and Mir Khan (P. W.4) have stated that the incident took place at morning prayer time. It may be noted that the incident took place in the month of November during winter season. Dr. Abdul Ghafoor Dahar (P. W.7) who had conducted the autopsy on the dead body of Mst. Basheeran examined her stomach which contained partly digested little amount of food. The presence of semi‑digested food in the stomach of deceased Mst. Basheeran, when in villages dinner is taken early, indicates that the incident took place somewhere at past mid‑night time. According to Dr. Modi's Textbook of Medical Jurisprudence and Toxicology the time of death can be ascertained from the condition of stomach. At page 139 Dr. Modi states:‑‑ "It has been ascertained by Physiologists that a mixed diet containing more of animal food and less of vegetable food leaves the stomach in four to five hours after it is completely digested, while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion."

9. There are, therefore, reasonable grounds to suspect the words of Harif (P. W.1), Gulzar (P. W.2), Arbab (P. W.3), and Mir Khan (P. W.4) when they state A that the incident took place at morning prayer time, viz., at about 6‑00 A.M.

10. It appears that the learned Additional Sessions Judge was over‑whelmed by the evidence of Harif (P. W.1) real brother of appellant, Gulzar (P. W.2), and Mir Khan (P. W.4) who are also related to him and accepted their evidence on face value without going deeper and discovering the quality or the weight of evidence. He failed to appraise the truth and veracity of the evidence of the above witnesses and .has wrongly contented himself with the bare narration of depositions of witnesses in the body of judgment. It will not be out of place to mention here that both Gulzar and Mir Khan nursed grudge against the appellant which is evident from the following admission made by Harif (P. W.1) in his cross- examination:‑‑ "Hyder was accused about 6 years back in some case in which Miro, Arbab and Gulzar were witnesses. It is correct that Hyder was acquitted from the case:"

11. Quite admittedly there are number of houses situated in village Imam Bux Gopang. Gohar Ali Tapedar (P. W.6) admits that there are 10 or 12 houses in village Imam Bux Gopang. None from those houses except the above witnesses who are members of same family were, however, examined by the prosecution. On the face of the above medical version the evidence of independent witnesses was necessary. The delay in lodging F. I. R. when the police station is hardly 11 K.M. from the WARDAT has also gone unexplained. It appears that this time was consumed in concocting a false story.

12. The learned Additional Sessions Judge has again erroneously brushed aside a significant circumstance on record that no blood was found on the clothes of complainant Harif (P. W. 1) who was sleeping on the same cot with his wife deceased Mst. Basheeran when she was axed to death. The circumstantial evidence on record belies the case of the prosecution and the alleged sequence of 1 events culminating in the commission of the crime appears to be absurd. The I evidence of Arbab (P. W.3) who according to tapedar resided 41 feet away from the place of occurrence cannot be discarded for the simple reason that he was declared hostile. The evidence of such a witness who is admittedly a natural witness has to be examined in its proper perspective. The evidence of this witness appears to be more convincing when he says that he went to the WARDAT and saw the dead body of Mst. Basheeran lying on a cot. He also found complainant Harif (P. W.1) present who did not tell him about the culprit. He was confronted with his 164, Cr. P. C. statement (Exh. 10) but he maintained that the evidence which he gave before the trial Court was correct.

13. On close examination of the evidence of all the above witnesses, I have noticed that they have freely mixed lies with truth. Complainant Harif (P. W.1) stated that the witnesses who were attracted on cries saw the appellant running away from the place of incident with hatchet in his hand. This fact is specifically denied by Arbab (P. W.3). Mir Khan (P. W.4) goes a step further by stating as follows:‑‑ "I heard commotion from the house of complainant. On commotion I went to the house of Harif where I found Hyder armed with a hatchet and he told me that I should not go near him, otherwise he will kill me like Mst. Basheeran. Thereafter the accused ran away towards southern side."

14. There is also conflicting evidence on the point W motive. The F. I. R. shows that the appellant had objected to the visit of Ali Sanghro to the house of Harif (P. W.1) who was suspected to be in toe with deceased Mst. Basheeran. F Harif (P. W.1) when examined in Court took a complete somersault by stating that deceased Mst. Basheeran was killed after declaring her KAKI with one Nazir. It again sounds highly improbable that instead of preventing a vicious scandal by restraining a suspected lover of his wife from entering his house, complainant Harif (P. W.1) would throw out his brother, the present appellant from his house who is not attributed any particular motive for raising false alarm and expressing such unfounded suspicion in his sister‑in‑law (BHAJAI).

15. After discarding the above evidence, there remains the evidence of recovery of blood‑stained hatched at the instance of appellant. Ghulam Rasool Gopang (P. W.9) and Hussain Bux (P. W.10) who have acted as mashirs of recovery have, however, not supported the case of the prosecution. The evidence of Aftab Ahmed S. H. O. (P. W.8) alone is not sufficient to prove this aspect of the case. In my view, it would be wholly unsafe to depend on the testimony of a police officer alone who has a natural desire to get conviction of a person who was sent up by him.

16. For the reasons mentioned above, I am satisfied that the prosecution has failed to prove charge against the appellant beyond any reasonable doubt. The conviction recorded against him is, therefore, set aside and he is acquitted from the charge. The appellant who is in custody be released forthwith, if not required in any other case.

17. The appeal is accordingly accepted. N.H.Q./H‑202/K Appeal accepted.