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Petitioner: YAQOOB VS Respondent: THE STATEHonorable Justice Abdul HamidM. H. Junejo,Murtaza Hussain for A. A.-G.
1969 P Cr
1969 P Cr. L J 1364
[Karachi]
Before Abdul Hamid, J
YAQOOB‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 125 of 1965, decided on 27th July 1967.
Penal Code (XLV of 1860), S. 302‑Murder‑Prosecution story resting on testimony of two eye‑witnesses closely related to deceased‑Prosecution producing no other independent evidence-- Medical evidence not supporting so‑called eye‑witnesses on point of time of occurrence and number of injuries sustained by deceased --Accused, held, involved on mere suspicion, in circumstances, and acquitted.
M. H. Junejo for Appellant.
Murtaza Hussain for A. A.‑G. for the State.
Date of hearing : 27th July 1967.
JUDGMENT
Yaqub, aged 25 years, has been tried under section 302, P. P. C. for having committed the murder of Mst. Rahiman, aged 60, on the night between 25th and 26th August 1964, by inflicting injuries on her with a hatchet, in village Sahib Jurio (Taluka Hala) situate at a distance of two miles from Police Station Saidabad, District Hyderabad. By his order dated the 27th of February 1965, the learned II Addl. Sessions Judge, Hyderabad, found him guilty of the offence and as such sentenced him to transportation for life. The convict appeals against his conviction and sentence.
2. The facts of the prosecution case are short and may be stated as these : Mst. Mirzadi P. W. was married to the appellant. The couple, however, did not pull on amicably with the result that Mst. Mirzadi deserted her husband and started residing with Muhammad P. W. with whom she con tracted a liaison. On the promulgation of Martial Law, Mst. Mirzadi P. W. was restored to her husband. She, however, again left her husband's house and started living with her paramour, namely, Muhammad. This was resented by the appellant and is deposed to as having formed motive for the present occurrence.
3. On the fateful night, Muhammad and his mother, Mst. Rahiman, deceased were sleeping in the courtyard of their house on separate cots. On that night, Mst. Mirzadi had gone to the house of Rahimdino, who is married to the sister of Muhammad P. W. as the former's wife was in disposed. Sometime after midnight, h.2uhammad was awakened on hearing the cries raised by his mother, namely, Mst. Rahiman. On getting up he saw the appellant giving hatchet blows on her neck etc. Muhammad P. W. tried to save his mother from the onslaught but the appellant threatened him with dire consequences. At the alarm raised by him, Moulo dino (not produced) and Rahimdino P. W. reached the scene of the crime and actually saw the culprit giving hatchet blows to the deceased. Suleman also was attracted to the spot on hearing cries and while rushing towards the house of Muhammad P. W. he saw the appellant jumping over the thorny fence with a hatchet in his hand. On being challenged, the appellant told him that he had killed Mst. Rahiman in retaliation. In the meantime, Khair Muhammad P. W. 6 and Mirzadi P. W. 7 arrived and they were informed by Muhammad P. W. that the appellant had decamped after committing the murder of his mother. At this stage it may be mentioned that Mst. Rahiman died instantaneously on receipt of the injuries.
4. Leaving Rahimdino P. W. and others to guard the dead body, Muhammad P. W. proceeded towards Police Station Saidabad, situate at a distanc3 of two miles from the wardat where he reached at 5 p.m. and lodged the report Exh. 8. The names of Khair Muhammad and Mirzadi P. Ws. however, were not mentioned in the F. I. R. as having arrived at the scene of the crime. After scribing the report, Nizam Din S. H. O. reached the place of occurrence, and after pre paring the inquest report and the injury statement of Mst. Rahiman deceased despatched her dead body to the mortuary for post‑mortem examination.
5. The autopsy on the dead body of Mst. Rahiman deceased was conducted by Dr. Ghulam Kadir, Medical Officer, Matiari Civil Dispensary, on 26‑8‑64 and the folio wing injuries were found thereon:‑
(1) An incised wound, measuring 7' x 2" x meninges deep, brain, 2" x 1/2" x 1" found cut beneath it. The injury was semilunar shaped on the right temporal region to mid‑parietal region cutting the right frontal bone.
(2) An incised wound, 4" x 3" x 2", at the lower end of the neck anteriorly up to middle of neck left laterally, cutting tracheae, oesophagus common carotid artery and left sternomystoid muscle.
(3) Two linear incisions each, 1" x linear x linear x 1/10", 3/4" below and parallel to injury No. 2.
(4) An incised wound 4 x 1 " x 3", on the thorasic region, cutting 4th, 5th and 6th left ribs and 2 " x " x 1", left lung.
(5) An incised wound 3" x 1 " x 1/3", cutting the under neath structures on the right forearm on its lower half, anteriorly.
(6) An incised wound 2 " x 1" x 1/3", on the right knee, laterally.
In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 1, 2 and 3. The doctor further stated that injuries Nos. 1, 2 and 3 were individually sufficient in the ordinary course of nature to cause death. He added that all the injuries had been caused with a sharp‑cutting weapon such as hatchet.
Lastly, the doctor found that the stomach of the deceased contained semi‑digested food.
The appellant was arrested on the 16th of September 1964. Nothing incriminating was found from his possession.
6. The appellant pleaded not guilty to the charge. He further stated that he had been falsely implicated in the case. He, however, produced no defence.
7. At the trial, the case of the prosecution, as detailed above, was supported by Muhammad P. W. and his sister's husband, namely, Rahimdino P. W. Both of them unanimoulsy stated that they had seen the appellant giving hatchet blows to Mst. Rahiman deceased resulting in her instantaneous death. Suleman P. W. who is also a distant relation of Muhammad P. W., deposed having seen the appellant immedi ately after the occurrence carrying a hatchet. Muhammad P. W. however, did not mention in the F. I. R. that Khair Muhammad and Mst. Mirzadi P. W. had arrived at the spot shortly after the occurrence and that they were informed that it was the appellant who had committed the murder. Briefly stated, the case of the prosecution is based on the ocular evidence fur nished by the two witnesses referred to above.
8. It is common ground between the parties that the occurrence took place on a moonlit night. The case of the prosecution was that the appellant killed Mst. Rahiman under a mistaken notion that she was his wife Mirzadi, who was carrying on illicit intimacy with Muhammad P. W. Consider ing that it was a moonlit night, it is difficult to believe that he killed the deceased by mistake. Apart, from this, I find that in the F. I. R. as also subsequently at the trial, Muhammad P. W. stated that the appellant had off and on threatened him with dire consequences because he was keeping his (ap pellant's) wife as a mistress. Muhammad P. W. was sleeping close to his mother Mst. Rahiman deceased. There is no plausible reason why the appellant did not commit the murder of Muhammad P. W. who was carrying on with his wife for the last five or six years, and instead committed the murder of his mother.
9. Further, I find that Muhammad P. W. mentioned in the F. I. R. that the appellant had inflicted two or three injuries with a hatchet on the deceased. As against this, the medical evidence shows that the deceased had sustained seven injuries with a sharp‑cutting weapon. The only inference therefore is that Muhammad P. W. had not seen the appellant actually committing the murder of the deceased.
10. The doctor also found semi‑digested food in the stomach of the deceased. According to the High Court Calendar the sun had set at 6‑35 p.m. on the alleged day of the occurrence. Assuming that the deceased had taken her meals within one hour after sun‑set, then the semi‑digested food could not have been found in her stomach at the time of the post‑mortem examination. It is not disputed that ordinarily food is completely digested within five to six hours. In the present case, the murder is alleged to have taken place after midnight. Considering that semi‑digested food was found in the stomach of the deceased, the inevitable inference is that Mst. Rahiman was killed at about 10 p.m. It is, therefore, apparent that she was killed by someone and later when the murder was detected the appellant was involved on mere suspicion. Needless to add that no independent witness was produced in this case. There being no corroboration of the statement of the eye‑witnesses who are closely related to the deceased, it would not be safe to uphold the conviction of the appellant under section 302 of the Pakistan Penal Code.
11. For the reasons stated above, I accept the appeal and giving the appellant benefit of doubt acquit him of the charge. He shall be released from jail forthwith provided always that he is not required to be detained in connection with any other case.
Appeal accepted.