SAWAI SHAH Versus STATE

GULBAZ KHAN, J. ‑By this Judgment, we propose to dispose of Murder Reference No. 71 of 1974, and Criminal Appeal No. 274 of 1974, filed by Sawai Shah son of Sardar Shah, caste Syed, aged 35 years, labourer, resident of Basti Rasoolpur, dakhli Rampur. Police Station, Makhdoom Rashid, against his conviction under section 302. P. P. C. and sentence of death recorded by the learned Sessions Judge, Multan on 18th March 1974.

2. On 7th July 1972, about morning time Muhammad Arif P. W. was going towards Chah Dhorewala, Dakali Sultanpur, accompanied by Ghulam Hussain, When he reached at a distance of three killas, he noticed a female person, aged 26/27 years, lying murdered and the neck of the deceased had been cut. Muhammad Arif also found that the deceased had a burqa under the dead body and her shalwar had been removed from her person. He reached Police Station, Makhdoom Rashid and lodged F. I. R . Exh. P. A. Muhammad Amir, A. S. I., reached the spot after recording the F. I. R. He prepared injury statement and inquest report of the, deceased and sent the dead body for post‑mortem examination.. He collected blood stained earth and sealed it into a parcel. He took into possession a pair of shoes of the deceased. No body identified the dead body. Hence its photograph were taken and published in the newspaper. On the second or third day of the autopsy, Muhammad Nawaz father of the deceased came to the mortuary and identified the dead body as that of his daughter Mst. Iqbal Mai. It was found during the investigation that the deceased was married to the appellant three months before the present occurrence and the appellant did not give proper treatment to the deceased. Wazir Shah saw the deceased in the company of the appellant boarding a bus at Octroi Post No. 14, Multan, and getting down at Addabillwala. After three or four days of the said journey, he learnt about the murder of Mst. Iqbal Mai. The accused was alleged to have confessed his guilt before Aslam Shah and Haji Muhammad Rafique. The accused produced blood stained knife P. 10 and it was sealed into a parcel vide memo. Exh. P. F., which was attested by Muhammad Rafique and Muhammad Iqbal. The appellant was challaned after investigation.

3. The prosecution examined eleven witnesses in support of the case.

4. Doctor Altaf Hussain conducted autopsy on the dead body on 8th July 1972, at 6‑00 p.m. and found one incised wound and two abrasions on the person of the deceased. The incised wound w s 8' x 2', trachee, occaphagus, big muscles and vessels of the neck and fourth cervical vertabra cut on the front and left side of the neck. Spinal cord was cut at the fourth cervical level. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of cutting of big blood vessels of the neck and vertebra under injury No. 1. This injury was sufficient to cause death in the ordinary course of nature. It was the result of a sharp‑edged weapon. Injuries Nos. 2 and 3 were caused with blunt weapon. Time between injuries and death was immediate and between death and post-mortem examination about 48 hours. Two vaginal swabs were taken and sent to the Chemical Examiner. The report of the Chemical Examiner Exh. P. J./2 showed that the vaginal swabs were stained with semen,

5. The prosecution case hinges can the circumstantial evidence. Muhammad Niwaz shah (P. W. 5) stated that his daughter Mst. Iqbal Mai deceased told him that the accused had taken her to the grave of his first wife and threatened her that if she did not give her ornaments, he would kill her. According to Muhammad Niwaz Shah, the appellant committed the murder of the deceased for the reason that the former wanted to take away the ornaments of the deceased. In case the appellant had committed the murder, he would have removed the two golden ear‑rings and golden nath from the person of the deceased. The shalwar of the deceased was not found on the person of the deceased when Muhammad Arif noticed the dead body. It had been removed from her person. Burqa was placed underneath the dead body. This picture gives an indication that some body committed sexual intercourse with her at the spot of occurrence. The appellant being the husband of the deceased could not choose that place for committing sexual intercourse. The vaginal swabs were found to be stained with semen and it further strengthened our view that on the spot of occurrence, the deceased was made victim of an assault. Aslam Shah (P. W. 8) stated the appellant, who was his sister's son, came to him at about sunset, and told him that he had killed his wife Mst. lqbal Mai eleven days ago. He further stated that the appellant asked him to produce him before the police, but when he wept inside the house to fetch water the appellant had disappeared. During crops‑examination, he admitted that he demanded the hand of the sister of the accused, but the accused had resisted and on that account, hot words were exchanged between them. In view of said hostility, the appellant could not approach the said witness and make confession. Muhammad Rafique Shah (P. W. 7) stated that the accused came to him in the morning and confessed before him and Iqbal Munshi that twelve days ago, he had killed his wife as the deceased had illicit relations with Jindai Shah. The witness further stated that he produced the appellant before the A. S. I. at the dera of Qayyum. He went on to say that the accused produced blood‑stained knife P. 10 and it was made into a sealed parcel and he attested memo. Exh. P. F. The statements of Haji Muhammad Rafique Shah and Muhammad Aslam Shah regarding the confession of the appellant and the evidence of the recovery of blood‑stained knife at the instance of the appellant, stood belied by the statement of Muhammad Arif (V. W. 6) because the said witness clearly admitted that he reached back the spot after the arrival of the police there. He also stated that Haji Rafique P. W. and others were also present there acid the police brought the accused in custody to the spot on the third day. The F. I. R. was lodged on 7th July 1972. According to Arif P. W., the appellant was brought to the spot on the 9th or 10th of July 1972. Muhammad Amir, A. S. I. (P. W. 10) deposed before the trial Court that Haji Muhammad Rafique P. W. produced the accused before him on 18th July 1972. Adam Shah P. W. stated that the accused told him that he bad murdered his wife eleven days ago. Haji Muhammad Rafique P. W. deposed that the accused confessed before him that he murdered his wife twelve days ago. The statement of Muhammad Arif clearly proved that the appellant was with the police on the 9th or 10th of July 1972. As the appellant was under police custody since 9th/10th July 1972, he could not make the confession before Aslam Shah, on 17th July 1972, and Haji Muhammad Rafique, on 18th July 1972. The evidence of recovery of blood‑stained knife also stands smashed. The evidence of Wazir Shah was of no significance. He appeared in Court on 15th March 1974. He stated that the deceased and the accused were seen by him about l years ago. That period comes to September 1973. Besides he learnt after days of seeing the deceased in the company of the appellant that the deceased bad been murdered. As to where the deceased remained during the intervening period, was not known to any otter person. The appellant denied the prosecution allegations. He stated that seven days before the occurrence, mother of the deceased had taken her daughter away and he did not know as to who killed her. The prosecution was not in possession of any convincing evidence. No implict reliance could be placed on the statements of Haji Muhammad Rafique, Aslam Shah and Wazir Shah P. Ws. The prosecution case was not proved against the appellant beyond doubt. The appellant is entitled to the benefit of doubt. We accept this appeal and acquit the appellant on the charge of murder. He shall be set free forthwith unless wanted in some other case. The sentence of death passed upon Sawai Shah appellant is not confirmed.

Appeal allowed