SAAD SAOOD JAN, J.-The appellants, Yara (aged: 35 years) and Zafar aged : 28 years), were convicted by an Additional Sessions Judge at Gujranwala of an offence under section 302, read with section 34 of the Pakistan Penal Code for causing the death of Bashir Ahmed deceased. For the said offence they were both sentenced to death and asked to pay fines of Rs. 5,000 each or, in default thereof, to receive rigorous imprisonment for a period of five years. They have filed-a joint appeal against their convictions and sentences. The learned Additional Sessions Judge has made a reference to this Court for the confirmation of the sentences of death awarded to them. This judgment will dispose of both the matters.
2. Yara appellant is married to a sister of Zafar appellant. The deceased was married to Mst. Sakina, daughter of Sardar Muhammad (P.W. 5). Mst. Halima younger sister of Mst. Sakina, is married to Zafar appellant and by way of watta-satta Mst. Bilqis, a sister of Zafar appellant and sister-in-law of Yara appellant, is married to Muhammad, brother of Mst. Halima and son of Sardar Muhammad (P.W. 5).
3. It was alleged by the prosecution that Mst. Bilqis developed illicit intimacy with Yara appellant and for that reason she left the house of her husband Mohammad in Baleki Nau and moved to her parents' house in Maulu Chak where Yara also resided with his wife. About a month prior to the occurrence, Mohammad went to Maulu Chak and after great difficulty persuaded her to return to his house. About four or five days before the occurrence Mst. Aisha, a sister of Mst. Bilqis, visited Mohammad's house with the object of taking Mst. Bilqis back to Maulu Chak. Muhammad and his father Sardar Muhammad (P. W. 5) refused to let Mst. Aisha take Mst. Bilqis away with her. However, Mst. Bilqis insisted that she would go with her sister to her parents house. Accordingly, on the following morning, much against the wishes of Muhammad and his family, both Mst. Bilqis and Mst.
Aisha left for Mauhi Chak. A short while later, Sardar Muhammad (P. W. 5) sent the deceased after them to bring back Mst. Bilqis. The deceased met the two women in village Khanpur and stopped Mst. Bilqis from going to her husbands house. Mst. Bilqis gave him a slap. Upon this, the deceased gave a good beating to her and forced the two women to return to Baleki Nau, saying that he would not allow Mst. Bilqis to go to Maulu Chak unless Mst. Halima, who was married to Zafar by way of watta-satta, also returned to her parents' house. On the following day the deceased went to Maulu Chak and brought back Mst. Halima. Thereafter Mst. Bilqis and Mst. Aisha were permitted to leave for Maulu Chak. Apparently, on reaching their house, the two women informed the appellants about the beating and humiliation suffered by them at the hands of the deceased.
4. About two days later, that is, on 13th July. 1975, at morning prayer time, the deceased was sleeping in his haveli where his cattle were tethered. The two appellants came there. Yara was armed with a hatchet while Zafar was carrying a dang. Immediately on arrival at the haveli, the two appellants started assaulting the deceased with their respective weapons. The deceased raised an alarm. Sardar Muhammad (P.W. 5) and his son Muhammad Hanif(P.W. 6) were sleeping in the conti--guous haveli. On hearing the alarm, they rushed to the haveli of the deceased. They saw the attack upon the deceased. When they tried to intervene, the appellants asked them to stay away.
Otherwise they would meet the same fate. Sardar Muhammad (P W. 5) and Muhammad Hanif (P.W. 6) also raised an alarm, upon which the two appellants ran away with their respective weapons
5. Shortly after the occurrence a large crowd gathered at the spot. The deceased was unconscious and bleeding. He was put on a cot and taken to the civil hospital at Hafizabad. He died on the way to the hospital. After the death of the deceased, Sardar Muhammad (P.W. 5) went to Police Station Vanika Tarar, which was ten miles from his village. . He reached there at 11.30 a.m. And lodged the report Exh. P.G.
6. The case was mainly investigated by S. I. Bashir Ahmad (P.W. 9).-- Hearrested Zafar on 14th July, 1975 and Yara on 15th July, 1975. Immediately after his arrest, Yara led a police party headed by S. I.
Bashir Ahmad (P.W. 9) to the cattle-shed of his father-in-law in Maulu Chak and from there produced a blood-stained hatchet. This recovery was allegedly witnessed by Inayat and Manzoor also but they were not examined at the trial on the ground that they had been won over by the defence. The hatchet was subsequently sent to the Chemical Examiner and the Serologist.
According to their reports, the blood on it was of human origin.
7. The post-mortem examination of the deceased was performed by Dr. Mohammad Sadiq Chaudhary, who was posted as medical officer is the civil hospital at Hafizabad. The deceased had thirteen injuries in all. Except for two, which were abrasions, he had eleven incised wounds on his body. Almost all the injuries were on the face. Two of the injuries on the forehead were sufficient in the ordinary course of nature to cause death. According to the doctor, the deceased had died after an hour of the assault on his body.
8. The appellants pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased. They alleged that somebody bad killed the deceased at night and that they had been falsely implicated. They did not lead any evi--dence in their defence.
9. At the trial, the ocular account of the occurrence was furnished by Sardar Muhammad (P. W. 5) and his son Muhammad Hanif (P. W. 6). As already mentioned, the deceased was married to a daughter of Sardar Muhammad (P. W. 5). Both these witnesses stated that at the relevant time they were sleeping in their haveli, which was contiguous to that of the deceased. In the morning, at prayer time, they heard the cries of the deceased. When they went to the haveli of the deceased they saw the two appellants attacking the deceased with a hatchet and a dang.
10. There can be little doubt that the deceased was killed in his own haveli. The haveli of the two eye-witnesses is contiguous to the haveli of the deceased and only a wall separates the two. It is not unusual for cultivators, as the two eye-witnesses were, to spend their summer nights at their havelies in order to look after their cattle. Therefore, the presence of the two eye-witnesses at the scene of occurrence was not unnatural. No doubt there were some disputes between Sardar Mohammad (P.W. 5), on the one band, and the appellants' families on the other, over matrimonial matters, but these were not of so serious a nature as to furnish sufficient inducement to the eye- witnesses to falsely accuse the appellants of the murder of the deceased. We should, therefore, think that we can safely rely upon their testimony for holding that it were the appellants who were responsible for causing the death of the deceased.
11. The prosecution examined Ali (P.W. 7) to support the ocular testimony. The behek of this witness was 3 or 4 acres away from the spot According to him, he had heard the cries of the two eye- witnesses. As he rushed to the scene of occurrence, he saw the two appellants running away with their weapons. It is to be observed that he is a nephew and tenant of Sardar Mohammad (P.W. 5).
His evidence can therefore hardly be placed at a higher pedestal than that of the two eye- witnesses.
12. There is little merit in the defence plea that the occurrence possibly took place at night and had remained unwitnessed. There is no support for it in the evidence and is based entirely upon conjectures. True, the deceased had strained relations with some other persons also, but then, it is highly improbable that the eye-witnesses would have let off the real culprits and instead falsely implicated the appellants, particularly when both parties were linked with ties of marriages with each other Evidence is also lacking on the point that the eye-witnesses had a soft corner for the other persons whose relations with the deceased were strained.
13. On the basis of the ocular testimony, we are satisfied that the appellants were responsible for causing the death of the deceased. They were, therefore, rightly convicted by the learned Additional Sessions Judge of an offence under section 302, read with section 34 of the Pakistan Penal Code. The question of the sentence however requires serious consideration. It is the case of the prosecution itself that two days before the occurrence, the deceased had assaulted and insulted Mst. Bilqis and her sister Mst. Aisha as they were on their way to Mauiu Chak. Apart from that, the deceased had forced the wife of Zafar appellant to return to her parents' house and thus without any fault on his part, broken up the latter's family. Thus the provocation to attack him had emanated from the deceased himself. In the circumstances, we are reluctant to confirm that sentence of death imposed upon the appellants by the trial Court. Accordingly, we would set aside the sentences of death and instead direct that they shall suffer imprisonment for life. The sentences of fine do not require any interference.
14. The appeal is disposed of in the above terms and the reference made by the learned Additional Sessions Judge is rejected.