1. CORNELIUS, J.-This is an appeal by Zarin Khan and Bakht Wali from their conviction for murder and sentences of transporta--tion for life, which have been confirmed on appeal by the Court of the Judicial Commissioner at Peshawar.
2. The murdered man was named Ghulam Jan, and belonged to a village about two hours walking distance from Shahkot where the accused persons live. He was killed in the house of Zarin, which adjoins that of Bakht Wali, uncle to Zarin, on the night of the 7th March 1952. The principal injuries on the body were four contused wounds on the head and chest, three incised wounds on the legs, and four bullet holes through the body. The initial report is said to have been made to the police by Zarin Khan, but the latter was never questioned, on this point and did not himself admit having made the report. However, both accused persons made confessions to a Magistrate accepting responsibility for killing Ghulam Jan whom they said they had taken for a burglar. No other direct evidence was offered in the case.
3. Zarin Khan's statement was as follows:----- "Q.-Did you kill Ghulam Jan son of Hassan Gul, Gujjar deceased of Pattian ?
4. A.-It so happened that on 7th March 1952 at khuftan time I was sleeping in my house when the dog started barking. In the meantime my uncle Bakht Wali came and asked me as to what was the reason for the dog was barking. I got up and beard some rattling sound in my house. I opened the door and my uncle Bakht Wali entered.
5. He was armed with a Henry Martine rifle and I too had a rifle. When we went near the door of the house and opened the door, I lit the torch. We saw that the deceased had broken the receptacle and his head was thrust in it. From behind my uncle fired 5/6 shots at him. I did not fire at him. We both then went out to see that there may not be some-one else outside. Outside I fired 6/7 shots. In the meantime men of the village came to the spot. Then I along with Muhammad Anwar Lambardar went to the Police Station for report."
6. Bakht Wali's statement was as below :-- "Q.-Did you on 7th March 1952 at khuftan time at Tar Mar-cum-Shah Kot murder Ghulam Jan son of Hassan Gul Gujjar of Pattian by firing at him with a rifle?
7. A---Yes. The facts are that I was sleeping in my house when the dog started barking I woke up and went to the door of the house of my nephew Zarin. I knocked at the door and enquiredfrom Zarin as to what was the matter for the dog was barking. He said that he suspected that some-one had entered in the kotha near the bin and was committing theft. When we went up to the door of that kotha and opened the door, the deceased who had a torch with him, lit it. In the light I saw the deceased and no sooner I saw him than I fired six shots at him with Martin Henry rifle. The deceased of wounded and dropped down there. Zarin went to see that there might be some-one else and when he went out, he too fired. Then Zarin left for the Police Station to lodge a report."
8. At the trial, both accused persons adhered to these statements adding, however, that the intruder was armed with an axe and was threatening to attack them with it when the shots were fired by Bakht Wali. An axe was found near the body which was said to belong to the deceased, but examination of the spot showed that in all probability the man had been shot when he was inside the bin mentioned in the confessions, and had been dragged out later.
9. Two explanations were suggested for the presence of the deceased in the vicinty of Zarin Khan's house. The first, by his brother Gul Zaman with whom he used to live, was that when leaving the house, Ghulam Jan said he had been sent for by Zarin Khan to help in the construction of a mosque. The second by Mst. Zewar Jan, widow of Ghulam Jan, was that he was intimate with Mst.
10. Maruf Jan, the mother of Zarin Khan, who had sent for him. One further fact should be mentioned before proceeding to consider the conclusions of the learned Judicial Commissioners. This is that on a bed in the back room where the murder was committed there were found a woman's shalwar and piece of cloth stained with semen. It is said by the investigating Police Officer, but by no one else, that these trousers belonged to Mst. Maruf Jan. This officer, however, also said he found a hole in wall of the room which appeared to have been made from inside the room, suggesting fabrication after the killing of Ghulam Jan. Further, he found a bundle containing clothes and ornaments in a blanket near the body, which might also be similarly explained, and these discoveries . , , . , argue a degree of care inconsistent with failure to remove the trousers, if indeed they furnished an indication of the truth.
11. The learned Judicial Commissioners refused to accept either of the theories advanced by the relatives of Ghulam Jan for his visit to Zarin Khan's house. Their conclusions are stated in the following terms :- "Gul Zaman deposed that on the day preceding the night of the occurrence, he met the deceased, who told him that he was going to Shahkot village, because Zarin Khan accused-appellant had invited him to help him in the construction of a mosque. Mst. Zewar Jan, however, averred that her husband before going to the accused's village had told her that he had been sent for by Mst. Maruf Jan. She also stated that the deceased had a liaison with Zarin Khan accused-appellant's mother.
12. The learned Advocate-General, however conceded quite frankly, and in our opinion very rightly, that both these witnesses could not be relied upon at all.
13. It is not possible for us to believe that the deceased would go in order to meet his lady-love and would tell his wife that he was going at her invitation to her village. If it was known that the deceased had a liaison with Zarin Khan accused-- appellant's mother, it would be absolutely unnatural for the deceased to have accepted Zarin Khan's invitation to go to his village in order to help him in the construction of a mosque. It appears extremely improbable that the deceased would go to that village for the purpose mentioned by him to his brother at about 8 o'clock at night when no mosque could possibly be constructed."
14. At the same time, they declined to accept the defence version that the deceased had been surprised in the act of burglary and killed. Having stated their reasons for this view, they set out their belief as to the true facts in the following terms :- "The finding of a bedding on a charpai in the room in which the murder was committed, the trousers of Mst. Maroof Jan and a piece of militia cloth stained with human semen on the charpal, coupled with the fact that the deceased had a liaison with Mst. Maroof Jan lead us to the irresistible conclusion that the deceased went to the house at the invitation of Mst. Maroof Jan, and in order to commit sexual intercourse with her. Zarin accused-appellant it appears came to know of this state of affairs in the house. He went and informed his uncle Bakht Wali, who lives in a house adjacent to the one occupied by Zarin Khan and his mother. Both of them got themselves armed with village defence rifles, and possibly with sticks and daggers, and went into the room where this ignoble act was being committed. Mst. Maroof Jan appears to have run away after leaving her trousers in the room, while the deceased was either pushed into the Tauni lying close by or he himself had into it. The accused-appellants fired at the deceased in the Tauni, and that explains the blood-stains found on the gunny bags, canvas sheet and the rice lying inside the Tauni. This is also corroborated by the fact that the blood had oozed out of the Tauni, flowing down here and there. The accused-- appellants then seem to have taken the deceased out of the Tauni and put him on the ground closeby, and caused on him the axe and the blunt weapon injuries. That is proved by the fact that there was a trail of blood and rice from the Tauni to the place where the deceased was found lying dead."
15. The plea of grave and sudden provocation being raised, in relation to the belief thus accepted, the learned Judges thought that "as regards the gravity of the provocation, there cannot possibly be two opinions about it", but they found that the assault was preceded by careful preparations which "took the suddenness of the provocation away". They accordingly found the offence to be murder.
16. It has to be pointed out that the conclusions of the learned Judicial Commissioners regarding the facts of the case are, to a great extent, based on no evidence. There was no credible evidence to prove the ownership of the trousers, and the only witness who spoke of a liaison with Mst. Maruf Jan had been held to be wholly unworthy of credit. The movements of Mst. Maruf Jan into or out of the room are based on mere con--jecture. If, indeed, there had been any basis of evidence to support these conclusions, the plea of grave and sudden provocation would have required to be considered most seriously by this Court. But such evidence as there is, both ocular and circumstantial, tends exclusively to support the version that the deceased was taken for a burglar.
17. Any other inference regarding the purpose of his visit must rest to a greater or less extent on speculation.
18. Yet, even restricting the findings of fact to the evidence, it seems that the offence cannot be taken out of the definition of murder. The manner of the killing, by repeated shots with rifles, and blows of blunt and sharp weapons, is in itself sufficient to establish that in volume and degree, the force employed was out of all proportion to the necessity. The possibility of the deceased having threatened the others with his axe is excluded by the discovery that he was shot while still inside the bin, and this is admitted in the confession of Zarin Khan. Having two rifles, the house-holders could have saved their property and even captured the intruder by the use of much less force.
19. It is urged on behalf of the appellants that they live in an isolated group of three houses outside village Shahkot, and that the habitation had recently been visited by dacoits. This is said in explanation of the attack on Ghulam Jan being continued till he died, but it cannot serve to bring the offence within the terms of Exception 2 to section 300, P. P. C. The offence is clearly one of murder, and the sentences of transportation awarded are the minimum sentences prescribed by law. On the view of the case which alone is consistent with the evidence, something may be said in mitigation of the offence on behalf of each appellant, but power to give effect thereto in relation to the sentences vests in authorities other than the Courts.
20. We hereby dismiss this appeal.