Saad Saud Jan, J.--The appellants Nehalu and Sewa were convicted by the learned Sessions Judge at Dera Ghazi Khan for offences under section 302, read with section 34, P. P. C. for the double murder of Allah Bakhsh and Mst. Fatima and in respect of each murder they were sentenced to transportation for life. The two sentences were, however, directed to run concurrently. The appellants have filed separate appeals, bearing Nos. 837 and 829 of 1968, through jail against their conviction and sentences.
2. Nehalu appellant was the husband and Sewa appellant was an uncle of Mst. Fatima deceased.
The two appellants were also stated to be cousins in the second degree. The occurrence took place on the early afternoon of 18-11-1967 in the waste land in village Dhandla at a distance of 3/4 miles from the main abadi. There were a large number of karin bushes three to four feet high near the place of occurrence. It was stated by the prosecution that Allah Bakhsh deceased had gone to the waste land to graze his flock of goats and sheep. Mst. Fatima deceased was also present there to collect some firewood. The appellants who had been suspecting Allah Bakhsh and Mst. Fatima of having an affair for some time past came there with hatchets and killed them on the spot. The gruesome tragedy was witnessed by Muhammad Hussain (P. W. 8) and Akbar (P. W. 9) who were passing by the scene of occurrence on their way to the village Dajal. After the occurrence Muhammad Hussain (P. W. 8) reported the incident to Mehr Bakhsh (P. W. 7) a brother of Allah Bakhsh deceased. Mehr Bakhsh (P. W. 7) immediately proceeded to the spot and after seeing the two dead bodies went to Police Station Dajal where he made a report at 3 p.m. The police station was at a distance of three miles from the spot.
3. The post-mortem examinations of Allah Bakhsh and Mst. Fatima were performed by Dr. Khurshid Ahmad, Medical Officer, Jampur. Allah Bakhsh had four incised wound in the region of neck, head and face which had led to the fracture of the occipital bone and the severing of the right mandible bone, the vertebral column and the spinal cord. The injuries had been inflicted by sharp-edged weapons and one of them was sufficient in the ordinary course of nature to cause death. Mst.
Fatima had eight incised wounds on her body located on the head, neck, shoulders and hands. On dissection the parietal bone, membrances of the brain, vertibral column and spinal cord were found to have been cut. All the injuries had been caused by sharp-edged weapons and two of them were sufficient individually, in the ordinary course of nature to cause death. Her vaginal swa bs were also taken by the doctor and they were later reported by the Chemical Examiner to be stained with semen.
4. On 19-11-1967 Ghulam Nabi (P.W. 6) produced the two appellants before Sub-Inspector, Shabhir Hussain (P. W. 10). The shirt and two chadars on the person of Nehalu appellants were stained with blood. Similarly, the shirt and chadar worn by Sewa appellant were also stained with blood. The two appellants also presented their blood-stained hatchets to the Sub-Inspector at the time of their arrest. All these articles were taken into possession by the Sub-Inspector in the presence of Malik Qadir Bakhsh (P. VV. 5) and Ghulain Nabi (P. W. 6). The reports $ewa of the Chemical Examiner and the Serologist show that the g'tatt clothes and the hatchets recovered from the appellants were_____________ stained with human blood. SaadSaud
5. The appellants pleaded not guilty at the trial and denied Jan'} that they had been responsible for killing Allah Bakhsh and Mst. Fatima. Nehalu admitted that Mst. Fatima was his wife but refuted the allegation that he suspected her of having illicit relations with Allah Bakhsh. Both the appellants denied that they were related to each other. They did not lead any evidence in defence.
6. After perusing the evidence on record and hearing the learned counsel for the State and Sewa appellant who appeared in person we are left in no doubt that both the appellants were responsible for causing the deaths of Allah Bakhsh and Mst. Fatima. Muhammad Hussain (P. W. 8) and Akbar (P. W. 9) who saw the appellants attacking Allah Bakhsh and Mst. Fatima are entirely independent and disinterested witnesses. They have stated that at the time of the occurrence they were proceeding to Dajal for settling the accounts of a deal relating to the sale of bricks. Even though their presence at the spot was by chance yet this circumstance by itself is insufficient to discredit their testimony. They had no enmity with the appellants and there was no reason why they should have chosen to become false witnesses. The presence of Muhammad Hussain at the spot receives confirmation from the fact that he was the first person to report the occurrence to the brother of Allah Bakhsh deceased. Apart from the ocular evidence the case against the appellants receives support from circumstantial evidence.
At the time of their arrest both the appellants were wearing blood-stained clothes and were in possession of blood-stained hatchets. Ghulam Nabi (P. W. 6) and Qadir Bakhsh (P. W. 5) who deposed about the said recoveries are lambardars of the area and had no motive whatsoever to become party to the fabrication of evidence against the appellants. The clothes and the hatchets were stained with human blood as the reports of the-Chemical Examiner and the Serologist show.
We, therefore, hold that both the appellants had taken part in the two killings.
7. We are in agreement with the finding of the learned Sessions Judge that Allah Bakhsh and Mst.
Fatima had gone to the waste land for amorous purposes. The allegation of the prosecution that Allah Bakshah was there merely to graze his flock of goats and sheep does not find any support from the record. Sub-Inspector Syed Shabhir Hussain (P. W. 10) did not find any goats or sheep at the place of occurrence. Although Mehr Bakhsh (P. W. 7) alleged that Muhammad Hussain (P. W. 8) had brought the goats and sheep to him after the occurrence was over. Muhammad Hussain (P. W.
8) on his part denied that he had done any such thing. It is, therefore, difficult to accept that Allah Bakhsh was present in the waste land in connection with his usual occupation.
8. The detection of semen on the vaginal swabs taken from the body of Mst. Fatima does not by itself lead to the inference that she had had sexual intercourse with Allah Bakhsh just prior to the occurrence as she was a married woman and was living with her husband in the village. However, the possibility cannot be precluded that the two appellants might have seen her and Allah Bakhsh in a compromising position shortly before they killed them. The eye-witnesses, Muhammad Hussain (P. W. 8) and Akbar (P. W. 9), reached the> spot at the time when the assault on Allah Bakhsh and Mst. Fatima had already begun and as such they were not in a position to depose about the immediate cause of the attack. However, taking into account the fact that the appellants did not spare Mst. Fatima who was married to one of them und was a niece of the other and also the savagery exhibited by them in the act of killing it seems that the provocation to the appellants had proceeded from both the dead persons. This circumstance tends to confirm the possibility that they had seen the two deceased acting in a highly reprehensible manner.
9. The learned Sessions Judge was of the view that the two appellants already knew that Allah Bakhsh and Mst. Fatima had a rendezvous in the waste land and as such they could not be regarded to have committed the murders under 'sudden' provocation. In support of his view he placed reliance upon Mehra Mistak v. Emperor (1), where the deceased had already received information through his mistress that his sister was going to meet the deceased in a secluded place and had gone to the spot with the express intention of murdering the deceased if he found him with his sister. We, however, do not iind any evidence on the record which may indicate that the appellants had prior knowledge that Allah Bakhsh and Mst. Fatima were to get together in the waste land in furtherance of their illicit relations. On the other hand, the case of the prosecution itself in the F. I. R. was that the appellants saw the two dead persons at the scene of crime only by chance. It also appears from the cross-examination of Muhammad Hussain (P. W. 8) that at the relevant time a herd of the appellants was grazing in the vicinity of the spot. Had the appellants gone to the waste land with the sole purpose of killing the two lovers it is unlikely that they would have taken their goats and sheep with them. We are, therefore, unable to agree with the learned Sessions Judge that the two appellants had visited the scene of occurrence with the express object of killing Allah Bakhsh and Mst. Fatima and the authority cited by him in support of his view is easily distinguishable on facts.
10. Even though the appellants have not expressly taken the plea of grave and sudden provocation we are of the opinion that there are circumstances in the case which show that they might have killed Allah Bakhsh and Mst. Fatima under grave and sudden provocation. This will bring their case within the ambit of Exception in section 300, P. P. C. We, therefore, give them the benefit of doubt and alter their convictions to section 304, Part I read with section 34, P. P. C. under both counts. [12] They have been under detention for about four years now. We consider that they have already suffered enough and the ends of justice will be fully satisfied if their sentences are reduced to the period of imprisonment undergone by them till now. We and direct that they shall be set at liberty forthwith if not required in any other case. The appellants are present in person and they have been informed of the result of their appeals. .