1. CORNELIUS, C. J.-On a jail petition, the condemned prisoner Faqira was granted special leave to appeal against his conviction for the murder of one Hussaina, to consider whether the evidence on the record was adequate to establish a chain of circumstances sufficiently strong to connect him with the crime beyond reasonable doubt.
2. Hussaina was last seen alive on the 1st October 1964. The date is fixed with certainty, because it was the day before a date of hearing in a theft case against him. His brother Ghulam Hassan gave evidence that Hussaina left their house in village Lal Arain that afternoon, saying he was going to Faqira's place to take him along with himself for the hearing. Faqira appellant lived in village Jajja Abbasian, some two miles away. Hafiz Faiz Muhammad P. W. 12 deposed to having carried Hussaina on his bicycle a part of the way. As they came close to Faqira's house, Hussaina "got down there and went towards the house of accused Faqira". Allah Ditta P. W. 11 saw the deceased on the rear of Faiz Muhammad's bicycle, 'and some days later, when Ghulam Hassan was making enquiries about Hussaina, Allah Ditta gave him this information, which Ghulam Hassan got confirmed from Hafiz Faiz Muhammad. Ghulam Hassan knew that Hussaina was friendly with Faqira, and had been committing crimes along with him and further that Hussaina bad developed intimacy with Faqira's second wife Mst. Faiz Mai. He waited, thinking that Hussaina may have been sent out on a criminal mission some--where. He had ascertained that Hussaina had not appeared in the Court on the 2nd October 1964. On the morning of the 12th October 1964, he learnt from a respectable person, Shah Muhammad that Khuda Bakhsh, a brother of Faqira had come to him and confessed that he, together with Faqira and another brother Allah Bakhsh had killed Hussaina, because of his having seduced Mst. Faiz Mai. Khuda Bakhsh asked the zamindar to save him.
3. Ghulam Hassan forthwith went to Thana Chachran some 9 miles away and made a report setting out these facts.
4. Abdul Qadir Shah, A. S.I., P. W. 26 commenced the investiga--tion and sent for the appellant and his two brothers. And placed them under arrest. The same day, the dead body of Faqira was dug out from the bed of a watercourse at a place pointed out by Allah Bakhsh, who also on the following day in the presence of S. I., Muhammad Ali P. W. 27, dug out the blade of a hatchet from a place near their house. Faqira dug out from another place, the shirt and shoes which the deceased was wearing when he left his house. These were identified by Ghulam Hassan, as well as by their makers Manzur Ahmad tailor P. W. 9 and Ghulam Qadir mochi P. W.
10. The third brother Khuda Bakhsh produced a Kassi which had been used for digging the grave, and showed also the place where Hussaina was killed, where earth, leaves, bricks, etc. Stained with blood were found. The post- mortem examination slowed that death was caused by three heavy blows of a sharp-- edged weapon on the face and neck, and there was also a cut on the left arm.
5. The prosecution led the evidence, as an eye-witness to the murder, of one Khair Muhammad P. W.
6. 13, whom the trial Judge rightly regarded as untrustworthy. His evidence was also discarded by the High Court, in their appellate judgment. Some evidence was also led to prove that Mst. Faiz Mai had been beaten and turned out of the house of Faqira on the evening of the 1st October 1964, and was given shelter for a time at the house of Zahur Ahmad P. W. 17 and Manzur Ahmad P. W. 18, but on the same night, through the agency of Jam Allah Bakhsh lambardar P.W. 25, she was handed back to Allah Bakhsh, brother of Faqira. She was said to be asking the way to the house of Hussaina. The trial Judge thought the story was "not probable", and preferred not to rely on it, although it was supported by Jam Allah Bakhsh P. W. 25, on whom he placed full reliance on other important points of evidence. In the High Court, the learned Judges agreed with the trial Judge in disbelieving this story, which they set out in the following words:-- "the incident of Mst. Faiz Mai having left the house of her husband, Faqira appellant, which a view to join her paramour, Hussaina deceased, was merely a cock-and-bull story inspiring no confidence whatsoever, and meriting straightway rejection."
7. If they had considered the possibility that after Hussaina had been killed, the woman was beaten and turned out of the house, and told to go to Hussaina, which was natural enough, since the learned Judges held that Faqira was proved to have killed Hussaina, because of his having an intrigue with Mst. Faiz Mai, they may well have taken a different view of this story. For, in the High Court also Jam Allah Bakhsh was regarded as a reliable witness on other important points.
8. Apart from the extra judicial confession of Khuda Bakhsh, proved by Shah Muhammad, the evidence of Ghulam Hassan, the proof that Hussatna was dropped at Faqira's house by Hafiz Faiz Muhammad on the evening of the 1st October and the recovery of the clothes and shoes of the deceased at the instance of Faqira, a the Courts below have also relied on the evidence given in the committing Court and proved at the trial under section 288, Cr. P. C., of one Ramzan, who was a co-accused with Hussaina in the theft case aforesaid, to the effect that, at the instance of Faqira, he submitted to the Court on the 2nd October 1964, an application Exh. P M./2, of which a certified copy is Exh. P.W. 26/1 saying that Hussaina could not appear because he was detained by the Criminal Investigation Agency for inquiries. Faqira and Allah Bakhsh were themselves detained by the C. I. A. When on the early morning of the 2nd October 1964, Faqira gave him this instruction.
9. Ramzan was cross-examined at length before commit--ting Court. His evidence was accepted by the trial Judge, as well as by the High Court, despite the admissions he made of being habituated to theft.
10. The trial Judge convicted all the three accused persons namely Faqira and his two brothers under section 302/34, P. P. C. And sentenced Faqira and Allah Bakhsh to death, and Khuda Bakhsh to transportation for life. In the High Court, Allah Bakhsh's conviction was altered to section 201, P. P. C.
11. But the convictions and sentences of the other two were maintained. Of -them, only Faqira has moved this Court in further appeal.
12. Mr. Jeremy, arguing on behalf of Faqira, urged that the mere statement of Ghulam Hassan should not have been accepted in proof of Hussaina's intimacy with Mst. Faiz Mai. As indicated above, support for this allegation can be found in the evidence ,showing the movements of Mst. Faiz Mai on the night of the 1st-2nd October 1964. Learned counsel urged that Khuda Bakhsh's extra judicial confession, as reported by Shah Muhammad did not specifically mention Faqira as one of the murderers, though he did say that "they" had killed Hussaina. At the trial, Shah Muhammad said all three brothers had been named as having done the deed, but in his police statement, "they" was the word used. The point is of no great importance, for the complicity of the three brothers in this crime seems plain, and the cause being "ghairat" connected with Faqira's wife, it is natural to infer that he took a full part in the deed. Mr. Jeremy suggested also that because, according to Ramzan, Faqira and ,Allah Bakhsh were held by the C. I. A., it should be presumed that Faqira was in detention during the previous day as well. Faqira, in his statement at the trial said he was in detention "on the night of the alleged incident", with the C. I. A., and that in his presence, Ramzan who was also there, was asked by a co---accused of his Haidar by name, to make the application to explain Hussaina's absence. No question was put to Ramzan in cross---examination on this point, and it is significant that the latter explanation was not given by Faqira, in his statement made to the committing Court. As to the alibi, Khuda Bakhsh accused in his statements before the committing Court and the Sessions Court, said he and Faqira had been under detention of the C. I.
13. A., for 15 days before the relevant date. These allegations could have been verified by calling in evidence officials of the C. I. A., but no evidence was produced to defence. It seems likely that Faqira and Khuda Bakhsh presented themselves before the C. I. A. On the morning of 2nd October 1964 of their own accord, to establish an .Alibi. Faqira's statement at the trial was that he and his brother were with C. I. A. Police Mr. Ghulam Muhammad who wanted our help to arrest thieves by nakabandi". It could seem that they were not in fact under detention, but being habitual criminals, were volunteering assistance in catching other criminals.
14. There was, in our view, sufficient evidence of a circumstantial nature to prove beyond reasonable doubt that Faqira participated in the murder of Hussaina and in the disposal of the body, along) with his brothers. The question is raised that the sentence of death is net justified in his case, when it was not imposed on his brother Khuda Bakhsh, who is held to have joined in the killing. The reason given for the lesser sentence to Khuda Bakhsh is that he was the youngest of the three. His age is given as 25 years, which is a full age for responsibility. Faqira was the eldest at 40, butt it is also established that he acted out of ghairat, through Hussaina having assailed the chastity of his wife, Mst. Faiz Mai, by seducing her. Hussaina was also a close associate and friend or Faqira, who had therefore an additional reason to resent his misconduct. They were all criminals by profession, but that does not disentitle them from preserving a sense of honour in respect of their womenfolk.
15. Both for. This reason, and also to maintain equality of punishment as between Faqira and Khuda Bakhsh who are held to have taken an equal part in the murder, we allow this appeal to the extent that we reduce the sentence to transportation for life, while confirming the conviction under section 302/34, P. P. C.