SHAMEEM HUSSMN KADRI, J.-Thin judgment will dispose of two appeals (Nos. 173 and 605 of 1970), one filed Sy Khadim Hussain and Allah Ditta and the other by State. Murder Reference No. 88 of 1970 for confirmation of the death sentence of Khadi Hussain is also before us, for disposal.
2. The Additional Sessions Judge, Lyallpur Division at Jhang by his order dated 27th March 1970, sentenced Khadim Hussain to death under section 302, P. P. C. For the murder of Mst. Zohran. For the murder of Ashiq Hussain he has been sentenced to transportation for life. Allah Ditta has been convicted under sections 324 and 326, P. P. C. And sentenced to four months' R. I. And one year's R. I.
With a fine of Rs. 400 or in default of payment of fine to undergo further R. I. For two months. Both the sentences were ordered to run concurrently. The appeal by the State is against Allah Ditta for his conviction under section 324/326, P: P. C.
3. The prosecution story briefly given by Khadim Hussain (P. W. 12), servant of Ashiq Hussain deceased, in the F. I. R. Is that Mst. Zohran was married to Haji Kumhar of Maqsood Pur. She was abducted by Ali son of Khamisa. Her brothers approached Ashiq Hussain, the landlord of Dera Fazil for the return of the girl, who prevailed upon the abductor and procured Mst. Zohran. But instead of returning her to her brothers he kept -her with him and developed illicit intimacy with her.
Ultimately at his instance she filed a suit for dissolution of marriage against Haji Kumbar which was decreed by the Senior Civil Judge. Ashiq Hussain deceased kept her as his wife. This was resented to by the two appellants and their brother Ghulam Ali. They wanted to get her back but their efforts failed. The appellants later started visiting their sister in the house of Ashiq Hussain and persuaded her to get some land in her name from him and unless, he acceded to this demand she should remain with them. The girl accepted the advice of her brothers and started compelling the deceased for the transfer of land in her name. About 14/15 days before the occurrence she got annoyed with Ashiq Hussain an went to the house of her brothers in village Nur Pur.
4. Two/three days prior to the occurrence P. W. Khadim Hussain was sent to Mst. Zohran by the deceased Ashiq Hussain to inform her that he was prepared to transfer one square of land in her name, provided, she returned to him. On this both the., appellants invited the deceased to their village Nur Shah for execution of the deed and taking away of the girl. On the day of occurrence at about 10 a.m. Both the deceased and Khadim Hussain (P. W. 13)- reached the house of the appellants, who were constructing the outer wall of their house. The deceased sat on a cot under the chhappar, Mst. Zohran deceased sat in front of him on the ground. Khadim Hussain appellant gave huqqa to the deceased for smoking. Khadim Hussain (P. W. 12) then came out and stood on the pacca road. Meanwhile a tonga came from Garh Maharaja in which Ghulam Mohammad son of Hayat (P. W. 13) and Ghulam Mohammad son of Hussain Bakhsh were sitting. The latter has not been produced in evidence at the trial. They got down, stood near Khadim Hussain (P. W. 12) and start--ed chatting with him. Ail of a sudden Khadim Hussain accused armed with a hatchet and Allah Ditta armed with kassi attacked Ashiq Hussain. Out of the three injuries on his person one was given, when he fell on the cot, on which he was sitting, by Allah Ditta. Mst. Zohran tried to intervene and Allah Ditta is alleged to have attacked her with a kassi which hit her right hand thumb. The second blow was inflicted on her arm she fell down whereupon Khadim Hussain appellant done her to her blow on the neck.
5. The matter was reported the sate day at about 11-30 a.m. At Police Station Garh Maharaja which is at a distance of tree miles. The F. I. R. Was recorded by Ch. Maratab Ali S. I. (P. W. 14).
6. Dr. Ahmad Saeed (P. W. 1) performed post-mortem examination do the two dead bodies. He found three incised wounds on the person of Ashiq Hussain. As a result of the first injury vertebra was cut through and through over the front of neck. The second and third injuries were on the back of the left side of head and right side of back of neck respectively. Injury No. 1 was dangerous to life, injury No. 2 was grievous and injury No. 3 was declared simple.
The same day at 6-45 a.m. Autopsy was performed on the dead body of Mst. Zohran. There were four incised wounds on her body, one on the front of neck, the other on the left side of front of neck, third on the web between thumb and index finger of right hand and the fourth over the back of left wrist. Injury No. 1 was declared dangerous. Injury No. 4 was grievous and the rest were found simple.
7. Hatchet (Exh. P. 4) was recovered from Khadim Hussain vide memo. Exh. P. C., Kassl (Exh. P. 5) was recovered at the in--stance of Allah Ditta vide Exh. P. H. Loin cloth of Khadim Hussain (Exh. P. 3) was taken into possession vide memo. Exh. P. F. All these articles were found to be stained with human blood by the Serologist.
8. There are two eye-witnesses of the occurrence, namely, Khadim Hussain (P W. 12) and Ghulam Mohammad (P. W. 13), Allah Dad (P. W. 9) and Ghulam Mohammad (P. W. 10) have appeared for the prosecution to depose that a sum of Rs. 200 was demanded by Khadim Hussain accused from the deceased which was paid in their presence. After receiving the money Khadim Hussain appellant is stated to have told Ashiq Hussain that he should transfer some land in the name of his wife Mst. Zohran who should also be brought by him from Basti Nut Shah. This is alleged to have taken place 2/3 days before the occurrence. Mukhtar Hussain (P. W. 11) camel driver has been produced to show that six bags of wheat were sent to appellant Khadim Hussain in two instalments by Ashiq Hussain deceased through him. The wheat was given to him for carriage by Ghulam Minshi of Ashiq Hussain, who has not been produced.
9. Lal Shah (P. W. 8) has deposed that he performed Nikah of the two deceased under the Shia reason. In cross-examination he admitted that the officially recognised Nikah Khawan was Syed Mehtab Shah with whose permission he had performed the Nikah as he had earlier been doing so.
This marriage has not been registered. He did not inform about the solemnization of this marriage either to the Secretary or the Chairman of the Union Council. He also admitted in the cross- examination that he knew Mst. Zohran who was living at Dera Fazil in the house of Ghulam Kumhar.
He, however, denied that he was deposing in favour of the prosecution because he was a neighbour of Ashic Hussain deceased.
10. From perusal of the evidence we are of the view that Ghulam Mohammad eye-witness (P. W. 13), who along with an--other Ghulam Mohammad son of Hussain Bakhsh per chance came at the place of occurrence in a tongs, both just got down when they saw Khadim Hussain P,. W, 12) standing on the road, This P. W. Is alleged to have come to the place to purchase some fruit of palm trees. Both of them have attested the recoveries. Neither the Chowkidar nor the Lamhardar, had- been sent for although this they did on the following day. The learned Addi--tional Sessions Judge has disbelieved the marriage and the accep--tance of Rs. 200 by Khadim Hussain from Ashiq Hussain deceased, but he has fallen into an error in convicting the appellant Khadim Hussain under section 302, P. P. C
11. Khadim Hussain in his statement before the Additional Sessions Judge stated that he had done away with Ashiq Hussain and his sister Mst. Zohran because when he entered the chapper he found Ashiq Hussain bending over the girl who had put her arms round his neck. This he did on account of ghairat by pick--ing a hatchet from the chappar. Khadim Hussain P. W. Was noticed by him. He took to his heels and was persued and over--powered but since he begged for life he spared him. Allah Ditta has denied his presence at the spot. He pleaded that he was living separately from his brother and was in the employment of Joota, On the day of occurrence he had gone to Manta Kas--soana where he came to know that his brother had committed the murders.
He was then arrested and produced before the police.
12. The injuries on the deceased support the defence ver--sion. We do not want to place reliance on the statements of Khadim Hussain and Ghulam Mohammad eye-witnesses. The prosecution has tried to build a case of murder against the appel--lants unsuccessfully. Although the girl was pregnant for 28 weeks duration and there was a female foetus in her uterus but we are not inclined to believe the prosecution story that the appellants hatched a plot to call the deceased in their house so as to do away with him along with their Sister even if she was his mistress. It seems to us that the deceased who had two wife developed a liking for the girl whom he kept in his house an secured a divorce for her, after having gone away to the house o her brothers for whatever reasons, the deceased accompanied by his servant Khadim Hussain went to the house of the appellant and wanted to bring her back to his house. Khadim Hussain surprised them when they were in compromising position It is but natural fort brother to have acted in the manner in which h did, for, it is in evidence that the appellants were living in Maqsood Pur at a short distance from Dera Fazil and they had to shift to village Nur Shah probably for the illicit relations of the deceased with Mst. Zohran. We are of the view that Allah Ditta has been falsely implicated being brother of Khadim Hussain. Disbelieving the prosecution story we accept his appeal and acquit him. The appeal by the State against him is dismissed already on bail. His bail bond shall be discharged.
13. So far as Khadim Hussain is concerned his case falls within the purview of exception I to section 300, P. P. C. We alter his conviction from sections 302 to 304, Part I, P. P.C. And sen--tence him to three years' R. I. For both the murders. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.