1. Mukhtar, aged 35 years, and his brother Sharif, aged 20 years, were convicted under section 302/34, P. P. C., and sentenced to transportation for life each by learned Additional Sessions Judge, Sahiwal vide judgment dated 13-3-1969; for the murder of Mst. Irshad their sister's daughter, aged 16 years. Mukhtar has filed Criminal Appeal No. 371 of 1969 through jail. Sharif, as ascertained by the office, has not been able to file an appeal but has expressed, through the Superintendent of Jail, his desire to challenge his conviction and sentence. As no formal appeal on his behalf has been presented and convictions and sentences of both the brothers arise out of the same matter which I have to decide on Criminal Appeal filed by Mukhtar, therefore I consider it proper in the interest of justice to examine the legality and propriety of the conviction and sentence of Sharif by way of Suo Motu Revision (No. 599 of 1972). Both the matters are being disposed of together.
2. The prosecution case is that on 15-2-1968 at about 1-00 in the afternoon, in the area of Chak Rajowal, Police Station Hujra, District Sahiwal, Muhammad Saeed P. W (the first informant) who is a member of the Mujahid Force of the locality, heard an alarm and saw Mst. Irshad deceased being held by her arms by Mukhtar appellant while Sharif was giving her blows with a hatchet. He rushed to the spot. Dr. Bashir P. W. Another Bashir (not examin--ed), Muhammad alias Muhammad Ali and Fazil Din P. Ws, also reached the spot and saw the occurrence. The accused were challenged by the witnesses not to do any more harm to the girl but Sharif threatened with his hatchet saying that if any one came near them he would not spare hint. On this, Saeed P. W. Who was carrying a gun pointer it towards the accused and told them that he would kill both of them and further that they should not run away. On this, Sharif threw the hatchet. Fazal Din picked it up. The witnesses then apprehended the accused. They found that Mst. Irshad had already died. When they questioned the accused as to why they had killed her, Mukhtar replied that "she was their sister's daughter.
3. When they were living in village Kitan she had eloped with one Muhammad Ali and that she was restored to them only one day earlier and was again going to Muhammad Ali and so they had killed her". It may be mentioned here that the accused and their family including the mother of the deceased had shifted to village Rajowal a couple of months before the occurrence, so as to escape from the insult done to them by aforementioned Muhammad Ali by enticing away their niece. And they were not very well known in the village of their new abode. Saeed did not know their names prior to this occurrence. He made inquiries in this behalf also from them. Leaving the accused with the other witnesses, Saeed went to Police Station Hujra eight miles away and lodged the report (Exh. PH) at 2.30 p.m. On arrival of the police, both the accused with hatchet (P.2) were produced before them. After their arrest, their clothes (P. 3 to P. 6) which were subsequently found to have been stained with human blood were taken into possession. The learned trial Judge considered the arguments advanced against the recovery of the clothes. He did not accept them on the assumption that even if they had some force, he was of the view that other evidence was sufficient for conviction, I have no reason to disagree with him in so far as the other evidence is concerned. However, on the question of recovery also after having given cogent reasons for repelling the arguments advanced by the defence, I see no reason why these recoveries should not have been used against the accused. The autopsy revealed that there were four injuries on the person of the deceased. All of them were caused with sharp-- edged weapon. Stomach contained about 3 ounces of semi-digested food. The time of death given by the doctor coincided with the time of occurrence.
4. At the trial, the afore-mentioned witnesses fully supported the prosecution case. Muhammad Ali, paramour of the deceased girl, was also examined. He further confirmed the motive disclosed in the extra-judicial confession made try the eye-witnesses by the accused soon after the occurrence. In their statements under section 342, Cr. P. C., the accused raised a plea of total denial and gave a counter-version that the deceased having been recovered from Muhammad Ali P.W.
5. On the day previous to the occurrence was kept by Dr. Bashir in his house where he and his friend Sadiq raped her. On the next morning they (Dr. Bashir and Sadiq) were taking the deceased to another place when on the way she threatened that she was going to disclose as to what they had done to her; therefore, they murdered her and instead falsely implicated them, i.e., the accused.
6. They produced their sister Mst. Zairian, i.e., the mother of the deceased in defence. She supported them. The learned trial Judge has believed the prosecution evidence and convicted and sentenced the accused as noted earlier.
7. I have read the evidence. Muhammad Ali, the paramour of the girl, has fully supported the prosecution case. His village Kitan is 2/3 miles away from the place of occurrence. The girl had been brought from him by Dr. Bashir only a day before the occurrence and, according to him, with a promise that she would be properly married to him after the restoration to her mother which would re--habilitate their honour. Had there been any truth in the assertion of the accused that Dr. Bashir and Sadiq, who acted as respectables of the area in the restoration of the girl, had actually raped and murdered the girl, there was no reason why Muhammad Alt would have supported the prosecution case. I do not believe the version given by the sister of the accused which is an afterthought and previously she has made an attempt to save her brothers. There was absolutely no reason or justification for the girl after the restora--tion to stay for the night in the house of Dr. Bashir. I believe the prosecution evidence that the girl was, in fact, restored to her mother and uncles and they brought her from village Kitan to village Rajowal. That being so, neither the girl nor her relations would have permitted her stay in the house of Dr. Basbir, and the latter, who is a respectable of the village, would not have liked such as girl to stay in his house where his wife and children also resided. The story given by the sister of the accused that the wife of Dr. Bashir subsequently disclosed that she had seen the rape being committed, apart from being inadmissible, is otherwise unbelievable. If it would have happened so, the girl would have raised an alarm and the matter being fresh the villagers would not have allowed Dr. Bashir and Sadiq to get away with it or to take away the girl in the next morning without even the knowledge of her relations. Moreover, if the defence version were true disinterested and more direct evidence would have been produced.
8. All the eye-witnesses are disinterested. Only Muhammad (alias Muhammad Ali) P. W. Bas been proved to be a Razakar and could be considered to be under the influence of police, but so such criticism can be levelled against the other witnesses. In the cross-examination, an attempt was made to show that Muhammad Saeed was also a Razakar but it has not been positively estab-- lished. The statement of a Foot Constable in this behalf does not carry any value because the visits of Muhammad Saced P.W. To Police Station as a Mujahid could have been misunderstood by the Foot Constatable as his being a Razakar. Be that as it may there is no justification for any assumption that Dr. Bashir, or, for that matter Saeed would nave been able to influence the police to falsely implicate the two accused and the allegation of bribe is too loose and wild to be accepted. All the witnesses have given good reasons for being present near the spot, the occurrence is of daylight. The accused were apprehended at the spot and were produced before the police, immediately on their arrival. Blood-stained hataher of Sharif and clothes of bothof them were duly taken into possession. The additions in the recovery memos. Relating to the clothes have sufficiently been explained in the judgment of the learned trial Judge. As to why the witnesses were present at about 1 o'clock near the place of occurrence, when all of them were supposed to be doing their normal business, has been explained by each one of them. Noth--ing has been brought in the cross-examination to discredit the eye-witnesses in this behalf. The general supposition that they should have been present at their normal places of business or residence has not impressed me as the witnesses have given good and cogent reasons in support of their claim. No doubt the amount, for the recovery of which saeed was looking for his debtor, is small i.e. Rs. 12 but it cannot be held to be neither impossible nor improbable that he would have conducted himself in the manner he claimed. The circumstance that he was carrying a gun is explained: firstly, by his being a Mujahid and a licensee. It need not necessarily have been carried for the recovery of the money; and secondly, it appears to be a matter of habit formation. The discrepancies pointed out by the learned counsel are of details and are inconsequential. After having carefully considered the eye- witness account, which was analysed by the learned counsel for the State with sufficient amount of fairness to the accused, I am satisfied that in so far as the main features of the case are concerned, they have told the truth. They saw Sharif inflicting blows to the deceased when Mukhtar had held the deceased by her arm and subsequently apprehended there. They also told the truth in that the accused made certain inculpatory admissions before them.
9. It is clearly mentioned in the F.I.R. That on the day o occurrence at 1-00 in the afternoon, Mst. Irshad deceased was, for the second time, in the act of running after her lover when she was murdered by her uncles. The prosecution itself has put forward a motive in a way that gives benefit to the accused in so far as the nature of the offence is concerned. The accused had, on account of dishonour and insult to their fami--ly, shifted their abode. The deceased was responsible for this.
10. The had through the respectables of the village, succeeded in bringing he back to their house and within a few hours (after passing a nigh only) the deceased started running away after her lover. It is in evidence that near the place of occurrence are a school and an office of the Union Council.
11. While running through the village and passing through these places when the uncles were chasin her, people must have watched the drama and the more she ran away the more the accused would have been provoked. It can legitimately be imagined that while running after her, they must have been asking her not to insult them more but she persisted. No doubt she was a young girl and able to run but being chased by two men was ultimately overtaken. All this including the chase) must have violently re-acted on the emotions of the accused. The must have felt gravely provoked and insulted. Therefore, considering all the circumstances of the case, I feel satisfied that the blows were given to her as a result of grave and sudden provocation. Sharif accused was carrying the hatchet and, according to all the eye-witnesses, except for a departure made by Dr. Bashir, was responsible for causing all the Injuries. Isis case falls under Exception I to section 300, P. P. C. I set aside his conviction and sentence under section 302, P. P. C., and instead convict him under section 304, Part I, P. P, C. He has already undergone more than three years' R. I. Without counting 'the remissions, if any. His provocation was on account of his young niece, Keeping in view all the circumstances of the case, I consider the sentence that he has already undergone as sufficient to meet the ends of justice. I, therefore, sentence him accordingly: There is no need to impose any fine nor the relationship of the parties warrants any award of compensation. The result, therefore, is that Sharif will be released forthwith if he is next required to be detained in any other matter. The suo motu revision is partly accepted.
12. It is doubtful if Mukhtar appellant caused any injury to the deceased. Dr. Bashir had not stated anything in his examination---in-chief indicating that Mukhtar had, at any stage of the occurrence, used the hatchet. However, in his cross-examination, he Admitted that "Mukhtar reached the spot after Sharif had already given one hatchet blow to the deceased: The first thing Mukhtar accused did was to catch the deceased by her arms. Mukhtar accused took the hatchet from Sharif after he reached the place of occurrence". It is after this that he stated that then Mukhtar also gave a hatchet blow on the back 'of the deceased. None of the other eye-witnesses has supported Dr. Bashir In this behalf. I, therefore, exclude this part of the' statement relating to the blow given by Mukhtar, out of consideration. The remaining part quoted above, as it stands, gives benefit to Mukhtar in so far as the intention is concerned. A reasonable possibility cannot be excluded that he being the elder: of the two brothers might have been in a better position to control his emotions. He, after having reached the spot, held the deceased by her arm and, at the same time, took the hatchet from Sharif. This can clearly mean that he took the hatchet from Sharif in order to prevent him from doing further harm to the girl. Otherwise too, it seems more probable because if Sharif was already effectively using the hatchet by causing injuries to the deceased there was no reason for Mukhtar to have taken the hatchet from him even if he intended more harm to be caused to the deceased. I therefore, have come to the conclusion that there is reasonable doubt with regard to Mukhtar having shared the intention of Sharif and that he acted in furtherance thereof. I give him the benefit of doubt, accept his appeal and acquit him. He shall be released forthwith if not required to be detained in any other matter.