' MAZHAR-UL-HAQ, J.-Amir Bakhsh (35) and Allah Ditta (32) residents of ;Mahwah in District Dera Ghazi Khan, were tried by the Sessions Judge, Dera Ghazi Khan, under sections 302 and 307 read with section 34 of the Pakistan Penal Code, for the murder of Mehar Dil and for murderously assaulting Mst. Noor Khatoon (P. W. 11). Amir Bakhsh was sentenced to death and to pay a fine of Rs, 200 in default of payment of fine, to undergo further rigorous imprisonment for four months. He has also been sentenced to seven years rigorous imprisonment under section 307 of the Pakistan Penal Code and to pay a fine of Rs, 100, in default of payment of fine to undergo further rigorous imprisonment for one month. The latter sentences have been ordered to run concurrently with any other sentence passed by this Court if the death sentence is not confirmed. Allah Ditta was acquitted. The appeal of the convict and the connected murder reference are before US.
2. Amir Bakhsh appellant is a step brother of Khawand Bakhsh (P. W. 10). Mst. Noor Khatoon P. W. Is the wife of Khawand Bakbsh. Dhani Bakhsh brother of Khawand Bakhsh is married to a sister of Allah Ditta, the acquitted accused. Mehar Dil deceased was a nephew of Khawand Bakhsh, Dhani Bakhsh and Amir Bakhsh. Moran (P. W. 8) is a brother of Mehar Din and Dil Murad (P. W. 7) is married to their sister.
3. According to the prosecution, Mehar Dil was a watchman for the harvested wheat of Sardar Liaquat Khan Mazari. On 15th May 1972, at about 9 a.m. Mehar Dil deceased was returning with an empty bullock cart after delivering some wheat in the Basti of Fazal Karim, when Amir Bakbsh appellant and Allah Ditta (acquitted accused) emerged out of some bushes on the river bank and attacked him with their hatchets. The occurrence was seen by Dil Murad (P. W. 7), who was returning from the nearby house of Sohrab (P. W. 9), where he had gone to collect a debt. On his inquiry, as to why they were killing him, they replied that he was "kala" with Mst. Noor Khatoon, meaning thereby that he had illicit intimacy with her. The occurrence was also seen by Sohrab and Moran P. Ws. Who came from the vicinity on hearing the alarm. After injuring Mehar Dil, Allah Ditta went towards Kashmore (village), while Amir Bakhsh went towards the house of Mst. Noor Khatoon sating that he has going to kill her also.
4. Mst. Noor Khatoon was sewing a shirt in her kotha when Amir Bakhsh appellant reached there. He aimed a hatchet blow on her, which struck ceiling of the kotha and also injured her left cheek. The second blow was warded off by list. Noor Khatoon with her right hand. Dil Murad who followed the appellant arrived in the meantime. He caught hold of the appellant with the help of Khawand Bakhsh and snatched his hatchet. Thereupon, Dil Murad P. W. Went back to the river creek and found that Mehar Dil had died. Leaving Moran and Sohrab P. Ws. With the dead body Dil Murad went to Police Post Shahwali and made F. I. R. Exh. P. C. There to Riaz Ahmad, Sub-Inspector (P. W. 13) at 10-30 a.m. The Sub-Inspector wont to the spot, prepared the necessary documents and sent the dead body of Mehar Dil for post-mortem examination. He also took into possession hatchet (Exh. P.
1) produced before him by Dil Murad and made it into a sealed parcel. He also collected blood- stained earth from near the dead body of Mehar Dil. It was made into a sealed parcel. Mst. Noor Khatoon P. W. Had injuries on her person. The Sub-Inspector prepared her injury statement and sent her for medical examination. He arrested the accused on 23rd June 1972.
5. On 16th May 1972, at about 7 a.m., Doctor Hafiz Ahmad Khan, Medical Officer, Civil Hospital, Rojhan (P. W. 1) held the autopsy on the dead body of Mehar Dil and found the following injuries :-
(1) Multiple incised wound arranged irregularly in the area of 8" x 8" x 7' on the top and back of the skull cavity was cut into pieces. The brain matter was cut into pieces. The skull cavity was widely opened.
(2) Multiple incised wound 6" x 4" bone cut on the back of the left side of neck. The wounds were transverse. The inner end was at the 4th cervical spine. The spinal cords was cut.
(3) An incised wound 3' x x muscle deep on the back of right side of chest. The wound was transverse and was 3' above the inferior angle of scapula,
(4) An incised wound l' x 1/2' x 1' along the inner aspects of middle and terminal phalynx of index finger of right hand.
' Death was due to shock and brain injury. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature.
6. The same day Doctor Hafiz Ahmad Khan, examined Khatoon P. W. And following injuries were found on her person
(1) An abrated bruise 1" x 3" on the left side of cheek, 1/2' from the angle of the mouth.
(2) An incised wound x 1/2' x skin deep in front of the base of the thumb of the right hand. The wound was vertical. The lower end was 1/2 below the wrist joint.
' Both the injuries were simple. Injury No, 1 was caused by rubbing with rough surface, while injury No, 2 was caused by a sharp-edged weapon.
7. The accused denied guilt. Amir Bakhsh appellant stated that on the day of occurrence, he was grazing goats in the nearby bushes on the hank of creek, where he saw Mst. Noor Khatoon and Mehar Dil sitting together in the bushes upon which he lost self-control and upon grave and sudden provocation, injured them with his hatchet then and there. He denied that Mst. N.Jor Khatoon was attacked in her house. He added that after the occurrence, he himself went to the police station with his hatchet where he reported the matter.
' Allah Ditta (acquitted accused) admitted this relationship with Amir Bakhsh appellant and alleged that he had been falsely implicated due to party faction and was victimized because he did not vote for the Syyeds of Shahwali in the election. No accused produced defence.
8. The eye-witnesses of the murder of Mehar Dil are closely related to him except Sohrab P. W., who was said to have lived at a distance of only 15/16 karams from the spot. Although the witness was present when the Patwari came to prepare the site plan Exh. P. H. He did not indicate his house to him. The Patwari denoted even the Bastis which were 200 to 400 karams away and if the house of Sohrab was anywhere near the spot, he would not have failed to show it. In his examination-in- chief, Dil Murad P. W. Stated that he was returning from Sohrab's house after realizing money, which was due from him, but he contradicted himself by saying in the cross-examination that he had not been able to get any payment from him. Sohrab P. W. On the other hand alleged that out of the amount due from him, he paid Rs, 3 or 4. They both differ about the total amount of the debt.
9. Moran P. W. Stated that he was present near the spot, because he was grazing his goats there.
Like Sohrab he also remained with the dead body of Mehar Dil till the arrival of the police. But Sohrab admitted that he did not notice any goats although Moran P. W. Had not left him to take them home. It seems that this story was introduced to account for his presence at the spot. We find no reason to disagree with the finding of the trial Court regarding the evidence of Dil Murad, Moran and Sohrab P. Ws. They are chance witnesses and considering the improvements made by them at the trial coupled with the discrepancies in their statements, we are of the view that their presence at the spot was doubtful.
10. The trial Court accepted the evidence of Dil Murad, Khawand Bakhsh and Mst. Noor Khatoon P.
Ws, about the attack on Mst. Noor Khatoon P. W. In her house. After considering their evidence, we are not prepared to rely on it. If Dil Murad lied about his presence at the time of the murder of Mehar Dil, he was not likely to have come after Amir Bakhsh appellant from there. Neither Khawand Bakhsh nor Dil Murad nor Amir Bak hsh appellant were said to have received any injury during the struggle to snatch the hatchet. The hatchet was said to have struck the ceiling of the kotha of Khawand Bakhsh and blood of Mst. Noor Khatoon was also said to have fallen on the floor.
Khawand Bakhsh stated that the Sub-inspector had also come to their house on his arrival in the village, but there is no evidence about his seeing damage to the ceiling of the kotha or collecting b.00d-stained earth from the house of Mst. Noor Khatoon, On the contrary, the Sub-Inspector stated that he did not even go to the house of Ms:. Noor Khatoon and he was supported by Mst.
Noor Khatoon on the subject. Again, when Mst. Noor Khatoon alleged that her blood smeared her clothes as well as the clothes which she was sewing, her husband deposed that as his wife had raised her hand, no blood had fallen on her clothes or at the shirt, which she was stitching.
According to Mst. Noor Khatoon, she had shown all these blood-stained articles to the Sub- Inspector at the bank of the river, but the Sub-Inspector deposed that no blood-stained clothes were shown to him.
11. The presence of the eye-witnesses is extremely doubtful. There is every reason to believe the plea of the appellant that he attacked Mehar Dill, when he was sitting with Mst. Noor Khatoon in the bushes at the river creek. Most probably, Mst. Noor Khatoon was also injured there but assuming that she was attacked at her house, it would not make much difference, because it A appears from the statement of Moran P. W. That her house was not more than 100/200 karams from there and the provocation to the appellant would not subside while covering this distance. The incident seems to have been split into two episodes in order to deprive the appellant of his plea of grave and sudden provocation. Dil Murad alleged that he snatched the hatchet from the appellant at the house of Khawand Bakhsh, but did not take it with him, when he went to the police station for report. His explanation that he left it at the scene of the murder and did not take it to the police station because he wanted to avoid being suspected for the crime is not worthy of secrious notice.
We accept the plea of the appellant. His carrying a hatchet with him would not indicate premeditation on his part, because carrying of a hatchet by a villager in the backward areas is common.
12. In view of what is stated above, we alter the conviction of Amir Bakhsh from 302, P. P. C. To 304, Part I, P. P. C. And his conviction under section 307, P. P. C. To one under section 308, P. P. C. He is awarded three years rigorous imprisonment under section 304, Part I, P. P. C. And one year's rigorous imprisonment under section 308, P. P. C. The sentences of fine are remitted. Both the sentences will run concurrently. The death sentence is not confirmed.