Z. A. CHANNA, J.-The two appellants, who are brothers inter se have been convicted by the learned Sessions Judge; Jacobabad, under section 302 read with section 34, P. P. C. For committing the murder of Mst. Dalmi, the wife of appellant Baig Mohammad, and under section 323 read with section 34, P. P. C. For causing simple injury to P.W. Bakhat A.I, arid have been sentenced on the first count to transportation for life and a fine of Rs. 5,000 each and in default of payment of fine to suffer R. I. For six months and under the second count to suffer R. I. For six months, both the sentences to run concurrently.
2. The case of the prosecution is that on 29-10-1969 at about 8 a.m., complainant Bakhat Alt, his son Ibrahim and daughter Mst. Delmi were working on their land, when the two appellants were seen approaching them. Appellant Baig Muhammad was armed with a lathi while appellant Fateh Muhammad was armed with a hatchet. Complainant Bakhat A.I and his son Ibrahim tried to grapple with the appellants but they eluded them and attacked Mst. Dalmi. Appellant Fateh Muhammad gave her hatchet blows and appellant Baig Muhammad gave her laths blows. The complai--nant raised cries on hearing which his second son Muzaffar, Gul Khan and others came up running. They apprehended the two appellants alongwith their weapons and tied them up. Mst.
Dalmi was found to be dead. She has a number of injuries on her person. Leaving his two sons, Ibrahim and Muzaffar, and P. W. Gul Khan incharge of the two appellants, complainant Bakhat A.I came to the Saddar Police Station in Jacobabad Town and lodged his F. I. R., which was recorded the same day at 12 noon by S. H. O. Muhammad Kassim. The motive for the murder as stated in the F. I. R. Is that appellant Baig Muhammad suspected the deceased to be having illicit relations with one Saindad and used to torture her because she was visiting the houses of her relations Razi Khan, Jind and Qammruddin. Some 20 days before this incident, Mst. Dalmi complained about her husband's conduct to her father Bakhat A.I, who made her to stay with him. Appellant Baig Muhammad demanded his wife back, but the com--plainant refused to hand over Mgt. Dalmi, and this refusal annoyed appel--lant Baig Muhammad.
3. After recording the F. I. R., S. H. O. Muhammad Kassim accompa--nied the complainant to the scene of offence. At the spot where the body of Mist. Dalmi was lying, the ground was stained with blood. Near the dead body, there were lying on the ground a wooden peg and a hatchet, both of which were stained with blood. The S. H. O. Secured the blood-stained earth, the wooden peg and the hatchet under Mashirnama (Exh. 30). The S. H. O. Also found appellant Fateh Muhammad at the scene of offence, tied up with a turban. He had an injury on his nose, and was wearing a khaki shirt, a white vest and a dark loin cloth, all of which were blood-stained. The S. H. O. Took appellant Fateh Muhammad in his custody and secured his blood-stained clothes under Mashirnama (Exh. 32). The S. H. O. Did not find appellant Baig Muhammad at the scene of offence, as he is said to have managed to escape after the complainant had left for the Police Station. The S. II. O. Recorded at the scene of offence the statements of P. Ws. Ibrahim, Muzaffar and Gul Khan. He then sent complainant Bakhat A.I and appellant Fateh Muhammad for medical examination and forwarded the dead body of Mst. Dalmi for post-mortem examination. On 11-1-1969, appellant Baig Muhammad was produced by his relations before the S. H. O. At the Police Station, and was arrested. On 13-11-1969, the appellants were challaned.
4. The autopsy on the deceased was conducted by Dr. Mulchand, M. O. District Headquarters'
Hospital, Jacobabad. On external examination, he found the following injuries on the person of the deceased:--
(1) Incised wound about 3" x 1" x structure deep on the left side of neck.
(2) Circular incised wound about 3----- x 1" x structure deep with cervical vertebrae cut on the right side of neck.
(3) One circular incised wound around the left wrist about 3" x 1" x structure deep and left wrist joint attached with skin.
On internal examination the Medical Officer found the following injuries:- Cervical vertebrae was fractured, and the muscles and the big blood vessels of neck were cut.
The doctor has opined that the death of the deceased was due to shock and haemorrhage as a result of cutting of the big blood vessels of the neck and fracture of the cervical vertebrae.
According to him, external injuries Nos. 1 and 2 were sufficient in the ordinary course of nature to cause death.
5. In his statement in the committal Court, appellant Fateh Muhammad denied that he had killed the deceased or caused injuries to her. He also denied that he was apprehended at the scene of offence or that a blood--stained hatchet and blood-stained clothes were secured from him.
Accord--ing to his statement in that Court he was arrested from his land and had sustained injuries while grappling with the complainant and the witnesses. In the Sessions Court, however, he completely changed his statement and stated as follows:- "I have killed Mst. Dalmi as kari on seeing her in compromising position with Shahbazi. My brother Baig Muhammad was not with me. I myself went to the police station and filed report. I surren-- dered my blood-stained hatchet and clothes at the police station. I brought police to the spot where investigation began and the police with the collusion of the father of the deceased gave another turn to the story of the incident and made it falsely a murder case against me. My brother Baig Muhammad had no hand in the murder. I have nothing more to add."
6. Appellant Baig Muhammad, both in his statement before the com--mittal Court and in the Sessions Court, denied that he had any hand in the killing of Mst. Dalmi or that he was even present at the spot when she was killed. In the Sessions Court, he has further stated as follows:- "My brother Fateh Muhammad has killed Mst. Dalmi as kari on seeing her in compromising position with Shahbazi. I was not with him. My brother went to the police station and filed report. He surren-- dered blood-stained hatchet and clothes at the police station. The police with collusion of the father of the deceased gave another turn to the story of incident and made it falsely a murder case against me and my brother."
7. It is quite clear on the evidence led in the case that appellant Fateh' Muhammad killed Mst.
Dalmi. The complainant and his two sons, Ibrahim and Muzaffar have all deposed to having seen appellant Fateh Muhammad giving hatchet blows to the deceased. He was apprehended on the spot with the blood-stained hatchet. His clothes were stained with blood, and he had an injury on his nose. The hatchet and clothes were sent to the Chemical Examiner, who has reported that the blood on these articles is-of human origin. The S. H. O. Who went to the scene of offence immediately after the F. I. R. Was lodged, found the appellant at the wardat tied up with a turban. In addition to all this evidence, appellant Fateh Muhammad himself has admitted that he had killed the deceased.
8. We are, however, not satisfied as to the participation of appellant Baig Muhammad in the killing of Mst. Dalmi. The complainant and his sons have deposed that appellant Baig Muhammad was armed with a killa (wooden peg) and with it he had attacked the deceased and caused injuries to her. They, however, stand contradicted by the medical evidence which shows that all the injuries on deceased Dalmi were caused with a sharp cutting weapon like a hatchet and no injury on her person could be attri--buted to a killa or a lathi. The complainant has also admitted that no injuries were caused to him by this appellant and that the injuries on his person were caused by appellant Fateh Muhammad. If this appellant was armed with a kills, as alleged by the eye-witnesses, then the presence of the blood thereon cannot be satisfactorily accounted for, as no injury with this weapon appears to have been caused to the deceased or to any of the prosecution witnesses. If appellant Baig Muhammad had been with appel--lant Fateh Muhammad at the time that the latter attacked the deceased, and had been armed as alleged by the eye-witnesses, he surely would have inflicted some injury on the deceased, for it was he who had suspected his wife of being unfaithful to him. The absence of any injury either to the deceased or any prosecution witness, which could be attributed to him, clearly suggests that he was not present at the scene of offence or at any rate took no part in the attack on the deceased. This inference finds fur--their support from the fact that although the F. I. R. Indicates that both the appellants had been apprehended and tied up at the scene of offence by the witnesses, when S. H. O. Muhammad Kassim went to the scene of offence, he only found appellant Fateh Muhammad there. If appellant Baig Muhammad had participated in this crime and had been apprehended at the spot, it is unthinkable that the complainant's sons, Ibrahim and Muzaffar, and P. W. Gul Khan, who were asked by the complainant to keep watch over the culprits, would have allowed him to escape. The explanation offered by P. W. Ibrahim that appellant Baig Muhammad escaped on the pretext of making water appears to us to be wholly unconvincing.
9. The only material point which remains for consideration is whether appellant Fateh Muhammad killed the deceased because he had seen her in a compromising position with Shahbazi, as alleged by him. In the Sessions Court, complainant Bakhat A.I as well as his two sons. Ibrahim and Muzaffar have tried to oblige appellant Fateh Muhammad by stating that Mst. Dalmi had gone to fetch water; that some time later she came running back crying that she had been declared kari by appellant Fateh Muhammad who had seen her with Shahbazi, and that appellant Fateh Muhammad came chasing her, shouting that he had seen her in a compro--missing position with Shahbazi, and thereafter gave hatchet blows to her and killed her. However, these obliging answers appear to be far from the truth and in our opinion have been given on account of the fact that appel--lant Fateh Muhammad is a son-in-law of the complainant, being married to his other daughter Sahabzadi. If appellant Fateh Muhammad had in fact seen the deceased in a compromising position with Shahbazi in the dry bed of the watercourse, as alleged by him in the Sessions Court and also obligingly stated by the witnesses in that Court, she would not have been found fully clothed. Furthermore, the watercourse where appellant Fateh Muhammad is said to have seen the deceased with Shahbazi is accord--ing to evidence of complainant 100 paces and according to the other witnesses at least 200 paces away from the spot where she was given hatchet blows. It is impossible to believe that the deceased could have managed to put on her clothes and run for 100 to 200 paces before she was over--taken by appellant Fateh Muhammad. It is also most likely that if appel--lant Fateh Muhammad had seen Mst. Dalmi in a compromising position with Shahbazi he would have first turned his attention to him and dealt with Mst. Dalmi later. In his statement in the Sessions Court, appellant Fateh Muhammad has alleged that he had attacked Shahbazi but the latter gave him a lathi blow on his forehead and ran away. It is difficult to believe that appellant Fateh Muhammad, who was armed with a hatchet, would have received injuries at the hands of a person who was merely armed with a lathi, without being able to cause any injury to his assailant. It may also be pointed out that in the lower Court, appellant Fateh Muhammad bad given quite a different story from the one given by him in the Sessions Court and had alleged that he was taken from his lands by the complainant's party and that be had sustained an injury in a scuffle with the complainant and his witnesses on his lands. In our opinion, the story of the appellant seeing the deceased in a compromising position with Shahbazi is wholly untrue and has been set up merely with a view to help appellant Fateh Muhammad who is the son-in-law of the complainant. We, therefore, repel the plea of rave and sudden provocation. It appears that appellant Fateh Muhammad' killed the deceased because of his suspicion that she was unfaithful to her husband and her refusal to return to her husband. It is even possible that he may have seen her talking to Shahbazi, who is said to be her uncle, or seen him passing by. This, however, would not be sufficient for reducing his crime from murder to a lesser offence. We would accordingly maintain his conviction and sentence and dismiss his appeal. So far as appellant Beig Muhammad is concerned, we accept his appeal and acquit him and direct that he be released forthwith if he is not required in any other case.