This judgment will dispose of Criminal Appeals Nos. 730 and 755 of 1972 filed by Maula Bakhsh and Faqiru through Jail. They were tried by the learned Sessions Judge, Dera Ghazi Khan along with Said Khan, Tariq and Khaira who were acquitted. The appellants were convicted under sec--petition 302/34, P. P. C. And sentenced to life imprisonment in addition to a fine of Rs. 1,000 each. They were also convicted under section 307/34, P. P. C. And sentenced to five years' R. I. For causing injuries to Mainghal P. W. Khaira the acquitted accused is nephew of Faqiru appellant. Tariq is the brother of Maula Bakhsh, Faqir Mohammad and Said Khan are cousins inter se and are uncles of Maula Bakhsh and Tariq.
2. The occurrence took place in Kotla Hamal on .12th May 1971 at peshiwela situate at a distance of 8 miles from Police Station Rojhan, Tehsil Rajanpur, District D. G. Khan. Lehri (P. W. 7) brother of Baighu lodged the F. I. R. (Exh. P. A.) the same day at 8-15 p. m., which was recorded by Ch. Mohammad Sharif S. H. O. (P. W. 10).
3. The prosecution case briefly disclosed by Lehri was that at Shamwela (again said at Zohr Nimazwela) be, Baighu and Mainghal were clearing jungle from their land situate at a distance of 3 squares from their houses. Faqiru, Khaira and Tariq armed with hatchets, Maula Bakhsh armed with sword and Said Khan armed with dang came at the spot. On reaching the spot they attacked Mainghal P. W. Faqiru accused gave a hatchet blow on the head of Mainghal and Maula Bakhsh gave a sword blow which hit biro on the arm. Faqiru then gave hatchet blow on the left foot of Mainghal, Said Khan gave a dang blow on his back. Khairu also gave hatchet blow to Mainghal which fell on his thumb. Tariq accused tried to hit Mainghal on his head but the blow fell on his right leg. Then the accused persons attacked Baigu deceased who was carrying a Vahola. Maula Bakhsh accused gave him a sword blow on his bead. Baigu deceased hit Faqiru accused with his Vahola hitting him on his right arm. Said Khan accused hit Baigu de--ceased with his dang on his back. Khairu accused gave a hatchet blow hitting Baigu deceased on his left arm. Lebri remained standing watching the occurrence. The accused threatened him with death, Randhu P. W. Also came at the spot and saw the occurrence.
4. There are two other eye-witnesses, namely, Mainghal and Randhu (P. W. 9). Mainghal, Lehri and the deceased were brothers while Randhu (P. W. 9) is their uncle. On 18th May 1971 sword (Exh. P. 4) was recovered from Maula Bakhsh which was taken into possession vide memo. Exh. P. D. Blood- stained hatchet (Exh. P. 5) was recovered from Faqiru. It was made into a parcel vide memo. Exh. P.
E. By Ch. Mohammad Shafi, Sub-Inspector in the presence of Wahid Bakhsh and Isa. The former was not produced. Isa is a chance witness. Mohammad Shafi did not appear at the trial. Ch. Mohammad Sharif (P. W. 10) identified his handwriting in order to support the recoveries. Report of the Serologist (Exh. P. O.) disclosed that the scrap--pings from the hatchet and sword were of human origin.
5. Dr. Hafeez Ahmad Khan (P. W. 1) examined Mainghal on 13th May 1971 at 9 a. m. He found six injuries on his person (1) an incised wound on the head; (2) another incised scratch on the left upper arm; (3) an incised wound skin deep in front of the base of thumb of left hand; (4) an incised wound across the outer aspect of right upper arm (5); incised wound across dorsum of the base of thumb of right foot; and (6) a contused swelling on the back of right side of chest over the inferior angle of scapula. Injury No. 1 was grievous. The rest were simple. Injuries 1'to 5 were caused by sharp---edged weapon. Injury No. 6 was the result of blunt weapon.
6. He conducted post-mortem examination on the dead body of Beghu the same day at 10-30 a. m and found three incised wounds one on the left side of cheek and neck, the other over the tragus and the third across the back of left forearm below the elbow joint. There were two abrasions also
(1) on the back of left shoulder and (2) 2" inner to injury No. 1. Injuries 1 to 3 were inflicted by sharp- edged weapon. Injuries 1 and 3 were grievous. Rest were simple. He declared injury No. 1 as dangerous and fatal in the ordinary course of nature. On 16th May 197 1 at 6 p. m. He examined Faqiru appellant and found a lacerated wound skin deep across the outer aspect of left upper arm above the elbow joint.
7. Faqiru at the trial made the following statement in answer to the question why this case against him.
"The incident took place in the following manner. I was going from my land to my house. It was digerwela. In the way near thorny bushes, I saw Baighu deceased standing and enquired from him as to why he was standing. He made no reply. I proceeded on and heard whispers. I saw that Mainghal P. W. Was in a compromising position with Mst. Taggi my niece. I challenged Maingal and Baighu deceased who did not carry any weapon and who started running. I chased them and caused them injuries with my sword. Both of them fell down, on receiving injuries at my hands. Mst.
Taggi had in the meantime succeeded in running away. I then went to the police station, carrying my sword with me and laid the information before the police. The S. I. Accompanied me to the spot."
He explained the injuries on his person by saying that he received then during the scuffle with Mainghal P. W. And Baigbu deceased. He denied to have received injury at the hands of Baighu with Vahola. He produced Mst. Taggi (D. W. 1) and Ganwaru (D. W. 2) in defence. Maula Bakhsh appel--lant stated that he was falsely implicated owing to enmity with the complain--ant party.
He pleaded his innocence and declined to produce any defence.
8. Mst. Taggi stated that she was the wife of Ganwaru. She admitted sexual intercourse with Mainghal P. W. At about digerwela. There was wind storm and visibility was poor. On seeing her uncle Mainghal P. W. Started running. Faqiru overtook him and they started fighting. She also ran away and went straight to Rojhan where she took refuge with Mir Balakh Sher Mazari who is Sardar of the tribe. Subsequently Ganwaru sold her away as Kali to Allah Yar her present husband. She denied to have been declared Kali with Mainghal before the occurrence who had never left the basti on account of being declared Kala with her. He remained in the village till the occurrence. Mst.
Hauri daughter of Lalu was never married to Ganwaru by Mainghal and his relatives, to compensate him for the act of adultery of Mainghal P. W. Ganwaru also supported Mst. Taggi.
9. Lehri disclosed the motive for the crime in the F. I. R. He stated Coat about 1-- years before the occurrence his brother Mainghal was found in compromising position with Mst. Taggi wife of Ganwaru and left village. A month and a half before the occurrence the matter was compromised accord--ing to Baluchi custom, Ganwaru was promised the hand of a woman as compensation.
Mainghal returned after this compromise. They were clearing jungle when Mainghal and Baighu were attacked.
10. The defence version was put to Randhu (P. W. 9) uncle of the other P. Ws. And the deceased, which he denied. Ch. Mohammad Sharif S. I. (P. W. 10) also denied that Faqiru appellant had laid information of murder before him and that Sub-Inspector went along with him to the spot. He also denied to have recorded the statement of Mst. Taggi, her husband Ganwaru or Mir Balakh Sher Mazari. He did not examine Rakhu father of Mst. Taggi. He also did not record the statement of Mst.
Harui and her father Rana Sandhani. All the three witnesses are relations. The two eye--witnesses are brothers and the third is uncle. They are all previous convicts for murders and thefts. They have falsely implicated other accused and no reliance can be placed on their testimony. Tile version given by the appellant Faqiru seems to be more probable and is supported by Mst. Taggi, her husband Ganwaru.
Dr. Hafeez Ahmad Khan (P. W. 11) in answer to Court question stated that in his opinion injuries I to 5 on the person of Mainghal P. W. And injuries, 2 and 3 on the person of Beghu deceased could more probably be the result of hatchet than a sword. This further supports the defence, version and the presence of Faqiru alone on the spot. In my view Maula Bakhsh has been falsely implicated like others who have been acquitted. I give him benefit of doubt, accept his appeal arid set aside his sentences of imprison--ment and fine and acquit him of all the charges.
11. So far as appellant Faqiru is concerned he has admitted to have caused injuries to deceased Baighu and Mainghal P. W. When he saw his niece being ravished by Mainghal and Baighu was on guard. I alter his conviction from section 302 to section 304, Part I, P. P. C. And reduce his sentence from life imprisonment to three years' R. I. His conviction under section 307, P. P. C. Is maintained but the sentence is reduced from five years' R. I. To two, years' R. I. Both the sentences shall run concurrently. The sentence of fine is uncalled for even for Faqiru, for he killed the deceased and caused injuries to Mainghal when he fecund his niece Mst. Taggi in compromising position with Baighu deceased. On account of acquittal of Maula Bakhsh section 34 of P. P. C. Also disappears.