1. ' HAMOODUR RAHMAN, C. J.--The respondent in this case was tried with two others under section 302/307/34, P. P. C. For the murder of one, Rand Bux during the night between the 22nd and 23rd May .1972, at Wazir Khan Khosa village, which is at a distance of 13 miles from Jhatpat Police Station of Sibi District. The learned Sessions Judge of Quetta acquitted the co-accused who were brothers of the petitioner but convicted the petitioner alone under section 302, P. P. C. And sentenced him to death as also fined him a sum of Rs, 300. He was also sentenced to 3 years' rigorous imprisonment under section 307, P. P. C.
2. ' On appeal and reference, the High Court has declined to confirm the sentence of death and altered the conviction of the petitioner to offences under sections 304 Past 1, and 325, P. P. C. He has been sentenced on the first count to 7 years' R I. And a fine of Rs, 100 or, in default, further rigorous imprisonment for three months and, on the second count, to two years' R. I.
3. ' The State has come up for special leave to appeal against the acquittal of the respondent under sections 302 and 307, P. P. C.
4. ' The allegations of the prosecution in this case were that the three accused had murdered the deceased Rasool Bux in his own house while he was sleeping on his cot which was in close proximity of the cost of his wife, Mst. Noor Bibi. The latter woke up on hearing a noise and saw the respondent giving hatchet blows to her husband while one of the acquitted accused, Nokkar, had caught hold of the deceased by his feet and the other acquitted accused Ghulam Nati, was cutting his nose (neck) with a knife. On her raising an alarm Ramzan, the father of Rasool Bux, who was sleeping nearby, also woke up and identified the culprits.
5. ' After killing Rasool Bux, it is alleged, the respondent and his companions went to their own house where their sister-in-law, Mst. Pathani, was sleeping on a cot. There they pulled her out of the cot, threw her on the ground and gave her a hatchet blow. She started running to her father's house but was chased and given further hatchet and club blows. Some blows were given to Mst. Pathani within the view of Gullan, the father of Pathani, near his house.
6. ' This attack was also seen by her own husband, Karim Bux, as well as three other persons who were at that time playing cards with Karim Bux in his house.
7. ' The medical evidence disclosed that the deceased, Rasool Bux, had four incised injuries on his person ; one of the injuries was on the right side of the face, below the eye, cutting the bone, while the remaining three injuries were on the neck, cutting the muscles, all the blood vessels and even the vertebral column. With these injuries he must have bled profusely.
8. ' Mst. Pathani also had six injuries on her person of which four had been caused by a sharp-edged weapon and the remaining two, which were on the back and the right shoulder respectively, with some blunt weapon. One of the incised injuries was on the right fore-arm, cutting the bone, while another such injury was on the skull.
9. ' The defence of the respondent was that he alone had killed Rasool Bux and caused the injuries on Mst. Pathani, the wife of his own brother Karim Bux, due to grave and sudden provocation as he had seen the deceased and Mst. Pathani in a compromising position at about 10 or 11 in the night. He loudly proclaimed them to be "Siahkars" upon which Rasool Bux started running but he chased him, attacked him with a hatchet and killed him. The other two accused pleaded complete innocence.
10. ' The trial Court disbelieved the defence set up by the respondent, even though it was supported by the evidence of Mst. Pathani herself and her father Gullan.
11. The High Court, however, took the view that the learned Sessions Judge had not attached due weight to the evidence in favour of the accused. The High Court felt that the prosecution evidence suffered from serious infirmities. Firstly, it was contradicted by the absence of any blood stains on the cot or the bedding spread over the cot on which Rasool Bux was alleged to have been killed.
12. The recovery of blood-stained earth from underneath the cot was, therefore, surprising.
13. ' Secondly, the admissions made by Mst. Pathani and her father, Gullan, were found to be further supported by the fact that the woman had been subsequently divorced by her husband, the brother of the respondent, on account of 'siakhari.
14. ' Thirdly, the fact that she was beaten by the respondent in the presence of her own husband and the other witnesses in his brother's house without anyone intervening also lent strong support to the story that she was a 'siahkarii, because, it is customary among the 'Baluchis' not to intervene when a 'siahkari' is being attacked.
15. ' Apart from this, the evidence of Noor Bibi, the wife of the deceased. And that of her father, Ramzan, was discrepant in so far as Ramzan, had not stated that when he got up, he saw the accused striking the deceased. According to his version, the accused were in the process of running away at the time and it was Noor Bibi who told him that the respondent and his companions had attacked the deceased.
16. ' Learned counsel appearing for the State, however, contends that the High Court has unjustifiably rejected the prosecution evidence which, it is said, was abundantly corroborated by the medical evidence and other circumstances. The direct evidence of Mst. Pathani and her father, Galan, going in favour of the accused, was sought to be assailed on the ground that these witnesses had been disbelieved by the trial Court. Even so, we are unable to agree that in the face of the admission of the woman, Mst. Pathani, the respondent could have been convicted under section 302, P. P. C. On the testimony of Noor Bibi alone. Her evidence was materially contradicted by the absence of any blood stains on the cot or on the bedding.
17. ' Having perused the judgment of the High Court and heard the learned counsel appearing in support of the petition, we are satisfied that the High Court acted upon correct principles in giving the benefit of doubt to the respondents herein, The prosecution case had already been considerably weakened by the acquittal recorded in the trial Court in respect of two of the co- accused.
18. ' In the circumstances, we see no sufficient ground for interference. This petition is, accordingly, dismissed.