' JAVID IQBAL, J.-Allah Rakha son of Qadir Bakhsh, aged 27 years, Rahim Bakhsh son of Pir Bakhsh, aged 25/26 years, Allah Bakhsh son of Roshan Dm, aged about 32 years, Ghulam Muhammad son of Ghazi Muhammad, aged 36 years and Khuda Bakhsh son of Jan Muhammad, aged 41 years, have been convicted under section 302/149, P. P. C. For the murders of Shahra, aged 30 years and Mst. Faizan, aged 22 years, and Allah Rakha was sentenced to death on two counts whereas the others were sentenced to imprisonment for life on two counts. They have also been convicted under section 148, P. P. C. And sentenced to two years R. I. Each. The sentences of imprisonment are ordered to run concurrently. The judgment against them has been passed by the Additional Sessions Judge-II, Multan, on the 29th of January 1975. Allah Rakha has filed separate appeal, namely. Criminal Appeal No, 112 of 1975, and the remaining four have filed Criminal Appeal No, 189 of 1975. These connected appeals as well as reference for the confirmation of death sentence awarded to Allah Rakha are being taken up and disposed of together by this judgment.
' It may be pointed out at this stage that Allah Rakha appellant is brother of Mst. Faizan deceased in this case whereas the other four appellants are her cousins.
2. The occurrence took place at 8-00 a. m. On the 19th of August, 1971, in Mauza Miranpur, at a distance of eight miles from Police Station Lodhran, District Multan. F. I. R. (Exh. P. A /1) was lodged at 10-00 a. m. On the same day by Muhammad Shafi (P. W. 6) brother of Shahra deceased and it was recorded at the Police Station by Moazam Baig S.
1. (P. W. 9).
3. The motive for crime as stated in F. I. R. Is that one year prior to the occurrence Shahra deceased had abducted Mst. Faizan deceased in :pursuance of his illicit relationship with her and, thereafter they had left Multan District and started living in Bahawalpur District. Three months before the present occurrence they returned to Multan District and started living in Miranpur. It is stated that the appellants and relatives of Mst. Faizan deceased tried to get her restored but Shahra deceased would not Agree. The occurrence took place in this background.
' It may be pointed out that Allah Rakha appellant has admitted the motive. He stared before the trial Court that Mst. Faizan his sister had been abducted by Shahra and that he never married her.
He also admitted before the committing Magistrate that Shahra had refused to return the hand of .Mst. Faizan.
4. The prosecution has produced three eye-witnesses of the occurrence, ,namely, Muhammad Shafi (P. W. 6) brother of Shahra deceased, Karim Bakhsh (P. W. 7) uncle of Shahra deceased and Allah Ditta (P. W. 8) nephew of Shahra deceased. Hatam, Imam Bakhsh and Allah Ditta Keasra were mentioned as eye-witnesses in the F. I. R. But were not produced. The three eye-witnesses produced by the prosecution have no enmity with the accused party and, therefore, it can be said that they had no motive to falsely implicate Allah Rakha appellant etc. They were indeed relatives of Shahra deceased with whom was living Mst. Faizan deceased, sister of Allah Rakha ,appellant.
5. Allah Rakha and Rahim Bakhsh appellants were arrested on the day of occurrence, namely, 19th of August, 1971, by Moazam Baig S. I. (P. W. 9). The other appellants were arrested by him on the 20th of August, 1971. At the instance of Allah Rakha appellant was recovered blood-stained hatchet P. 1 and taken into possession vide memo. Exh. P. T., dated the 19th of August 1971. The attesting witnesses are Ghulam Muhammad Lambardar {not produced), Shamas-ud-Din (not produced) and Moazam Baig S. I. W. 9). Blood-stained clothes of Allah Rakha appellant, namely, kurta P. 18, Dhoti P. 19 and turban P. 20, were got removed from his person at the time of his arrest and taken into possession vide memo Exh. P. S , dated the 19th of August 1971. The attesting witnesses are the same. According to -the report of the Serologist (Exh. P. V.), the aforementioned articles were - found to be stained with human blood. Nothing was recovered from the other appellants. The recoveries in this case have been believed by the trial Court.
6. The appellants denied having participated in the occurrence and stated that they had been falsely implicated due to enmity of the P. Ws although the motive version was admitted by Allah Rakha appellant, his defence version was of total denial and likewise he disowned recoveries.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner : On the fateful day the complainant party were watering their land. Muhammad Shafi (P. W. 6) and Shahra deceased went to their land in order to take a round that it was being properly irrigated. From the nakka, Muhammad Shafi P. W. Went towards the field which was being Irrigated and Shahra deceased proceeded to take a round on the khal. He had covered only a short distance when the appellants appeared out of jawar field which was nearby. Allah Rakha appellant was armed with hatchet 'whereas the others held dangs. They had started running after Shahra deceased challenging him that they had come to teach him a lesson for abducting Mst. Faizan. Muhammad Shafi P. W. On seeing this raised alarm and thereupon Karim Bakhsh (P. W. 7) was attracted to the scene of crime. They both started raising alarm. But Allah Rakha appellant etc. Warned them that if they intervened they would also be done to death. Thus, Allah Rakha appellant went on running after Shahra deceased whereas the other appellants surrounded him so that he could not escape and went on raising lalkaras that they would finish their enemy today. In order to save his life Shahra deceased ran into a cotton field which had been irrigated. He was still being chased by Allah Rakha appellant etc. But there being water in that field he could' to run. In the meantime, Allah Rakha appellant reached near him and gave a hatchet blow to him which fell on his head.
Thereupon, Shahra deceased fell down. While in that condition Allah Rakha appellant and others ran towards Chah Chaudhriwala raising lalkaras that they had finished Shahra deceased and that they would also end the life of Mst. Faizan. Muhammad Shafi and Karim Bakhsh P. Ws. Ran after them raising alarm. At a distance of four killas therefrom Mst. Faizan was plucking out grass from the cotton field. The two P. Ws. Shouted at her to run away in order to save her life as her enemies had come. In the meantime, at her alarm Allah Ditta (P. W. 8), Hatam, Imam Bakhsh and Allah Ditta Keasra (all not produced) rushed to thattlicene of crime and also raised alarm. Mst. Faizan heard the warning of the P. Ws. And started running away from the cotton field. But Allah Rakha appellant who was chasing her reached near her and gave a hatchet blow which fell on her head and she also fell down. Thereafter, in the fallen condition Allah Rakha appellant gave her 3/4 more hatchet blows which fell on her head etc. Thus, she died also on the spot. Then Allah Rakha appellant etc. Left the scene of crime raising shouts that they had today finished their enemies. In the meantime, many people of the village had assembled at the scene of crime. Shahra and Mst. Faizan had died on the spot. Leaving behind their dead, bodies, Muhammad Shafi P. W. Went to lodge the report.
8. Dr. Altaf Hussain Gardezi (P. W. 5) conducted post-mortem examination on the dead body of Shahra deceased at 5-00 p. m. On the 19th of August 1971, and found on his person three incised wounds on the back and neck, head and right shoulder and one abrasion on the back of left shoulder. In his opinion, the deceased died due to shock and haemorrhage as a result of the neck injuries which had been caused by sharp-edged weapon and were sufficient to cause death in the ordinary course of nature. Three injuries had been caused by sharp-edged weapon and one abrasion was the result of fall on hard substance.
' On the same day he conducted post-mortem examination on the dead body of Mst. Faizan and found on her person four incised wounds on the back and front of neck, top of left shoulder and head. All the injuries had been caused by sharp-edged weapon. She was found pregnant for 34 weeks and the baby was dead. In his opinion the deceased had died due to shock and haemorrhage and as a result of damage to the brain under the head and neck injuries which were sufficient to cause death in the ordinary course of nature.
9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for Rahim Bakhsh, Allah Bakhsh, Ghulam Muhammad and Khuda Bakhsh appellants had argued that although these four appellants were stated to have been armed with clangs, they did not cause any injury to the two deceased in the present case. It is further submitted that the allegation against them was only this that they raised: lalkaras or tried to surround Shahra deceased, but according to learned counsel even their surrounding Shahra deceased could not be proved or established from the record because so long as Shahra deceased had tried to escape, he managed to save his life. But it was only Allah Rakha appellant who was chasing him in the field and eventually got him. The reasoning of learned counsel is that their names have been mentioned along with Allah Rakha appellant as accused persons, because they were closely related to Mst. Faizan deceased. We have carefully examined the arguments of learned counsel. It is indeed clear that the aforementioned four appellants were closely related to Mst. Faizan deceased. But even by the prosecution the main part in the two murders had been ascribed to only Allah Rakha appellant. It is reasonably probable that they might have been present along with Allah Rakha appellant at the scene of crime. But their mere presence would not implicate them in the commission of crime. In our considered opinion, there is no evidence on the record from which it could be inferred that they had in fact surrounded Shahra deceased so that he could not escape.
The version in the F. I. R. At one stage is that they raised lalkaras and surrounded Shahra deceased but at another stage it is stated that they also ran after him while Allah Rakha appellant was chasing him with a hatchet. Had they really surrounded Shahra deceased and thus abeted or facilitated the commission of crime by Allah Rakha appellant, then there was no question of Allah Rakha appellant having chased Shahra deceased in the irrigated cotton field where he eventually took him. In our opinion, therefore, it is doubtful if the aforementioned four appellants had in any way abeted Allah Rakha appellant in the commission of crime. In the circumstances, they should have been given the benefit of doubt which we hereby given to them. Their convictions and sentences were not proper and they are accordingly set A aside. Their appeal is accepted and as a result Rahim Bakhsh, Allah Bakhsh, Ghulam Muhammad and Khuda Bakhsh appellants are acquitted and they shall be released from jail forthwith if not wanted in any other case.
' The case of Allah Rakha appellant is distinguishable. The prosecution case as against him is based on the ocular testimony of disinterested witnesses, supported by recoveries, motive as well as medical evidence. We have no doubt in our mind that he alone was guilty of double murder in the present case. Thus, the prosecution has succeeded in establishing its case as against him. His conviction under section 302, P. P. C. Was quite proper and is accordingly maintained. Learned counsel for Allah Rakha appellant pleads that although he was guilty of double murder, in the circumstances of the case, he should be awarded lesser penalty. We agree with learned counsel on this point. Allah Rakha appellant was real brother of Mst. Faizan deceased who had developed illicit connections with Shahra deceased. Thereafter, she eloped with Shahra deceased and started living in Bahawalpur. After some time she and her paramour had returned to Multan District. The parents and relatives of Mat. Faizan deceased tried to get her restored but Shahra deceased refused to return her. Allah Rakha appellant had stated that Mst. Faizan deceased was not married to Shahra deceased and they were living in sin. Thus, to vindicate his family honour he looked for an opportunity to finish both of them and this he eventually did. In our opinion, & this can be taken as an extenuating circumstance in his favour. Therefore, maintaining his conviction under section 302, P. P. C. We alter his sentence from death on two counts to imprisonment for life. In his case the application of section 148/149, P. P. C. Was uncalled for and, therefore, his conviction and sentence thereunder are hereby set aside. With this modification his appeal is dismissed.
10. The death sentence awarded to him on two counts is not confirmed.