' SAAD SAOOD JAN, J.---The respondents, Muhammad Amir and Muhammad Wazir, who are real brothers, were tried by the Sessions Judge at Muzaffargarh on two counts under section 302, read with section 34, Pakistan Penal Code, for causing the death of their sister, Mst. Hamida and Zafar Hussain Shah. The learned Sessions Judge convicted them of offence under section 304, Part I read with section 34, Pakistan Penal Code and sentenced them to suffer rigorous imprisonment for a period of ten years and to pay fines of Rs,10,000. They preferred an appeal against their convictions and sentences before the High Court. The learned Chief Justice who heard the appeal maintained their convictions but reduced the sentences to the period of imprisonment already suffered by them. The complainant party also filed a revision petition to call in question their acquittal on the charges under section 302 but it was dismissed. It has now preferred this appeal by special leave of this Court.
2. Mst. Hamida was married to one Manzoor. About a year before the occurrence she eloped with Zafar Hussain Shah. On the intervention of the Panchayat she was restored to the respondents about three months prior to the occurrence. Her husband later divorced her.
3. The deceased, Zafar Hussain Shah, was a resident of village Rana Vain on the bank of river Chenab. According to the prosecution on 20-9-1984 at about 4-30 p.m. He left for Rangpur which was across the river to attend a wedding. He was accompanied by his cousins, Zahoor Hussain Shah (P.W.9), Manzoor Hussain Shah (P.W.10) and Mst. Zubeda and a young nephew. At about 5-15 p.m. When the party was passing through the village of the respondents it heard a Lalkara raised by the respondents who were armed with hatchets and hiding in a cotton field. They shouted that they would teach Zafar Hussain Shah a lesson for abducting their sister. Immediately thereafter they attacked Zaffar Hussain Shah with their hatchets. After killing him they wrapped his body in his own loin-cloth and carried it to their Bhaini which was 750 Karams away. On reaching the Bhaini they dragged out Mst. Hamida and killed her also.
4. The incident was reported at Police Station Rangpur, which was five miles away, by Zahoor Hussain Shah (P.W.9) at 6-35 p.m.
5. The respondents were arrested on 28-9-1984. Five days later they assisted the investigating officer in the recovery of their blood-stained hatchets.
6. The post-mortem examination of Mst. Hamida showed that she had eight incised wounds on different parts of her body in addition to multiple small contusions and an abrasion. The post- mortem examination report of Zafar Hussain Shah indicated that he had 15 incised wounds. His right middle finger had also been cut off.
7. The respondents did not plead guilty to the charges against them. Muhammad Amir denied that he had anything to do with the attack on Zafar Hussain Shah or Mst. Hamida. Muhammad Wazir accepted the responsibility for causing their death. He stated that just before the attack he had seen them in a compromising position at the back of his house. He lost self-control and under grave and sudden provocation he picked up a hatchet and killed them.
8. At the trial the prosecution relied on the testimony of three eyewitnesses, namely, Zahoor Hussain Shah (P.W.9), Manzoor Hussain Shah (P.W.9) and Abdul Jabbar (P.W.11). For seeking corroboration of the ocular testimony it relied upon the recovery of the blood-stained hatchets from the two respondents. Zahoor Hussain Shah (P.W.9) who bore an injury on his person deposed about the attack on Zafar Hussain Shah. Abdul Jabbar (P.W.11) claimed to have seen the attack on Mst.
Hamida. Manzoor Hussain Shah (P.W.10) who was married to the sister of Zahoor Hussain Shah witnessed the attack on both deceased persons.
9. The learned trial Court was not sure if any of the three eye-witnesses was present at the scene of occurrence at the relevant time. It thought that the injury found on the person of Zahoor Hussain Shah (P.W.9) was probably self-suffered. It also expressed about whether the two deceased were killed at two different places as alleged by the prosecution. It accepted the defence version that just before the attack the two deceased were seen in a compromising position. It rejected the assertion of Muhammad Wazir that he had not participated in the occurrence. It gave the respondents benefit of Exception 1 to section 300, Pakistan Penal Code, and held that they were guilty of homicide not amounting to murder. After re-appraising the evidence the High Court upheld the plea of the respondents that they had killed the two deceased under grave and sudden provocation.
10. Leave to appeal was granted to examine, inter alia, whether the trial Court as well as the appellate Court had applied correct principles of criminal law in explaining--
(a) the recovery of blood-stained earth from the places 750 Karams away from each other, and
(b) the injury of Zahoor Hussain Shah (P.W.9) was possibly self-inflicted.
11. It is not disputed that immediately after the occurrence the dead bodies of the two deceased were lying at the same place near the Bhaini of the respondents. It is the case of the prosecution itself that they were lovers in the past. The vaginal swabs taken from the body of Mk. Hamida who was a divorced woman were found to be stained with semen. In the circumstances the assertion of the defence that just before the occurrence they were found in a compromising position cannot be ruled out as unlikely.
12. The investigating officer did state that he had recovered blood-stained earth from two different places but his statement has to be viewed in the light of the other evidence brought on the record.
The allegation of the prosecution that Zafar Hussain Shah was killed by the respondents near the cotton field and his body was taken by them in a bundle to their Bhaini was rejected by the trial Court with the following observation: "It is impossible that after killing Zafar Hussain Shah deceased, 'a stout man as mentioned in the inquest report', Amir accused had lifted his dead body on his head up to a distance of 750 Karams without interception by the said eye-witnesses and other persons of the locality."
' It is to be noticed that Zahoor Hussain Shah and Manzoor Hussain Shah were young men; the deceased was their first cousin and he was member of their party. The respondents were armed only with hatchets and it is unlikely that while carrying the dead body they would have been in a position to wield their hatchets at any person who tried to interfere. That being so, the story that Zafar Hussain Shah deceased was killed at one place and carried 750 Karams away seems improbable. As regards the injury of Zahoor Hussain Shah, the doctor who examined him was of the opinion that it could be self-suffered or caused by a friendly hand. The opinion of the doctor was not challenged by the prosecution at the trial. In the circumstances the mere fact that he had an injury on his body does not make his presence at the spot certain.
13. The principles which guide appeals against acquittal have been set out in some detail in the judgment of this Court in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). One of the principles is that this Court would interfere only in a case where the conclusion reached by the acquitting Court is such that no reasonable person would reach the same. The present appeal does not measure up to the test laid down in this judgment. We would accordingly dismiss it.