JUDGMENT

Shadi Lal, C J - Two brothers, Muhammad Yar and Allah Yar, residents of Mauza Jahl in the Mianwali District, have been convicted of the murder of one Fateh Khan of the same village, and have been sentenced to death each. It is beyond dispute that the deceased Fateh Khan was subjected to a brutal assault on the night of the 8th or 9th January 1922 while he was in the Kotha occupied by the prisoners mother Mt. Sabhai and her three daughters.' There can be no doubt that these ladies must have seen the assault and are fully cognizant of the circumstances which resulted in the death of the victim. Two of the three daughters are, however, deaf and mute, and the third Mt. Sahiban has appeared as a witness, for the defence and supported the plea set up by her brother Muhammad Yar which will be discussed hereinafter. The mother Mt. Sabhai has preferred to keep quiet and has given no information of what actually took place on the fateful night.

2. The victim's brother Nura deposes that one of the mute daughters came to his house at about midnight and made signs which were interpreted by him to mean that her brothers with two other men had tied Fateh Khan in the house and were beating him. Nura, there upon, went to the lambardar, Fateh Sher, and then proceeded with him to the house of Mt. Sabhai. The lambardar, however, advised him to remain outside and went in himself and found Fateh Khan lying wounded on a charpoy. He then sent Nura to the police-station at Piplan about one Kos from the village where the latter recorded' the first information report at about 2 a.m. accusing both the prisoners of assaulting his brother Fateh Khan.

3. It appears that the victim succumbed at about 3 a.m. to his injuries which consisted of numerous bruises and other simple hurts and a deep incised wound causing fracture of the skull. This fatal injury on the head was, in the opinion of the medical witness, due to more than one blow inflicted with a sharp-edged weapon.

4. The story for the prosecution is to the effect that the deceased Fateh Khan was anxious to marry Mt. Sahiban, and that, while her mother Mt. Sabhai was in favour of the match and is said to have received gold worth Rs. 300 from her prospective son-in-law, the, elder brother Muhammad Yar was entirely opposed to the proposal and intended to marry his sister to a person who was in a position to give in exchange a bride for his younger brother Allah Yar who was a bachelor, Fateh Khan, however, used to visit the house of Mt. Sabhai, and it is alleged that, while he was there, on the night in question, he was assaulted by the two prisoners in concert with two other persons who have been acquitted by the learned Sessions Judge.

5. Now We may clear the ground by stating at once that there is no eyewitness of the affair, and all the case for the prosecution rests wholly upon circumstantial evidence. The evidence of the witnesses Jiwan; Ghulaman and Fateh Sher leaves no doubt whatsoever that, when they and other persons went to the house at about 2 a.m. on that night, Fateh Khan was lying wounded on a charpoy with Muhammad Yar standing near him and Allah Yar standing in the door-way of the Kotha, Jiwan also says that Muhammad Yar told him that he had beaten Fateh Khan because the latter had a illicit intimacy with his sister. It is further proved that Muhammad Yar was at that time wearing a chadar and a Kurta both of which bore marks of blood' and he had blood stains also on his feet and calves, and that his brother Allah Yar's chadar and feet were stained with blood. Moreover, we have evidence to the effect that the deceased had been paying attentions to their sister, and that this conduct on his part was resented by the brothers.

6. Now, Allah Yar protests his innocence and denies altogether his participation in the assault, and we do not think that the circumstances narrated above, which are the only evidence relied upon by the prosecution in support of the conviction, satisfy the test which h