JUDGMENT

1. In this case two accused persons, Isso, son of Gaman and Ghulam Hussain, son of Golo, both Khosas by caste, have been convicted by the Sessions Judge of Sukkur of the double murder of a man named Gahi and a woman named Mariam, and each has been sentenced to death. The accused have appealed and their cases have also come before us for confirmation of the death sentences. So far as Ghulam Hussain is concerned, the learned Judge has passed the sentence of death on the assumption that under Section 341, Criminal P.C., he is empowered in the case of a man who is deaf and dumb not only to convict but to pass sentence. So for as Isso is concerned, the learned Judge rejected his case that he alone murdered this man and woman, because he found them in the act of illicit intercourse.

2. The case for the prosecution is that the deceased Gahi lived in a hut in his field in Deh Jiskanil; near the hut was a well belonging to him and the accused Isso, who is the brother of the woman Mariam who was murdered. Isso was a partner in the well with Gahi. With Gahi also lived his daughter Arab Khatun, her husband and their son Kaiser. A year before these murders, a nephew of Gahi, the accused Ghulam Hussain, was also living with Gahi. It is the case of the prosecution that Gahi and Ghulam Hussain quarrelled about the partition of certain land; Gahi would not give Ghulam Hussain his half share and so Ghulam Hussain left the house of Gahi and went to work as a hari for a neighbouring zamindar, Khawindbux Khan. When Ghulam Hussain left the house of Gahi, he left also his second wife Mariam. Ghulam Hussain had first married one Mt. Sumri by whom he had a child named Gul Khatun. But Sumri had divorced Ghulam Hussain and married elsewhere. Gul Khatun, however, remained with Gahi in his house and after her father Ghulam Hussain left Gahi's house, she continued to stay with Gahi. There was also living in the house of Gahi, one Mt. Sami, the third or fourth wife of Gahi. Gahi had a son and daughter by Mt Sami and this son and daughter were betrothed to the daughter and son of the accused Isso some six months before the occurrence. One of the motives put forward by the prosecution for this crime is that Isso the accused had indecently assaulted Mt. Sami; Mt. Sami complained to Gahi and Gahi in turn complained to his Sardar and Isso was fined as. 300 by the brotherhood, which amount was duly paid by Isso. On this account therefore, it was suggested that Isso bore a grudge against Gahi and Ghulam Hussain, it is suggested, bore a grudge against Gahi because the latter would not partition the land. But neither of these motives explains the murder of Mariam. Rightly or wrongly, it would appear from all the circumstances of this case that this was a karo-kari murder and that Isso and those who assisted him in this crime, if others really there were, did so because they suspected, with or without reason, an illicit intimacy between Gahi and Mariam, who was living in Gahi's house in the absence of her husband Ghulam Hussain. The murders took place in the morning of 17th March 1942.

3. According to the prosecution Gahi was sitting at his well twisting a rope. The well is shaded over and has walls on three sides, the fourth being open Mt. Sami, wife of Gahi, was at that time driving the bullocks. Suddenly, accused Isso and Ghulam Hussain, and one other Chhuto, who is absconding, appeared. Isso was armed with a sword, Chhuto and Ghulam Hussain had hatchets. They came at once and assaulted Gahi; Gahi began to run towards his house, but he was pursued and given further blows. His wife Mt. Sami followed, raising cries and Gahi fell down dead near the entrance of his house. Mt. Sami tried to intervene to save her husband, but she herself was injured by the sword of Isso. There were other eyewitnesses to the murder of Gahi besides Mt. Sami. One was Mt. Arbab Khatun the daughter of Gahi, who was coming out of her house to fill a water jar when Gahi was assaulted in