1. ' MIAN MUHAMMAD AJMAL, J.---Leave to appeal is sought against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 18-7-2001, whereby Criminal Appeal No,115 of 1999/BWP of Manzoor Ahmad, respondent was disposed of in the terms that his conviction was altered from section 302, P.P.C. To section 302(c), P.P.C. And his sentence was reduced from death to 15 years' R.I. With benefit of section 382-B, Cr.P.C.
2. Resume of the case is that Manzoor Ahmad, respondent and his brother Gharib Nawaz and relative Muhammad Siddique were tried by learned Sessions Judge, Rahim Yar Khan under section 302/34, P.P.C. For the murder of Falak Sher and Mst. Zahida. As per F.I.R. Lodged by Pathan Khan, he and Falak Sher went to Habib De Goth where Falak Sher had to pay money to Gharib Nawaz. They met Manzoor Ahmad, petitioner brother of Gharib Nawaz on reaching his Dera. In the meantime, Gharib Nawaz and Muhammad Siddique came there and started talking with them. Manzoor Ahmad left for his house and came back with a hatchet and gave a blow to Falak Sher hitting him on his neck. The complainant tried to intervene but Gharib Nawaz and Muhammad Siddique caught him and directed Manzoor Ahmad to inflict further blow, whereupon he repeated the blow and severed his head from the neck, as a result of which he died. Manzoor Ahmad then went to the house where he gave repeated blows to Mst. Zahida and killed her. They were accordingly charged for the double murder to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced 12 witnesses. The accused in their statements under section 342, Cr.P.C. Denied the allegations levelled against them. Manzoor Ahmad, respondent in his statement under section 342, Cr.P.C. Deposed:- "I live in Basti Habib De Goth with my brother Rab Nawaz together. Rab Nawaz was a Chowkidar in Sui Pipe Lines Installation at F.F.C. And used to stay their day and night. I was the custodian of his prestige and property as entrusted by him to me. On the day of occurrence I was harvesting wheat crop near my house. In the meanwhile I went to my house for taking food and water. While passing through the lane I heard whispering of a male and female coming out from my house. I rushed inside my house and saw Mst. Zahida wife of my brother Rab Nawaz in compromising position with Falak Sher. I lost my control and out of sudden and grave provocation picked up hatchet from inside my house. Before that they tried to escape I killed both of them in my house under grave and sudden provocation. None else was with me at that time."
2. ' They also produced Rab Nawaz as DMA.. The learned trial Judge on conclusion of the trial vide his judgment dated 17-7-1999 convicted Manzoor Ahmad, respondent under section 302, P.P.C. And sentenced him to death and to pay compensation of Rs,10,000 each to the legal heirs of the deceased Falak Sher and Mst. Zahida, respectively under section 544-A, Cr.P.C. Or in default thereof to undergo 6 months imprisonment. Vide the same judgment he acquitted, accused Gharib Nawaz and Muhammad Siddique by giving them the benefit of doubt. Manzoor Hussain, respondent challenged his conviction and sentence before the Lahore High Court, Bahawalpur Bench, Bahawalpur vide Criminal Appeal No,115 of 1999/BWP, the trial Court sent Murder Reference No,17 of 1999 for confirmation of his death sentence and the complainant filed Criminal Appeal No,131 of 1999/BWP against the acquittal of Gharib Nawaz and Muhammad Siddique. A learned Division Bench of the High Court vide its judgment dated 18-7-2001, impugned herein, converted the conviction of the respondent from section 302 to section 302(c), P.P.C. And reduced his sentence from death to 15 years' R.I. With benefit of section 382-B, Cr.P.C. The sentence of compensation was also set aside. The Murder Reference was accordingly answered in the negative and the criminal appeal filed by the complainant against acquittal of co-accused of the respondent was also dismissed.
3. We have heard the learned counsel for the petitioner and have gone through the record of the case. The prosecution and the defence version viewed in juxtaposition would suggest that the defence taken by the accused/respondent has weight, therefore, the learned Division Bench of the High Court was justified to alter the conviction of theaccused/respondent from section 302, P.P.C.
4. To section 302(c), P.P.C. And to reduce his sentence from death to 15 years' R.I. As the occurrence was committed under grave and sudden provocation. The High Court was also correct to observe that in view of inconsistent statements of the eye-witnesses, they were not present at the time of occurrence and they after receiving the information about the death of Falak Sher and Mst. Zahida came to the spot and keeping in view the injuries of the deceased charged the accused in a belated F.I.R. And no plausible explanation for delay could be put forth. According to Sufi Rahim Bakhsh P.W.6, the occurrence took place in the house of Rab Nawaz and both the dead bodies were lying in the courtyard of the house of Rab Nawaz at a distance of 2/3 feet from each other and at the time of occurrence the inmates of the house were not attracted to the spot. This deposition finds support from the statement of Muhammad Younis, S.-I. P.W.11 who in cross-examination admitted that both the dead bodies were lying in the courtyard of the house of Rab Nawaz at some distance from each other. Although attempt was made to show that the dead body of Falak Sher was lying away from the 'house of Rab Nawaz at Point No,1 which is an open place on the eastern side of the mosque but failed on account of overwhelming evidence to the effect that his dead body was found lying in front of. The room of Rab Nawaz. The learned High Court after evaluating the evidence of both the sides rightly concluded that the offence fell under section 302(c), P.P.C.
5. And accordingly reduced the sentence as aforesaid. The impugned judgment of the High Court does not suffer from any legal infirmity, therefore, no exception thereto can be taken.
6. This petition is accordingly dismissed and leave refused.