' Manzoor Ahmad appellant was sent up to face trial in case F.I.R. No,109 of 1997 registered at Police Station Rahimyar Khan for causing the murders of Mst. Sajida (wife of appellant) and Khurshid Ahmad. Vide judgment, dated 5-5-1999 handed down by Mr. Muhammad Siddique Garwah, learned Additional Sessions Judge, Rahimyar Khan, the appellant was convicted for offence under section 302(b), P.P.C. On two counts and sentenced him to imprisonment for life on each count. He was also directed to pay fine of Rs,25,000 on each count under section 544-A, Cr.P.C. In default of payment thereof the appellant/convict was to suffer six months' further S.I. On each count. In the event of realisation, the fine was to be paid to the legal heirs of both the deceased. The sentences were to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Through Criminal Appeal No,72 of 1999, Manzoor Ahmad has challenged his conviction and sentence, while Ghulam Rasool-complainant through Criminal Revision No,27 of 1999 has sought enhancement of sentence on each count. I propose to decide both these matters through this consolidated judgment.
3. F.I.R. No,109 of 1997 (Exh.P.H.) was registered at the instance of Ghulam Rasool P.W.5 by Altai Hussain, S.I.P.W.9 at Police Station Sadar, Rahimyar Khan, on 11-4-1997 at 8-30 a.m. For offence under section 302, P.P.C. According to F.I.R. The complainant lived in Basti Naurang Sangian. 7/8 years ago, he married his daughter Mst. Sajida deceased with Manzoor Ahmad, appellant, who resided in Basti Shaheen Mauza Fatehpur Punjabian within the territorial jurisdiction of Police Station Sadar Rahimyar Khan. Out of wedlock, one son and two daughters were born. However, the husband and wife used to quarrel with each other, while the complainant used to pacify both of them. Two days prior to the occurrence, the appellant went to the house of the complainant and brought Mst. Sajida back to his house. He also invited the complainant to attend Khatam ceremony on Thursday. On being invited, the complainant, his son Zahid Mahmood and Muhammad Saleem went to Mauza Fatehpur Punjabian. One day prior to the occurrence, in the evening, Khurshid Ahmad, a relative of the complainant, also joined the complainant party. The Khatam ceremony lasted till late in the night, therefore, the complainant, his son Zahid Mahmood and Muhammad Saleem decided to spend the night in the house of Mst. Sajida. At the instance of Manzoor Ahmad- appellant, Khurshid Ahmad also stayed in the house of the appellant. The complainant, his son and Muhammad Saleem slept in the compound of the house, while at the instance of Manzoor Ahmad, appellant, Khurshid Ahmad slept inside. At about 4-00 a.m. Complainant got up to ease himself and heard noise from inside of the house of Manzoor Ahmadappellant. He woke up Zahid Mahmood and Muhammad Saleem. Thereafter, the complainant party went inside the house and saw that Manzoor Ahmad, who was armed with a hatchet, was causing blows on the head of Khurshid Ahmad. Khurshid Ahmad fell on the ground. In the process of causing injuries, the handle of the hatchet was broken. Mst. Sajida got up and started moving inside to rescue Khurshid.
Manzoor Ahmad, after raising Lalkara, caught hold of Mst. Sajida, while she was in the compound, and gave injuries on her head with an iron Sabbal (an instrument used for digging). She also fell on the ground but due to threats issued by the appellant and due to fear, the complainant and the P.
Ws. Zahid Mahmood and Muhammad Saleem did not intervene. Khurshid Ahmad and Mst. Sajida succumbed to the injuries on the spot.
4. The motive behind the occurrence was that Manzoor Ahmad suspected illicit relationship between Khurshid Ahmad and Mst. Sajida, both deceased.
5. After registration of case, Altaf Hussain P.W.9 reached the scene of occurrence and after preparing inquest reports Exh.P.B./3 (Mst. Sajida) and Exh.P.J. (Khurshid Ahmad) and injuries statements sent the dead bodies to the hospital for their post-mortem examination. He collected blood-stained earth from underneath the dead body of Khurshid Ahmad vide memo. Exh.P.C., prepared by him and attested by Khadim Hussain P.W.4 and Sajid Mahmood (who was not produced during trial). He also collected blood-stained earth from the place where the dead body of Mst. Sajida was lying and secured the same vide memo. Exh.P.D. Attested by the witnesses mentioned above. The appellant was arrested on 24-4-1997 by Altaf Hussain S.-I. P.W.9. While in custody on 27-4-1997, he led to the recovery of blood-stained hatchet P.5 from a Khal (watercourse). The same was taken into possession vide memo. Exh.P.E., attested by the same witnesses. On the same date, he also led to the recovery of iron Sabbal P.6 which was hidden in bushes. The same was taken into possession vide memo. Exh.P.F., attested by the aforesaid witnesses. In addition to above-noted recoveries, the appellant, on the same date, also led to the recovery of blood-stained shirt P.7 and Shalwar P.8, which were taken into possession vide memo.
Exh.P.G. Attesting witnesses whereof remained the same.
6. As the appellant denied the charge and claimed to be tried, the trial commenced. During trial, prosecution produced fourteen witnesses in support of its case. Ghulam Rasool, father of. Mst.
Sajida deceased, and Muhammad Saleem, father of Khurshid Ahmad deceased, appeared as P.Ws. 5 and 6. They furnished the ocular account and also stated about the motive. Their statements are in line with the story given in the F.I.R. However, while stating about the motive, they came out with a different version than the one given in the F.I.R. By stating that there was a money dispute between Khurshid deceased and the appellant. Khadim Hussain P.W.4 stated about the recoveries effected at the instance of the appellant. Dr. Fauzia Rashid P.W.2 stated that she conducted post-mortem examination on the dead body of Mst. Sajida. According to her observations, Mst. Sajida had suffered three ante-mortem injuries two of which were caused by a sharp-edged weapon, while one was caused by a blunt weapon. According to her opinion, after receipt of injuries Mst. Sajida died within a few minutes. However, according to her, the time elapsed between the death and post-mortem examination was within eighteen hours. According to post-mortem report Exh.P.B., vaginal swabs were taken for the purposes of chemical examination. P.W.12 Dr. Muhammad Anwar conducted post-mortem examination on the dead body of Khurshid Ahmad on the same date, i,e, 11-4-1997. According to his observations, the deceased had received eight injuries on different parts of his body. Five of the injuries were caused by a sharp-edged weapon. According to his opinion, the deceased lost his life within one hour of the receipt of the injuries, while the duration between the death and post-mortem was within eighteen hours. Javed Hussain S.-I. P.W.13 stated about the partial investigation of the case. While Altaf Hussain, S.-I. P W.9 stated about the registration, investigation of the case thereafter, arrest of the accused and the recoveries at the instance of the accused. The rest of the witnesses are formal in nature and need not be discussed. After placing on record the reports of Chemical Examiner Exhs.P.N. P.O., P.P. And that of the Serologist Exhs.P.N./1, P.O./1, P.P./1 along with the report of the Chemical Examiner Exh.P.Q. Regarding swabs, the prosecution closed its case. According to Exh.P.Q., the swa bs were not stained with semen.
7. In his statement recorded under section 342, Cr.P.C. The appellant took a specific plea of grave and sudden provocation. According to him, the P.Ws. Were not present. His plea is being reproduced, for easy reference, hereunder:-- "I am innocent. The actual position is that during night between 10/11-4-1997 I along with my wife Mst. Sajida deceased was sleeping in the courtyard of my house. At about 2/3 a.m. I woke up and found my wife missing on her cot. I heard whispering from the room of my house. I pushed door of that room and saw that Mst. Sajida and Khurshid Ahmad deceased were in compromising position.
They were lying on a cot. I was suddenly provocated and lost my tamper and self-control. I picked up a Sabbal lying nearby and caused injuries on the persons of both the deceased, due to which, they died at the spot. I threw the weapon of offence at the spot and myself appeared before police at police station and narrated the whole incident. Police proceeded to the spot. P.Ws. Have not seen the occurrence. They were called from their residence by police. All recoveries are fake.
Prosecution has concocted a false story. Investigating Agency has conducted investigation mala fide at the instance of complainant. P.Ws. Are interested and inimical towards me. They are also relating inter se. I have acted under grave and sudden provocation and have also exercised my right of self-defence."
' However, neither the appellant appeared in his defence under section 340(2), Cr.P.C. Nor he produced any defence witnesses during trial.
8. Learned counsel for the appellant has argued that P.Ws. 5 and 6 were not only chance witnesses but also fathers of both the deceased; that their presence at the spot could not be proved during trial; that story advanced by the prosecution is not probable; that the P.Ws. Have made dishonest improvements while stating about the motive. The learned counsel has lastly argued that the defence plea was borne out from the circumstances of the case and, thus, the appellant deserved reduction in sentence.
9. Learned counsel appearing on behalf of the complainant has argued that the defence plea was an afterthought and was not suggested to P.Ws. 5 and 6 and was also not suggested to P.W.9; that the defence plea was also falsified by the following circumstances:--
(I) that the vaginal swa bs were not found to be stained with semen;
(II) that according to post-mortem reports, both the deceased were wearing their clothes and were not naked;
(III) that the dead body of Khurshid was lying in the room, while that of Mst. Sajida was lying in the compound; and
(IV) that it was a pre-planned murder because firstly, the appellant invited Khurshid deceased to his house and then committed the murders of his wife and Khurshid merely on the suspicion, thus, he deserves no leniency and is liable to normal penalty of death.
10. Learned counsel appearing on behalf of the State, while supporting the judgment passed by the learned trial Court, has adopted the line of arguments of the learned counsel for the complainant.
11. At this stage, learned counsel for the appellant was given notice as to why the amount of compensation be not suitably enhanced on each count. The learned counsel has accepted the notice.
12. I have heard the learned counsel for the parties and have scanned the entire record of the case.
13. Undeniably, P.Ws.5 and 6 and Zahid Mahmood (who was not produced during trial) lived in a different locality. As per their statements, the P.Ws. Along with deceased Khurshid had gone to the appellant's place of residence, in order to participate in Khatam ceremony and slept in the house of the appellant, as the Khatam ceremony lasted till late in the night. No independent witness has been produced to prove that indeed, any Khatam ceremony was held prior to the occurrence. Even the Investigating Officer/P.W.9 did not record the statement of any witness vis-a-vis Khatam ceremony nor he investigated the case on these lines. The above-noted facts coupled with the fact that the P.Ws. Who were very closely related to both the deceased, did not intervene at all and did not try to rescue both the deceased, especially when the appellant was not armed with a fire-arm and the handle of his hatchet was broken, cast doubt on the presence of the P.Ws. At the time of occurrence. It is also noteworthy that according to F.I.R. The motive behind the occurrence was that the appellant suspected illicit relationship between his wife and Khurshid. While during trial, P.W.5 made dishonest improvement by stating that he did not know why appellant committed murders of Mst. Sajida and Khurshid and by adding that the appellant owed Rs,40/45 thousands to the deceased and on demand of the said amount, the accused committed the murders. It appears that this improvement has been made after a lot of consultation, as the appellant would not like to invite the paramour of his wife to sleep in his house A nor the paramour would sleep in the house of the appellant when he knew that the appellant suspected illicit intimacy between the two. It was suggested to the P.Ws. That they were summoned from their houses by the Investigating Officer after the occurrence. This suggestion finds force from the fact that police station was at a distance of sixteen kilo metres (ten miles) from the spot, yet the report was lodged at 8-30 a.m. After about 4-1/2 hours of the occurrence. According to the complainant, he left for the police station on a bicycle owned by him. In that case, he would have covered the distance maximum within two hours and the matter could be reported to the police by 6-30 a.m. There is another noticeable dishonest improvement on the part of the complainant which I would like to mention here that according to F.I.R., complainant, Muhammad Saleem P.W.6 and Zahid Mahmood slept in the compound, while on the asking of Manzoor Ahmad, Khurshid Ahmad slept inside. Realising that there was no reason for the appellant to ask Khurshid to sleep inside, the complainant changed his version during trial by adding that Manzoor Ahmad appellant and Khurshid Ahmad went inside the house to sleep. In the above-noted circumstances, the prosecution has failed to prove beyond doubt that the P.Ws. Were present at the time of occurrence. But that is not end of the story.
Undeniably, Mst. Sajida and Khurshid were murdered inside the house of the appellant. Their dead bodies were recovered from there. The appellant took the plea of grave and sudden provocation during trial, while his statement was being recorded. That plea is borne out from the circumstances of the case to the extent that he had seen his wife Mst. Sajida and Khurshid together. The argument of the learned counsel for the complainant that the defence plea was taken on a belated stage is devoid of force, as, in the interest of justice, I have looked into the statement of the appellant recorded at the time of his arrest by the Investigating Officer, wherein he has taken the plea of sudden and grave provocation. However, the allegation of the appellant that he had seen both the deceased in compromising position is not made out from the circumstances of the case for the following reasons:--
(A) that both the deceased were wearing shirts and Shalwars; and
(B) that the swa bs were not found to be stained with semen.
14. In the circumstances, I alter the conviction of the appellant for causing the murders of Mst.
Sajida and Khurshid Ahmad from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C. On each count. The sentence inflicted upon the appellant is reduced to 14 years' R.I.
On each count. The sentences would run concurrently and the benefit of. Section 382-B, Cr.P.C.
Already extended to the appellant is maintained. The fine could not be imposed upon the appellant under the provisions of law and is set aside. However, the appellant is directed to pay compensation amounting to Rupees one lac on each count, as contemplated by section 544-A, Cr.P.C. To the legal heirs of both the deceased. The amount of compensation would be recovered as arrears of land revenue as provided by subsection (2) of section 544-A, Cr.P.C. In case of default in payment of amount or recovery thereof, the appellant would suffer further imprisonment of six months on each count.
15. This appeal stands dismissed, of course, with the above modification/reduction in sentence.
16. For the above-noted reasons, I find no merit in the criminal revision and the same is dismissed.