' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 26-9-2001 whereby the learned Additional Sessions Judge, Lodhran, has convicted and sentenced the appellate Shah Muhammad for offence under section 302(b), P.P.C. To death for having committed the double murder of Mst. Ghulam Sakina and Muhammad Rafiq. Murder Reference No.736 of 2001, seeking confirmation or otherwise of death sentence is also before us. Both these matters are being decided by this judgment.
2. Briefly, the facts of the case, as narrated by Abdul Hameed-complainant in F.I.R. (Exh.PM), are that on 9-9-2000 during night he along with his brother-in-law Shah Muhammad, Sudan and Ali Muhammad was sleeping in the open place outside the house of Shah Muhammad when at about 12-00 night, on hearing hue and cry, he woke up and saw the main gate of the house open. He along with Sudan and Ali Muhammad entered the house and saw Shah Muhammad, while armed with rifle, standing and within their view Shah. After hearing the learned counsel for the parties it is found that sentences awarded to the petitioners/appellants are short. As the petitioners have undergone a substantial portion of their sentences, the -unserved portion of the sentences are brief within which time it is not likely that the appeal shall be taken up for regular hearing. In case the petitioners served out the senteaccused, in circumstances was converted to Muhammad fired at Rafiq Sial and his wife offence under S. 302(c), P. P. C. And Mst. Sakina Bibi, who were in sentence which he had undergone, was objectionable condition. Both of them considered sufficient to meet the ends of succumbed to the injuries at the spot. Nces before the appeal is heard, the same shall be rendered infructuous.
3. As to the motive, it was alleged that a month earlier to the occurrence, Rafiq Sial had outraged the modesty of Mst. Sakina, whereupon case bearing F.I.R. No.143 of 2000, offence under section 354, P.P.C. Was registered against him and the matter was pending before the Court. However, subsequently, Rafiq Sial developed illicit intimacy with Mst. Sakina and on the fateful night, he had come to the house of his broth-in-law to commit Zina with her and on seeing both together, his brother-in-law, who had already such suspicions in his mind against them, had murdered them under grave and sudden provocation.
4. After registration of formal F.I.R., Sh. Muhammad Aslam, S.-I./P.W.8, went to the place of occurrence, prepared injury statements Exh.PF and Exh.PC of deceased Mst. Sakina and Rafiq respectively and sent the dead bodies for post-mortem examination. He collected blood-stained earth from the place of murder of Mst. Sakina through memo. Exh.PJ. He also secured blood through a cotton piece from the place of Murder of Muhammad Rafiq vide memo. Exh.PK. He took into possession five crime empties of 7-mm rifle from the place of occurrence through memo.
Exh.PL. After post-mortem examination, he took into possession the blood-stained clothes of Mst.
Sakina Bibi through memo. Exh.PO. And that of Muhammad Rafiq through memo. Exh.PP. The appellant was arrested on 19-9-2000 and on 20-9-2000, while in custody, led to the recovery of 7- mm rifle P-1 from his residence, which was unloaded and four bullets P-2 to P-5 were found in its chamber, which were taken into possession through memo. Exh.PA. After completion of investigation, the appellant was challaned to face the trial.
5. In support of its case at the trial, the prosecution examined nine witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PS and Forensic Science Laboratory Exh. PT, closed its side. Thereafter, the appellant in his statement under section 342, Cr.P.C. Took up the plea of grave and sudden provocation.
6. Learned counsel for the appellant, in support of this appeal, submits that there were two eye- witnesses, namely, Abdul Hameed-complainant, who was real brother of Mst. Sakina (deceased) and one Ali Muhammad; that Abdul Hameed never appeared before the trial Court; that it is the case of the prosecution itself in the F.I.R. That on the day of occurrence, Abdul Hameed visited the house of his brother-in-law and at about midnight on seeing both the deceased in compromising position, the appellant, under grave and sudden provocation, committed their murder; that the appellant is behind the bars since the date of his arrest, i.e. 19-9-2000 and has, thus, undergone more than five years of sentence. According to the learned counsel, his conviction is liable to be converted from offence under section 302(b), P.P.C. To offence under 302(c), P.P.C. And the sentence which he has already undergone would meet the ends of justice.
7. Conversely, learned counsel for the State submits that he has no other option except to state that the appellant had committed the murder of the deceased under grave and sudden provocation.
8. We have heard the learned counsel for the parties and have gone through the record with their assistance.
9. We would not like to dilate on the eye-witness account, as the complainant had not appeared before the trial Court. It is the case of the prosecution itself that the appellant had committed the murder of the deceased, as he saw both of them in compromising position. The time is midnight.
The place of occurrence is the house of the appellant. The complainant is the real brother of one of the deceased Mst. Sakina. He himself states in the F.I.R. That his brother-in-law committed the murder of the deceased under grave and sudden provocation. In these circumstances, this, in our considered view, is not a case attracting the provisions of offence under section 302(b), P.P.C.
Accordingly, we convert the conviction of the appellant to offence under section 302(c), P.P.C. And the sentence which he has undergone would be sufficient to meet the ends of justice. No compensation in such-like cases is called for, as held by the Honorable Supreme Court in the case of Miran Begum v. Ejaz Anwar and others (PLD 1982 SC 294). He shall be released forthwith, if not required in any other case. The death sentence is NOT confirmed.
10. Both the appeal as well as the murder reference stand disposed of accordingly.