' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,79 of 2001 filed by Sualeen and Criminal Appeal No,80 of 2001 filed by Mazhar, appellants. Both the appellants were convicted and sentenced vide judgment dated 20-11-2000 delivered by learned Additional Sessions Judge, Faisalabad as under:-- ' Imprisonment for life and to pay a fine of Rs,30,000 in default six months' S.-I. Each under section 302(b), P.P.P. The benefit of section 382-B, Cr.P.C. Was also extended in favour of both the appellants.
' Criminal Revision No,54 of 2001 filed by the complainant for enhancement of sentence of the appellants shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that complainant Murid Abbass who was employed in Government High School No,1, Sahiwal as security guard lodged complaint at 9-30 a.m. On 13-9- 1996 alleging therein that Mst. Amna, his sister was married about 12/13 years ago with one Sualeen; Mst. Amna Bibi had a daughter namely Mst. Naseem Bibi from her first husband Muhammad Iqbal; the said Naseem Bibi was married with Mazhar six months ago. Sualeen and Mazhar had some suspicion about the character of Mst. Amna and Mst. Naseem Bibi, due to which they used to quarrel; a night prior to the day of occurrence, Murid along with Nasir and Allah Ditta went to the house of Sualeen and Mazhar in the village; the complainant and he accomplices advised all the fours, Sualeen, Mazhar, Mst. Amna and Mst. Nasim Bibi not to quarrel as it was not good; they also advised both the ladies to refrain from indulging in bad activities; the complainant along with accomplices slept in the bazaar in front of the house; at about 1 mid-night, they heard the noise entered into the house where the electric bulb was on and witnessed that Mazhar was pressing the throat of his wife Mst. Naseem while Sualeen was cutting the throat of his wife namely Mst.. Amna and on seeing the complainant and his accomplices, both the accused ran away from the spot. Both the ladies died at the spot.
3. Noor Muhammad, Sub-Inspector (P.W.9) took over the investigation. He proceeded to the spot, prepared injury statement, Exh.P.J. Of Mst. Naseem Bibi, inquest report Exh.P.K., also prepared injury statement Exh.P.L. And inquest report Exh.P.M. In respect of dead body of Mst. Amna. He then inspected the place of occurrence, took into possession the blood-stained earth vide memo.
Exh.P.B. Last-worn clothes of both the deceased were also secured. Both the accused were arrested on 3-7-1996. Sualeen accused while in custody led the police to the recovery of Churri P.1 that was taken into possession vide memo. Exh.P.C. After completion of investigation, both the accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced nine witnesses in all. The learned D.D.A. Tendered in evidence reports of the Chemical Examiner (Exit. P. P. , Exh. P.R. ), reports of the Serologist (Exh. P Q , Exh. P.S. ) and closed the evidence of prosecution. Accused in their statements under section 342, Cr.P.C. Took up the plea of having committed murder of the deceased under grave and provocation. After conclusion of the trial both the accused were convicted and sentenced as stated above.
5. Criminal Appeal No,80 of 2001 was filed by Ch: Muhammad Wasi Zafar, Advocate. Today, he is not present. Raja Arif, Advocate representing the appellant in connected Criminal Appeal No,79 of 2001 submitted that he would also argue the appeal of Mazhar appellant in Criminal Appeal No,80 of 2001. Even otherwise, case of both the appellants is at par.
6. Learned counsel for the appellants at the very outset submitted that he would be satisfied if sentence of both the appellants which they have already undergone is treated to be sufficient to meet the ends of justice as according to him, both the appellants having seen both the deceased ladies while committing sexual intercourse with Riaz Lashari and Mazhar, committed murder of the deceased ladies under grave and sudden provocation. As to merits of the case, he submitted that both the eye-witnesses were not present at the spot and they are cooked up witnesses and that the Churri was planted upon Sualeen appellant.
7. Learned counsel for the State assisted by learned counsel for the complainant who has also filed Criminal Revision No,54 of 2001 submitted that it was not a case of grave and . Sudden provocation as there was not a single' injury on the person of both the persons who were allegedly committing sexual intercourse with the deceased ladies; both the eyewitnesses were present at the spot; mere relationship of the P. Ws. With the deceased or the complainant is no criteria to discard their evidence, so according to learned counsel for the State, the judgment of the learned trial Court does not call for any interference while learned counsel for the complainant requests for enhancement of sentence of both the Convict appellants.
8. I have heard learned counsel for the parties and have gone through the record with their able assistance. The murder of both the deceased ladies has been admitted by both the appellants.
The only question begging determination is whether the appellants acted under grave and sudden provocation or not? To resolve this, I would like to reproduce answer to question No,8 given by Sualeen accused in his tatement under section 342, Cr.P.C.
"I was married with Mst. Amna Bibi deceased. It was second marriage of Mst. Amna with me. Out of this wedlock, she gave birth to two children, one boy and one girl who are alive. Both the deceased ladies, i.e, my wife Mst. Amna Bibi and Mst. Naseem Bibi wife of my co-accused Sualeen/my step- daughter/real daughter of my wife Mst. Amna Bibi were of bad character. We oftenly heard about their objectionable activities from the so many people of the village. Even my deceased wife Mst.
Amna Bibi was arrested by the police of Tandlianwala and she was got released by, Riaz Lambardar of our village, a joint relative also of ours. I along with my co-accused tried to make them, understand at our levels best individually and jointly to leave the bad habits and even the complainant Mureed Abbas also tried his best for the same but fruitless. On fateful night, I and my co-accused Mazhar when came back to our residential house after finishing the labour, at about mid-night and when we entered inside the room, we found both the ladies in very objectionable condition with Riaz Lashari and Mazhar, both residents of our vicinity upon their respective cots. My both the children were with their Taya namely Ifrahim at Sahiwal. My co-accused Mazhar raised Lalkara and both male decamped themselves from the scene of occurrence. I being a Muslim and due to "Ghairat" lost control over my senses. I picked up a Churri lying nearby and under sudden and grave provocation, gave blows upon the person of my wife. And when I regained my senses, I found her dead. I also found the dead body of Mst. Naseem my step-daughter and wife of my co- accused Mazhar. Then we proceeded to Riaz Lambardar and narrated the whole matter and also produced Churri who on the following day, produced us before the police and also handed over the Churri to him.
' P. Ws. Are interrelated to each other and they were not present at the spot. They came on the following morning d with the connivance of the police, became witnesses and police just to show efficiency introduced them as eyewitnesses."
' To the same effect did Mazhar co-appellant give the reply. It is settled law that when an accused takes a specific plea and wants to bring his case under section 302(c) or within any of the exceptions of section 300 as it was before commencement of the Qisas and Diyat Ordinance, the onus lies upon him as required under Article 121 of the Qanun-eShahadat Order to prove the said specific plea. In the instant case, in my considered opinion, both the appellants have failed to discharge the said onus. The occurrence took place on 13-6-1996, according to police record, they were arrested on 3-7-1996, Sualeen appellant led to the recovery of blood-stained Churri and it was not the version of any of the appellants during the course of investigation which they took before the trial Court. Had their version been the same, which they took before the trial Court, they must have put some question in this regard to the Investigating Officer. The cross-examination of the Investigating Officer has been read before me but not a single question was put to him. Both the appellants also stated that Riaz Lambardar produced them before the police but even said Lambardar was not produced. If for the sake of arguments, it is admitted that the eye-witnesses were not present at the spot, the fact remains that the appellants after having admitted the offence, discharged the onus of raising specific plea of having acted under grave and sudden provocation, the answer is big No, ' Both the male members namely Riaz Lashari and Mazhar who were found by the appellants in compromising position with the deceased ladies were empty-handed while Sualeen was armed with a knife, but he did not cause even a single injury to any of those persons. During the course of postmortem examination on dead bodies of both the deceased ladies, no semen was found on their private parts of bodies.
' Having analyzed the case from all aggles, I am of the considered opinion that the prosecution has been successful in proving its case against the appellants to its hilt and the defence version of the appellants is afterthought and not proved from the record of the case. Both the appeals being without any force are dismissed. The conviction and sentence recorded against both the appellants by the trial Court is maintained in toto.
' As far as Criminal Revision filed by the complainant is concerned, I have gone through the reasons given by the trial Court for awarding lesser punishment. At this stage, I would not like to interfere with the same. So the revision is also dismissed.