' M. BILAL KHAN, J.-This Criminal Appeal bearing No 135-2000 is directed against the judgment, dated 29-1-2000 passed by the learned Addl. Sessions Judge Sheikhupura whereby he convicted Miihammad Imran accused/ appellant under section 302(a), P.P.C. And sentenced him to death on two counts. The other three co-accused namely Sattari, Shamim Bibi and Muhammad Tufail were emancipated from the charge by extending to them the benefit of doubt. The learned trial Court sent Murder Reference No,60 of 2000 to this Court for confirmation of death sentence awarded to accused Muhammad Imran. Both these matters i.e, Criminal Appeal No, 135 of 2000 and Murder Reference No,60 of 2000 are being disposed of through this judgment.
2. Briefly stated the facts of the prosecution case as disclosed in the complaint Ex.PA and F.I.R.
Ex.PA/1 by the complainant Salamat Bibi were that the complainant was residing in village Kaluwara along with her two daughters named Akbari Bibi aged 40 years and Sarwari Bibi aged 25/26 years and her only son Ali Akbar had gone to Saudi Arabia. Her elder daughter Akbari Bibi's Nikah had been solemnized with Abdul Sattar father of the appellant Muhammad Imran about 15/16 years ago but Rukhsati had yet not taken place. Besides accused Muhammad Imran, the said Abdul Sattar had a girl from his previous wife. On the fateful day i.e, 4-2-1996 at about 5-40 p.m, Sarwari Bibi the younger daughter of the complainant was cutting fodder from the field near the Haveli of Abdul Sattar whereas the elder daughter Akbari Bibi had gone to throw dung on the dung hill. At that time the complainant Salamat Bibi was sitting with Sarwari Bibi. Abaid-ur-Rehman P.W.
Who was a guest of the complainant and Sarwar son of Manzoor were talking at some distance. At that time accused Muhammad Imran and Muhammad Tufail came there both armed with 12 bore guns. Imran asked Akbari Bibi that he would teach her a lesson for marrying with his father Abdul Sattar with a view to grabbing his property and fired a shot hitting Akbari Bibi on her chest near the left shoulder. Sarwari Bibi rushed to the scene whereupon Muhammad Tufail fired a shot with his 12 bore gun hitting Sarwari Bibi on her left hand and right temporal region. Both the injured fell down and died. The motive behind this occurrence as narrated in the F.I.R. Was that Imran accused and his mother Sattari Bibi along with Muhammad Tufail and his wife Shamim had developed grudge due to the marriage of Akbari Bibi with Abdul Sattar and these four accused by hatching a conspiracy had killed both the daughters of the complainant.
3. Regarding this incident F.I.R. No, 30 dated 4-2-1996 was recorded at Police Station Mananwala under sections 302, 109, 34, P.P.G, whereafter the local police arrested the accused Muhammad Tufail, whereas both the accused ladies secured their bail. The accused Muhammad Imran remained fugitive from law w.e.f, 4-2-1996 to 26-9-1998. During investigation Sattari Bibi, Shamim and Muhammad Tufail were found innocent, but during final investigation, they were held guilty. On 10-8-1998 Sattari Bibi died in an accident. On 6-2-1999 charge was framed against the three accused under sections 302/109/34, P.P.C. To which they pleaded not guilty and claimed trial.
4. On 5-2-1996 Dr. Iftikhar Ahmad P.W. 12 conducted postmortem examination in D.H.Q. Hospital Sheikhupura on the dead body, of Sarwari Bibi and found following injuries:
(1) Eight fire-arm punctured wounds each 1 cm in dia X DNP on front and upper left chest, 6 cm above left nipple, in area of 10 c.m. x 6 c.m.
(2) Three fire-arm punctured wounds each 1 cm in dia x DNP on back and upper right chest in area 5 cm x 2 c.m, edges were everted.
(3) Fire-arm lacerated wound 10 cm x 6 cm x bone deep outer and back left hand and underneath, all metacarpal bones were fractured.
All injuries were caused by fire- arm and were ante mortem. In the opinion of doctor death occurred due to shock, asphyxia and haemorrhage due to injuries Nos.l and 2 which were sufficient to cause death in the ordinary course of nature.
5. On the same day the same doctor conducted postmortem examination on the dead body of Akbari Bibi and following injuries were found on her person:
(1) Fire-arm wound of entry 3 cm in dia x DNP front and upper left chest, 11 cm above left nipple.
(2) Fire-arm wounds of exit each 1cm in dia x DNP on back and mid chest. All the injuries were ante- mortem and were caused with firearm. In the opinion of doctor death occurred due to shock,' asphyxia and haemorrhage due to injures Nos.l and 2 which were sufficient to cause death in the ordinary course of nature.
6. During the I trial the prosecution produced as many as 16 witnesses in support of its case against the appellant. P.W.4 Salamat Bibi complainant, P.W.5 Muhammad Sarwar and and P.W.6 Abaid-ur- Rehman furnished the ocular account of the incident in question, Salamat Bibi (P.W.4)''also deposed about Amanullah S.-I and P.W. 15 Manzoor Ahmad Inspector 1.0 and P.W. 16 Sikandar Ijaz Inspector 1.0 were recovery witnesses. Dr. Iftikhar Ahmad P.W. 12 who conducted postmortem examination on the dead bodies of the deceased provided medical evidence. Both the I.Os P.W. 15 and P.W.16 deposed about the various steps taken by them during the investigation of this case.
The remaining evidence produced by the prosecution was more or less of formal nature.
7. After the close of prosecution case the accused persons were examined under section 342, Cr.P.C. They all pleaded not guilty. To a question as to why this case against him and why the P.Ws.
Deposed against him, the accused/appellant Muhammad Imran answered as below: ' "I am innocent. The motive against me is false. No body had seen the occurrence. The occurrence had , not taken place in the manner in which it has been alleged. In fact the occurrence has taken place in the dark hours of night at about 8-00 p.m'. I was present at my Haveli situated near the place of occurrence, on hearing the barking of dogs I came out of my Haveli holding a double barrel shot gun. I was attracted to the side of. Barking. In the meanwhile, I heard murmering in the fields, I inquired by shouting as to who were there, whereupon a man suddenly started running to my opposite direction, holding a loin cloth (Teh Band). I could not identify him as his back was towards me, and there was darkness of night. I went ahead and was shocked to find Mst. Akbari Bibi, my step mother, in a semi naked condition and also saw Mst. Sarwari Bibi in suspicious circumstances. In this situation I lost my senses, in the heat of passion and in order to vindicate the family honour, due to sudden and grave provocation I fired with my gun which hit both the deceased. Mst. Akbari Bibi fell to the ground and died there, while Sarwari Bibi also fell down and died after covering some distance. The complainant after due deliberation and consultation lodged a false case against me with a concocted story. Nobody was with me at the scene of occurrence nor the occurrence took place at the abetment of co-accused. The occurrence took place at the spur of moment without any intention. After the occurrence I never absconded. I took the same plea before the police, but the police was in league with the opposite party and the same was not brought on the record properly. Anyhow the attending ambient circumstances of the case support my version. The P.Ws. Have made their statements under the influence of the complainant on them. Further more Muhammad Sarwar Khan P.W. Is inimical towards me, just as the complainant is inimical towards me."
' The accused did not opt to make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in his defence.
8. At the conclusion of the trial the learned trial Court found the prosecution case against the appellant Muhammad Imran to have been proved beyond reasonable doubt and thus the appellant was convicted and sentenced by it as mentioned in detail hereinabove. The other three coaccused namely Sattari, Shamim Bibi and Muhammad Tufail were acquitted of the charge by extending to them the benefit of the doubt. Hence the present appeal and the connected Murder Reference before this Court.
9. The learned counsel for the appellant has argued that the conviction and sentence of the appellant under section 302(b), P.P.C. Is absolutely illegal and that the learned trial Court has not been able to appreciate the stance of the appellant as taken by him in his statement. He argued that the statement made by the appellant under section 342, Cr.P.C was fully in consonance with the facts and circumstances of the case. It was argued that the appellant had admitted to have killed the deceased females under grave and sudden provocation of having seen one of them namely Akbari Bibi his stepmother in a semi-naked condition while her sister Sarwari Bibi was also present with her in suspicious circumstances. He argued that the plea taken by the appellant was spelled out from the evidence and the said plea was neither imaginary nor artificial. He added that the eyewitnesses of the occurrence Were admittedly chance witnesses and not only that but they were also inimical. It was pointed out by the learned counsel for the appellant that the presence of the complainant namely Salamat Bibi at the alleged scene of occurrence was not natural and that even otherwise in view of her old age and infirmity she could not have seen the occurrence herself.
The learned counsel added that the motive as set up by the prosecution was very weak and it cannot be said that the said motive was sufficient enough to compel the appellant to have acted in the manner as alleged. It was finally argued that the medical evidence fully supported the version as put forward by the appellant in his statement under section 342, Cr.P.C. On the other hand learned counsel for the complainant Ch. Ghulam Mustafa Bandesha and Ch. Muhammad Nazeer learned counsel for the State argued that the prosecution has been able to bring home the charge of Qatl-e-amd against the appellant to the hilt and that his statements under section 342 Cr.P.C was an afterthought and did not fit into the facts and circumstances of the case. They further argued that two helpless ladies had been done to death and the plea of grave and sudden provocation was not available to the appellant.
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and have also gone through the evidence. Insofar as the ocular account is concerned three eyewitnesses had been produced by the prosecution namely Salamat Bibi P.W.4, Muhammad Sarwar P.W.5 and Abaid-ur- Rehman P.W.
6. Salamat Bibi is also the complainant of the case and happened to be the mother of the two deceased women. It was admittedly first day of Ramzan and the occurrence had taken place on 4- 2-1996. The beginning of February is one of the coldest parts of the year and the presence of Mst.
Salamat Bibi and the deceased ladies at 5-40 in the evening for cutting fodder does not appear to be very plausible when according to Mst. Salamat Bibi herself "deep darkness had taken place when the occurrence took place". Their presence in the open field shortly after Aftaar time does not appeal to reason, moreso when the complainant according to her own showing was an elderly, sick and infirm lady of more than 75 years of age. During her cross-examination she also stated that the police did not take into possession any sickle or sheet of cloth or any other implement for cutting fodder or any fodder from the place of occurrence. She also stated that the police also did not take into possession any Dabra (container for carrying cow dung) which according to Salamat Bibi had fallen down by the side of the body of Akbari Bibi when she had received injuries. The statement of Mst. Salamat Bibi P.W. Does not inspire confidence and she had made noticeable improvements in her deposition before the Court from the story as put forward in the F I R.
Regarding the appearance of the accused persons namely Imran and Tufail from Haveli, the manner in which the injuries had been received and the locale thereof. Similarly the eyewitness account furnished by Muhammad Sarwar P.W.5 and Abaid-ur Rehman P.W.6 also suffered from inherent weakness and infirmity. Both the eyewitnesses are chance witnesses. Muhammad Sarwar P.W.5 is a resident of village Manawala which is 3 Vi miles away from the place of occurrence. The reason advanced by him for his presence at the place of occurrence was that he had gone to the place of occurrence in the evening from Manawala for the purpose of fetching milk. The reason given by him is not very convincing inasmuch as in a cold evening in the month of Ramzan leaving his place of residence immediately after Aftaar to fetch milk and going to a place 3/4 miles away is not quite plausible. Even otherwise this witness also admitted that he was on visiting terms with the complainant party for the last 8/10 years. This witness had also made significant improvements. He stated that he had seen the accused persons * from a distance of 30/40 karams and neither he nor Abaid-ur Rehman P.W. Made any attempt to apprehend the accused persons at any stage of the occurrence or even before that. He also admitted that none from village Kaluwara where occurrence had taken place had appeared as a witness although it was thickly populated village.
In his cross-examination he also admitted that he and his brothers were involved in a large number of criminal cases including cases under section 302, P.P.C. And that two of his brothers were proclaimed offenders. It was suggested to him that the father of Imran appellant had forbidden l\is brothers from visiting their village as they were men of dubious credentials which had caused annoyance to him and his brothers and on account of this he had falsely deposed against the appellant. Insofar as P.W.6 Abaid-ur Rehman is concerned he is a resident of village Tatleaali District Gujranwala which is at a distance of 70 miles from the place of occurrence. He claimed to be a close friend of Ali Akbar, a broker of the deceased women, the son of Salamat Bibi complainant, who was living abroad. He stated that he had come to visit the complainant Mst.
Salamat Bibi a day prior to the occurrence and was staying at her house. In his cross-examination he admitted that there was no male member of the family who lived with Salamat Bibi and her deceased daughters. He was not related to tljem and also did not belong to their baradri. The presence of this witness a 45 ^ years old man in a house where only females lived two of whom were young unmarried women does not appeal to reason at all. A casual visit by a close friend of the complainant's son in the given 'circumstances could be justified but his stay in the house and that too for two nights does not appear to be logical. This witness had also contradicted himself in material particulars. During cross-examination he had stated that he was a checker in a transport company and also that there was no function of any sort or betrothal or Rukhsati etc., which could justify his prolonged presence at the house of the complainant. He also made improvements in this statement qua the cutting of fodder by the deceased women, about the timing of the alleged occurrence and about the purpose of the deceased women for going to die fields as also his purpose for leaving the house of the complainant in the evening. The presence of this witness in the month of Ramzan is also not free from doubt as such the ocular evidence has been found by us not to be confidence inspiring at all. We have come to the conclusion that the occurrence did not take place in the manner as stated by the prosecution.
11. The prosecution sought to corroborate the ocular testimony through the evidence of motive, medical evidence and the recovery of gun allegedly effected from the appellant. As far as the motive is concerned the only P.W. Who stated about the motive was P;W.4 Salamat Bibi who stated that murders had been committed for the reason that she had performed Nikah of Akbari Bibi with Abdul Sattar the father of the appellant when the appellant was of young age. In cross- examination she admitted that "no quarrel or dispute or untoward incident ever took place between my family and the accused family during the period of 16 years preceding the occurrence". However, she denied the suggestion that the accused party had no motive to murder the deceased persons. Nowhere was it explained by the complainant as to how all of a sudden after 16 years the appellant committed such a heinous offence when the appellant who. At the time of Nikah was about 13 years of age and had admittedly known about the factum of Nikah all along.
In the F.I.R. The complainant stated that Abdul Sattar had started demanding Rukhsati which had not yet taken place but she stated that she would arrange Rukhsati when her son Ali Akbar would come from abroad, however, in her deposition in the Court Salamat Bibi stated that Satari Bibi co- accused mother of the present appellant and her Bhabi Shamim co-accused had asked her to perform Rukhsati of Akbari Bibi. This was a departure made by Mst. Salamat Bibi from the story of the F.I.R. And even otherwise it looks quite unnatural that first wife of the husband would demand Rukhsati of a woman who is her Sokan. Apart from this it had never been claimed by the prosecution that Ali Akbar the son of the complainant had come back to Pakistan or was visiting Pakistan or that there was any preparation going on for Rukhsati which could offer immediate motive to the appellant. Apart from Salamat Bibi complainant neither any P.W. Stated about the motive nor deposed about any one having approached Salamat Bibi for Rukhsati. In this situation we hold that the prosecution had not been able to prove even the motive part of the story.
12. Insofar as the medical evidence is concerned Dr. Iftikhar Ahmad P.W. 12 who conducted postmortem examination on the dead body of Mst. Akbari Bibi and Sarwari Bibi observed that in both the cases stomach was full of semi digested food, vaginal Swabs were taken and according to the report of Chemical Examiner the vaginal swabs of Akbari Bibi were found stained with semen whereas the vaginal swa bs of Mst. Sarwari Bibi were not stained with semen. According to the doctor the deceased had taken their food 2/3 hours before the occurrence. He also observed that there was no injury on the temporal regions right or left of Mst. Sarwari Bibi, We have noticed that the medical evidence in fact does not support the prosecution case regarding the timing of the occurrence. Both the deceased namely Mst. Akbari Bibi and Mst. Sarwari Bibi were fasting on the day of occurrence. This was specifically stated by Mst. Salamat Bibi their mother who appeared as P.W.4 in her cross-examination. The occurrence according to the prosecution took place at 5-45 p.m. And Aftaar time on the fateful day was around 5-30 p.m. As already stated the contents of the stomach were full of semi digested food. If the occurrence had taken place as alleged by the prosecution, keeping in view the fact that both the ladies were fasting and must have broken the fast at Aftaar time the stomach should have contained undigested food which was not the case,.
This circumstance alone casts a serious shadow of doubt on the prosecution story vis-k-vis the timing of the occurrence. In fact the medical report supports the claim of the appellant that the occurrence had taken place at about 8-00 p.m. This serious contradiction in the ocular and the medical account has been brushed aside by the learned trial Court in paragraph 62 of its judgment in the following terms:- ' "As far as the occurrence is concerned, either both the deceased were not fasting when they were assassinated or they might have been killed two hours after the completion of their fast in view of the stomach report of Dr. Iftikhar Ahmad P.W.
12."
' The learned trial Court thereafter did not elaborate or extend any reason for resolving this contradiction in favour of the prosecution. Another important aspect which was not properly attended to by the learned trial Court was the report of Chemical Examiner regarding vaginal swa bs relating to Mst. Akbari Bibi. The same were found stained with semen while the case of the prosecution had all along been that she was a religious lady and her Rukhsati had not taken place.
The said report of the Chemical Examiner also lends support to the story put forward by the accused that Mst. Akbari Bibi was present in the field in suspicious circumstances when she was fired at. Insofar as the recovery of gun was concerned the same was allegedly recovered from the appellant on 10-10-1998 i.e, 32 months after the occurrence from the residential room of the Dera.
The recovery witness Khushi Muhammad who appeared as P.W.Ll, however, resiled from his statement and stated that no recovery was effected from the accused in his presence. Even otherwise the place of recovery had not been shown to be in the exclusive possession of the appellant. Moreover neither any empty had been recovered nor the gun had been sent to Forensic Science Laboratory, as such recovery of gun is of no avail to the prosecution.
13. In the facts and circumstances as narrated above what is to be seen by this Court is that whether the plea of grave and sudden provocation taken by the accused for the first time in his statement under section 342 Cr.P.C was a fake plea as an excuse for killing the victim or for seeking lesser sentence or was it a plea which inspired confidence and could be substantiated. We have to see whether the plea of the accused was in consonance with probabilities fitting in the circumstances of the case which also inspires confidence in the mind of a reasonable prudent man. We have come to the conclusion that the prosecution evidence is replete with improbabilities. The eyewitnesses were interested and their presence at the spot had not been proved. The recovery of the gun does not lend any support to the case of the prosecution for the reasons stated hereinabove. The medical evidence is totally destructive of the story of the prosecution and in the given circumstances of the case the statement of the accused under section 342 Cr.P.C had to be taken into consideration in its entirety and not merely inculpatory part of it, which could be done only if there was other reliable evidence available to supplement the prosecution case, in which case the exculpatory part if proved false could be excluded. In this connection if would be profitable to refer to the case of Sultan Khan v. Sher Khan (PLD 1991 SC 520) where the Hon'ble Supreme Court held in para. 6 as under:-- ' "After excluding the entire prosecution evidence against the accused, the question calls for determination is whether the statement of the accused is to be accepted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the inculpatory statement. There is no doubt that the statement of an accused recorded under section 342 Cr.P.C. May be taken into consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement must- be accepted or rejected as a whole. The Federal Court in Rahim Bakhsh v. Crown PLQ 1952 FC 1 has observed that if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken into consideration in its entirety. The statement of the accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded. "
' Although the learned trial Court had placed reliance on the ocular evidence, the evidence of motive, recovery of gun and the medical evidence regarding the conviction and sentence against the appellant coupled with his admission in the statement under section 342 Cr.P.C but since we have come to . The conclusion that the ocular evidence, medical evidence, the evidence of motive and evidence of recovery were not trustworthy, therefore, for all intents and purposes what has happened is that the conviction and sentence has been based merely on his admission in his statement under section 342 Cr.P.C. The possibility that the defence version as disclosed by the accused in his statement under section 342 Cr.P.C even if it is exaggerated or twisted and involved some suppression of facts, does speak of a probability and the failure of the prosecution to establish its own case would take us to the defence version which will have to be considered and appreciated. In the given facts and circumstances of the case the statement of the appellant has to be believed in its entirety. We have also come to the conclusion that although family honour to some extent was involved in the case but there was no justification to kill the two females merely on the basis of suspicion. Killing over question of family honour on provocation has been accepted as an extenuating ground for grant of lesser punishment. In the given circumstances of the case we hold that the conviction and sentence of the accused/appellant under section 302(a), P.P.C.
Was not justified. Qatl committed on account of Ghairat being not equivalent to Qatl-e-Amd the appellant is entitled to some concession. Accordingly we hold that the appellant could not be convicted under section 302(a), P.P.C. The conviction under section 302(a), P.P.C. Is accordingly altered to section 302(c), P.P.C. And the appellant is sentenced to undergo 20 years R.I. On each count. The sentence of imprisonment shall run concurrently and benefit of section 382-B Cr.P.C will be available to the appellant. We also order that the appellant shall pay an amount of Rs, One lac on each count to the mother of the deceased as compensation under section 544-A, Cr.P.C in default of payment of which he shall undergo S I. For six months on each count. Murder Reference No,60 of 2000 is answered in the negative.