' KHAWAJA MUHAMMAD SHARIF, J.--- The appellant Muhammad Saeed along with his co-accused Muhammad Rasheed and Ghulam Hussain was tried by the learned Additional Sessions Judge, Chakwal, in case F.I.R. No,16 registered at Police Station Kallar Kahar on 15-2-2000 for offences under section 302/34, P.P.C. Vide judgment, dated 9-10-2001, the learned trial Court, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. On two counts and sentenced him to death on each count plus payment of rupees one lac to the legal heirs of each deceased, in default whereof to undergo R.I. For six months.
2. Muhammad Saeed, convict/appellant, has challenged his conviction and sentence through the instant appeal. Murder Reference No,664 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. Both these matters are being decided through this judgment.
3. The brief facts of the prosecution per statement/complaint Exh.P.D. Recorded by Abdul Qayyum, S.-I./P.W.10, at the instance of Mst. Anwar Bibi widow of Alam Khan, complainant/P.W.7, are that the complainant along with his two sons Muhammad Altaf and Muhammad Ikram and daughters Shahnaz, Rukhsana, Rehana and Asia was living in Dhoke Gohal and were making their livelihood by cultivation. Rasheed and Saeed, their relatives, were living near their house. Muhammad Altaf son of the complainant and Rasheed were friends and were on visiting terms in the house of each other. On 15-2-2000 at about 5-00 p.m. When the complainant and his other family members were present in their house, Rasheed called Muhammad Altaf and they both went to the house of Rasheed. After some time, there was report of fire and Rasheed called her also and asked her to take the dead body of Altaf who was lying dead, whereupon she and her daughter Shahnzaz/P.W.8 rushed to the house of Saeed/appellant and saw Rasheed, Saeed and their father Ghulam Hussain standing outside the door of the room. Saeed was armed with .12 bore gun. On seeing them, he said that he had done away with his wife and Altaf, as both of them were having illicit relationship with each other and that the complainant should take the dead body of her son. The complainant and her daughter saw the dead body of Altaf in the room of the house of Saeed. There was a lot of bleeding from his left arm, left flank and legs and the wife of Saeed Mst. Gulzar Begum was lying there in injured condition. Both hands of son Altaf were tied with cloth. On the alarm raised by the complainant and her daughter, several women and men gathered there. Rasheed, Saeed and Ghulam Hussain after closing the door went away.
' The motive behind the occurrence was that Muhammad Saeed/ appellant had suspicion that Muhammad Altaf and Gulzar Begum were having illicit intimacy with each other.
4. On 15-2-2000, on receipt of information about the incident, Abdul Qayyum, S.-I./P.W.10, went to the spot; recorded statement of Mst. Anwar Bibi/complainant Exh.P.D. The Investigating Officer (I.O.) prepared injury statements of Gulzar Begum and Altaf Exhs.P.G. And P.H. As well as inquest reports Exh.P.G./1 and Exh.P.H./1 respectively, and sent the dead bodies to the D.H.Q. Hospital for post- mortem examination. He collected blood-stained earth from the places where the dead bodies were lying and sealed the same into parcels vide memos. Exhs.P.I. And P.J. He also collected two crime-empties P.8 and P.9 from the spot; four pellets embedded in the wall of the room sealed the same into parcels and took the same into possession vide memo. Exh.P.K. The appellant was arrested on 24-2-2000 and while in custody led to the recovery of four pieces of broken gun P.11/1- 4, which were sealed into parcel and taken into possession vide memo. Exh.P.M. After completion of investigation, the appellant along with his acquitted co-accused was challaned to face the trial.
5. To substantiate its version at the trial, the prosecution produced eleven witnesses and after tendering in evidence the reports of Chemical Examiner (Exhs.P.O., P.Q., P.U.), Serologist (Exhs.P.R., P.S.) and Forensic Science Laboratory (Exh.P.T.) closed its side. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and took up the specific plea of grave and sudden provocation. However, neither he appeared as a witness under section 340(2), Cr.P.C. Nor did he produce any witness in defence.
6. Learned counsel for the appellant in support of this appeal submits that this is a case of two versions; that the version put forth by the appellant seems to be more plausible and convincing one; that the dead body of Muhammad Altaf (who was a stranger) along with that of Mst. Gulzar Begum deceased wife of the appellant was found in the room of the house of the appellant; that the swa bs taken from the vagina of the deceased Gulzar Begum were found to be stained with semen that nobody claimed to have witnessed the appellant causing the injuries with fire-arm, especially the widow, on the person of the deceased; that it is a case of grave and sudden provocation and the death sentence cannot be awarded or maintained in such-like cases.
7. Conversely, the learned Assistant Advocate-General submits that there are corresponding holes on the clothes of the deceased Gulzar Begum and that of the deceased Muhammad Altaf, which were taken into possession by the police; and that according to the prosecution's own case, the dead bodies were recovered from the room of the appellant.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. In the instant case, motive behind the occurrence was that Muhammad Saeed appellant had suspicions that Muhammad Altaf son of the complainant had illicit relations with his wife Mst.
Gulzar Begum. It is a case of two versions: one put forth by the complainant and the other by the appellant. If both the versions are put in a juxtaposition, the version of the appellant seems to be more plausible and nearer to the truth. The version of the appellant is reproduced below for the just decision of the case:- "I work in United Bank Limited, Chakwal and leave for my job early in the morning and return late at night time at my village Wasnal which is a considerable distance from Chakwal city. My wife Gulzar Begum deceased lived in my house alone along with three minor children. Muhammad Altaf deceased who was my relative lived nearby my house. On the day of occurrence I returned unusually earlier at about Zohar prayer time and found both the deceased in objectionable conditions, upon which I lost control over my senses and under grave and sudden provocation murdered both of them with .12 bore gun which I subsequently, broke on Gulzar Begum deceased as well. I worked very hard for my children and Gulzar Begum deceased from morning till evening and were earlier leading a peaceful life despite this hardship. Seeing what happened on the day of occurrence I lost control over my senses and faculties as a self-inspecting and practising Muslim who also belong to an honourable caste I did not deserve what my wife and Altaf Hussain done to me. No witness was present there and police learnt about the occurrence when I myself voluntarily appeared before the Investigating Officer."
The most important fact which has led us to this conclusion is that the dead body of both the above noted deceased were found in the same room; and that the swabs taken from the vagina of Gulzar Begum deceased by the Lady Dr. Farzana Yasmeen/P.W.1, who conducted postmortem examination on the dead body of the deceased, were found to be stained with semen. Nobody had witnessed the appellant firing shots or giving blows on both of the deceased persons. There are four injuries with fire-arms on the person of Muhammad Altaf including some multiple fire-arm wounds, as observed by Dr. Munir Ahmad/P.W.5, and are available at pages 15 and 16 of the paper book. As far as injuries on the person of Gulzar Begum are concerned, Lady Dr. Farzana Yasmeen/P.W.1 found four injuries on her person including some multiple fire-arm wounds, which are available at page 12 of the paper book. The first version of the appellant before the police was the same which he had stated before the trial Court in his statement under section 342, Cr.P.C. And this fact has been accepted by Abdul Qayyum, S.-I./P,W.10, during the course of his cross- examination. We are fully satisfied in our mine that it was an occurrence which had taken place under grave and sudden provocation and the appellant had acted under the impulse of the same.
So we convert the conviction of the appellant from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C. As regards the quantum of sentence, the appellant is behind the bars since 24-2-2000. We reduce his sentence to one which he has already undergone, as the same would meet the ends of justice. As far as compensation under section 544-A, Cr.P.C. Is concerned, that is set aside in view of the dictum laid down by the Honourable Supreme Court in the case of Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294, wherein it has been held that in the cases like the instant one, compensation cannot be awarded or maintained. This appeal stands disposed of accordingly. The death sentence is Not confirmed. The murder reference is answered in the negative.