' ALI NAWAZ CHOWHAN, J. This judgment shall dispose of Criminal Appeal No,333 of 2000 and Murder Reference No, 141 of 2000 as both of them arise out of F.I.R. No, 270, dated 24-6-1998 registered under section 302, P.P.C at police station Cantt., Gujranwala.
2. Sarfraz appellant has been convicted under section 302(b), P.P.C. By the learned Additional Sessions Judge, Gujranwala vide judgment, dated 13-3-2000 on two counts for causing death of his wife Mst. Rafia Bibi/Mst. Razia Bibi as well as the death of Muhammad Asif brother of the complainant Muhammad Arif at the same time and sentenced to death. He was directed to pay compensation of Rs,2,00,000 each to the legal heirs of Muhammad Asif and Mst. Razia Bibi deceased under section 544-A, Cr.P.C. In default whereof he is to undergo R.I. For five years on each count. While narrating the facts on behalf of the prosecution side Muhammad Arif in his testimony before the trial Court and which corresponds to his statement in the F.I.R. Stated as follows:--- ' "Sarfraz accused is our neighboures, Asif deceased was student of 10th Class. On 24-6-1998 at about evening time accused Muhammad Sarfraz present in the court murdered my brother Muhammad Asif. Before the murder of Muhammad Asif accused Sarfraz got some money on loan from myself. My brother Muhammad Asif was in need of money in connection with his education. I asked my brother Muhammad Asif to demand money from Sarfraz accused. My brother Muhammad Asif demanded money from accused Sarfraz and both quarrelled with each other.
Sarfraz accused made threats to Asif for his demand of money and the accused felt insulted. He made a threat to teach a lesson in the evening. Asif went to my shop situated in Satellite Town, Gujranwala and he narrated the occurrence as to demanding of money from Muhammad Asif. I myself and Asif, both got down on Mandiala Warraich Bus Stop. Anwar P.W. Met us there and we all the three started walking towards our house while talking about the occurrence as to demanding of money by Asif deceased from Sarfraz accused. When we entered in the street where house of Sarfraz is situated. The deceased Asif was ahead of us. Accused Sarfraz came out from his house armed with pistol and dragged my brother Asif in his house. We ran towards Asif and we were on the door step when the accused Sarfraz fired a pistol shot on deceased Asif in the room in our presence. We raised the cries and the accused also made firing on us and we ran outside. Asif died on the spot.
' Muhammad Anwar (P.W.4) supported the story of the complainant Muhammad Arif.
3. Afzaal Ahmad (P.W.11) is the Investigating Officer in this case who had taken the. Application (Exh.P.G.) of Muhammad Arif while he was on patrol duty and sent it for registration of F.I.R.
(Exh.P.G./1). At the spot he prepared inquest report of Asif and Mst. Razia Bibi (wife of the appellant).
He also prepared their injury statements. He sent the dead body for post-mortem examination and later received their last-worn clothes. He prepared the rough site plan on the site (Exh.P.U.). He picked up blood with the help of cotton from the place where the two dead bodies were lying.
Three empties of .30 bore pistol were also recovered from near the dead body of Asif. Likewise, three empties of .30 bore pistol were recovered from near the dead body of Mst. Razia Bibi which were secured through memos. Attested by the P.Ws. Draftsman prepared the site plan at his instance and on this he scribed his notes in red ink.
4. On 8-7-1998 Sarfraz appellant led to the recovery of the crime weapon from his house. It had three live cartridges as well which were also recovered. Following are the relevant excerpts from his statement:--- ' Afzaal Ahmad (P.W. 11).
' "It is correct that I had recorded the statements of the P.Ws. As eyewitnesses who were mentioned in the F.I.R. By the complainant. Volunteered that I have included the other public during my investigation. Soon I reached at the spot it did not come to my notice that the accused had also murdered his wife because of her immoral character. I stayed at the spot for about 3-1/2 hours and interrogated the case. The people gathered at the spot were giving different versions. Some of them were of the view that the wife of the accused was bad-character while the other people were saying otherwise. I do not remember whether any of them had told me that she was a pious woman."
' "The version of the accused side during the investigation of the case was that the accused had already detained Asif deceased in his house. Volunteered the version of the complainant side was that the deceased was taken to the house of the accused by him on pistol point. On 5-7-1998 the mother of the deceased namely Mst. Irshad Bibi appeared before me and presented an application to the effect that on 24-6-1998 when she came to her house, the children in the lane told her at about 4-00 p.m. That her son Asif had been detained in the house of Hameed Lohar Thaikedar. It is correct that Hameed Lohar is the father of the accused who lived along with the accused in the same house."
' "It is correct that the first plea of the accused before me was that his wife was not of good character and Asif deceased had developed illicit relations with her and the deceased Asif was already present in his house in his absence on the day of occurrence at 12-00 noon. At 6-30 a.m.
When he came to his house he came to know about the presence of Asif deceased in his house and he furnished both the paramours."
5. Dr. Muhammad Fayyaz (P.W.10) conducted the post-mortem examination on the dead body of Asif deceased. He found the following injuries on his person.
(1) Fire-arm lacerated wound of entry 2-1/2 c.m. x 2-1/2 c.m. Inverted burnt margins going deep on middle of the forehead, upper part.
(2) Fire-arm lacerated wound of exit 2 c.m. x 2 c.m. On back of the upper part of neck on left side just below the hairline with everted margins.
' According to the doctor death in this case occurred due to injury to the brain, the vital organ of the body and caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. The probable time which elapsed between injuries and death was immediate and the time between death and post- mortem was about within 12 to 24 hours.
' Dr. Ghazala Shafique.(P.W.8) on 25-6-1998 conducted the post-mortem examination on the dead body of Mst. Razia Bibi. She found the following injuries on her person:---
(1) Fire-arm lacerated wound of entry 1.5 c.m. x 1 c.m. On front of left lower chest going deep 9 c.m.
From left nipple and 2 .c.m. From breast.
(2) Fire-arm lacerated wound of exit 3 c.m. x 2 c.m. Going deep front of right lower chest 7 c.m.
From nipple and 4 c.m. From midline.
(3.) Slit like lacerated wound that of back of right chest lower part 3 c.m. From midline i.e, secondary missile because of exit of bony fragment.
(4) Fire-arm entry wound 1-1/2 c.m. Into 1 c.m. On lateral aspect of left hip, 4 c.m. Below iliac crest. It was going deep.
(5) Fire-arm exit wound 2 x 1.5 c.m. On lateral aspect of right hip 4 c.m. Below iliac aspect.
(6) Fire-arm lacerated wound 1/2 c.m. x 3/4 c.m. Inguinal region 3 c.m. From right anterior, superior iliac spine, going deep.
(7) Fire-arm lacerated wound of entry skin deep outer part of right thigh 17 c.m. From right anterior superior iliac spine.
' According to the doctor the death occurred in this case because of hemorrhage and shock due to injuries Nos.1, 2, 4 and 5 which were sufficient to cause death in the ordinary course of nature individually and collectively. All the injuries were caused by fire-arm weapon and were ante- mortem in nature. The probable time that elapsed between injuries and death was within 1/2 hours and the time between death and post-mortem examination was within 24 hours.
6. Ali Raza P.W.1, Adnan P.W.2, Riasat Ali A.S-I. P.W.5, Muhammad Afzal 1596-C P.W.6, Muhammad Aslam 1310-C P.W.7 and Arif Hussain Ayaz Draftsman P.W.9 are the formal witnesses.
7. In his statement under section 342, Cr.P.C. On the question as to why this case has been made against him, the appellant stated as under:--- ' "P.Ws: of this case are related inter se and are interested witnesses. Nobody had seen the occurrence. In fact, on 24-6-1998 I left my house for my routine work in my factory and in my absence at 12-00 noon Muhammad Asif deceased came to my house who had already developed illicit relations with my wife Mst. Razia Bibi and in my absence Muhammad. Asif frequently visited my house, for what I not only forbade my wife Mst. Razia Bibi deceased but also made a complaint to the elders of Muhammad Asif deceased. On the day of occurrence at about evening time when I came to my house I could not find my wife Mst. Razia deceased and when I in search of her came near the Baithak of my house. I found that light and the fan were on in the Baithak. At that time both the doors of the Baithak were chained from inside. I knocked the western door of the said Baithak and in reply my deceased wife refused to open it. I felt some suspicion that some other person was present in the said Baithak along with 'my wife. Because of that suspicion I took a pistol from my another room and again came before the door of the said Baithak. I again asked my wife to open the door through a window which was covered with gauze and in response to my call the male voice uttered that he would not open the door. I became roused and under grave and sudden provocation I fired at him through the window. Meanwhile, my wife opened other door of the Baithak and tried to slip away from there. I chased her and also fired at her. She became injured and after running few steps she fell down in another room of the house. My younger brother went to call the police and after the arrival, of the police I surrendered myself before the police and also produced pistol to the police. My wife Mst. Razia was not enjoying a good reputation. Whenever I tried to 'forbid her she gave me threats with dire consequences. She also delivered me some injurious tablets by mixing it in the milk to finish my life but later on she was forgiven by intervention members."
' "The deceased Muhammad Asif was of 25-26 years old and was a vagabond in character. I never took any loan from Arif complainant nor Asif deceased came to me for demanding back of loan."
8. The appellant appeared as his own witness and supported the version which he advanced in his statement under section 342, Cr.P.C. As well as during the course of cross-examination. He also imparted the following information:--- ' "Prior to the occurrence I had good relations with Muhammad Arif complainant. I was married with my wife in 1989. However, in 1997I came to know that she was not of good moral character. No- body ever told me that she had been involved in conversation on telephone with different persons."
' "My wife might be at a distance of ten feet from the door of room when I fired at her back.
9. It was argued before us by the learned counsel for the appellant that the story as put forth by the prosecution side was totally unplausible and was fabricated. That the complainant was having his house several kilometers away from the place of occurrence and his presence thereunder the circumstances at the time of occurrence was doubtful. That the story of the defence is more plausible and logical otherwise, why will the appellant kill his own wife simultaneously. That the facts of the occurrence when compared with the me due to t statement of the complainant makes the case by the family of the complainant unplausible.
10. A perusal of the F.I.R. Reflects that the complainant while making a mention of the second murder of Mst. Razia Bibi stated that he heard of it later on implying that he did not witness it.
Although both murders seem to have been committed one after the other. This gives rise to probability that the complainant was not present at the time of the occurrence. The occurrence admittedly had taken place in the house of the appellant. In case the appellant was dragged into that house over the dispute of money we wonder why under these circumstances the appellant would kill his own wife as well. The motive part of the present story appears to be a fabrication.
Whereas true facts leading to the occurrence were suppressed.
11. The appellant's version was introduced by him as his first defence plea before the Investigating Officer. The relevant excerpts from his statement have been reproduced above. He stood by this plea steadfastly throughout the trial.
13. We have also noted scant interest coming from the side of the relations of Mst. Razia Bibi. Who too was related to the appellant besides being his wife. This can give rise to the inference that the relations of Mst. Razia Bibi also felt that the story of the appellant had some truth about it.
14. Keeping both the versions in front of us and after appraisement of evidence and after hearing all sides we are persuaded by the arguments addressed by the learned counsel for the appellant with respect to the circumstances under which the occurrence may have taken place. Therefore, we are of the view that this was a case involving family honour and grave and sudden provocation.
Of course, we would detest killing on this ground. But we are conscious of the fact that a situation as is apparent in this case and which had led to the occurrence was the cause of a grave provocation. If someone is provoked then his act is not one. Of pre-meditation falling under the definition of cold-blooded murder. It is a case where human frailty governs consciousness and impulse dominates. We, therefore, agree with the learned counsel that although this was a double murder case, it was certainly not a case falling under section 302(b), P.P.C. Rather it is a case coming within the ambit of section 302(c), P.P.C. Reference may also be made to the following judgments:-
(1) Ali Muhammad v. Ali Muhammad and another PLD 1996 Supreme Court 274.
(2) Abdul Haque v. The State and another PLD 1996 Supreme Court 1.
(3) Zulfiqar v. State PLD 1997 Lah 213.
15. But the deceased were not Masoom-ud-Dam and whereas we accept the plea of grave provocation we convict the appellant under section 302(c), P.P.C. And modify the conviction orders of the trial Court accordingly. Under the c circumstances, we would sentence him to 12 years' R.I. On both the. Counts. We are also inclined to reduce amount of compensation as determined by the learned trial Court under section 544-A, Cr.P.C. to Rs,25000 in each case or in default thereof he is to undergo S.I. For six months. The sentences of course shall run concurrently.
' The appellant is extended the benefit of section 382-B, Cr.P.C. As well. The appeal is disposed of accordingly and the murder reference is answered in the negative.