' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No, 1599 of 2002 and Criminal Revision No, 1082 of 2002 directed against the judgment, dated 16-8-2002 passed by learned Addl: Sessions Judge Sargodha, whereby he convicted and sentenced the appellants as under:- Under section 302/34(c), P.P.C. To undergo 14 years' R.I. On two counts with the further direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Muhammad Khan alias Javed or in default six months' R.I. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated by the complainant Aurangzaib in the F.I.R. Are that on 31-10- 2001 in morning he was present in his house, in the meanwhile, Muhammad Boota and Ghulam Rasool residents of Chak No, 102/SB, visited their house to see Ahmad Khan alias Javed, the deceased. After some time, he along with the aforesaid persons were in search of Ahmad Khan and when at 10-00 a.m. They reached near the house of Muhammad Yar Behk, they heard some alarm. Thereon, they entered in the said Havely and witnessed that Khizar Hayat and Umardraz accused were quarrelling with Ahmad Khan alias Javed, deceased, and during that quarrel, they entered the room. Khizar Hayat accused caught hold of the deceased and Umardraz accused with his respective hatchet attacked at Ahmad Khan deceased which hit him on the left side of neck. In the said room Mst. Nusrat Bibi daughter of Muhammad Yar, sister of the said accused, was also present. When she tried to come out of the said room, Umardraz accused also hit on her neck with his hatchet and she fell down there and then. Thereafter, Umardraz accused hit twice the deceased Ahmad Khan with the said hatchet on the left side of the neck and on forefront, who also fell down in the said room. The accused asked them not to move forward otherwise they would face the same fate. Subsequently, both the accused leaving the hatchet managed to escape. The motive behind the murder is that accused Umardraz and Khizar Hayat, on some suspicion that Ahmad Khan deceased had developed some illicit relations with their sister Mst. Nusrat Bibi, therefore, the said accused summoning the deceased at their house, committed his murder.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter investigation of the case was entrusted to Muhammad Masood Inspector P.W.14 who along with his subordinates proceeded to the spot. He secured blood-stained earth regarding Ahmad Khan and Nusrat Bibi deceased vide memos. Exh.P.J. And Exh.P.K.
Respectively. He prepared injury statement of both the deceased Exh.P.H. And Exh.P.C. And inquest reports Exh.P.B. And Exh.P.G. Respectively. Last worn clothes of both the deceased were received by him vide memo. Exh.P.L. And Exh.P.M. Respectively. He arrested Umardraz accused on 10-11-2001 who while in police custody on 13-11-2001 got recovered weapon of offence hatchet vide memo. Exh.P.E.
The other accused namely. Khizar Hayat was declared innocent ultimately he completed the investigation and challaned the appellant.
4. Prosecution in order to prove its case has produced as many as 15. Witnesses including doctor, Investigating Officer eyewitnesses and other formal witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.P., Exh.P.Q. Regarding blood-stained earth and of hatchet Exh.P.R. And that of serologist regarding blood-stained earth Exh.P.S. And Exh.P.T. And in respect of hatchet Exh.P.U., learned D.D.A. Closed the prosecution evidence. Thereafter the statement of the accused was recovered under section 342, Cr.P.C. In which he pleaded his innocence after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties learned trial Court convicted and sentenced the appellant as mentioned above.
5. Learned counsel for the appellant in support of this appeal submits that it was a case of grave and sudden provocation, that the occurrence had taken place in the house of the appellant, that the dead body , of both the deceased i.e, Ahmad Khan the brother of the complainant and Nusrat Bibi the real sister of the appellant was found in the house of the appellant and the bloodstained earth was also taken from there. In all three eye-witnesses were produced by the prosecution one of them Muhammad Boota was given up while Aurangzaib real brother of deceased and Ghulam Rasool son-in-law of the maternal aunt of the complainant and the deceased, that Ghulam Rasool is not resident of the place of occurrence, he was residing about 15 miles away therefrom. He was a chance witness, even Aurangzaib was a chance witness. His presence at the spot is doubtful. That two accused including the present appellant were named in the F.I.R. Namely Khizar Hayat and Umardraz. Khizar Hayat was never arrested by the police and was declared innocent, that as far as recovery is concerned it has been planted upon the appellant. Learned counsel has referred to the observation made in paragraph 32 of the impugned judgment of learned Addl: Sessions Judge, Sargodha.
6. Learned counsel submits that though the appellant had not taken the plea of grave and sudden provocation but the same weighed with the learned Addl: Sessions Judge so he convicted the appellant under section 302(c), P.P.C. To undergo 44 years' R.I. On two counts. Learned counsel submits that the sentence awafded to the appellant is too harsh in the circumstances of the case.
7. Learned cotinsel for the complainant who has filed a revision petition for the enhancement of the sentence, submits that it was not a case of under section 302(c), P.P.C. Two eyewitnesses Aurangzaib and Ghulam Rasool produced by the prosecution are independent witnesses and they had no' enmity with the appellant. He submits that it was not a case of false implication. Two innocent persons have been murdered in this case. Learned counsel for the complainant has relied upon "2000 SCM R 406".
8. I have heard the learned counsel for the parties. In the instant case the complainant side has not denied that the dead bodies were recovered from the house of the appellant. The blood-stained earth was also taken from the courtyard of the house of the appellant. Deceased had no business to be present at 10-00 a.m. On the day of occurrence in the house of the appellant. Learned Addl: Sessions Judge was right in observing in paragraph 32 of the impugned judgment which is reproduced below:--- ' "Now the burden falls only on one person namely Umardraz, accused. He has committed two murders but in my view, he does not deserve capital punishment. The social and moral values of our society may not be ignored in this case. No brother may tolerate the presence of a paramour with his sister in privacy. Therefore, it is natural to be flared up and emotional. Saiiie situation also developed in this case. The accused Umardraz, in- my opinion on presence of both the deceased together in a room became flared up and provocated and in that condition, the offence was taken place. So the such-like provocation effects one's mental stability and creates mitigating circumstances in favour of the accused."
9. AlThough the appellant had not taken the plea of grave and sudden provocation but the settled law is that if it is spelt out from the record that can be taken into consideration. After going through the evidence on the record, submission made by the learned counsel for the parties I am of the view that the appellant had acted under grave and sudden provocation and the result was that these two deceased lost their lives from the hand of the appellant. The judgment cited by the learned counsel for the complainant as mentioned above has no relevancy whatsoever in the instant case because I have myself gone through the same. Under the above circumstances, though the conviction is maintained under section 302(c), P.P.C. But the sentence is converted from 14 years' R.I. To U) years' R.I. With the benefit of section 382-B, Cr.P.C. The appellant is on bail. He shall be taken into custody by the relevant authorities to serve out his remaining sentence. As far as compensation under section 544-A, Cr.P.C. Is concerned that is set aside because no compensation in the cases of grave and sudden provocation can be awarded. Reliance in this regard PLD 1982 SC 294 titled as "Meraj Begum v. Ijaz Anwer etc." With this modification this appeal will dispose of and the revision petition is dismissed.