' PERVAIZ INAYAT MALIK, J.--- The appellant/convict Qaiser Ayub faced trial in case F.I.R. No,288 of 2003 dated 16-10-2003 for offence under section 302, P.P.C. Police Station Makhdoom Rasheed, Multan in the Court of learned Additional Sessions Judge, Multan for allegedly committing murder of Ataullah and Jannat Bibi his wife deceased. Formal charge against him was framed on 21-6- 2004, to which he pleaded not guilty and claimed to be tried, according to law, whereafter, the learned trial Court directed the prosecution to prove its case.
2. The prosecution examined as many as 12 witnesses. P.W.1, Dr. Shagufta Khatoon Naqvi, Demonstrator, Forensic Science Laboratory Department, Nishtar College, Multan conducted the post-mortem examination of Mst. Jannat Bibi deceased. She opined that death was caused by injury No,1, leading to haemorrhage and shock. All the injuries were ante-mortem in nature and caused by sharp-edged weapon; injury No,1 was sufficient to cause death. P.W.2 Safdar Hussain, Constable, escorted the dead body to the Civil Hospital. P.W.3 Muhammad Nawaz Constable had taken five sealed parcels to the examiner which contained blood-stained earth, clothes and "Chhuri" P.W.4 Khadim Hussain had witnessed the recovery of blood-stained earth and clothes of the deceased Jannat Bibi. P.W.5 Muhammad Amin identified the dead body of the deceased in the hospital. P.W.6 is Manzoor Ahmad. He identified the dead body of Ataullah, deceased. P.W.7 is Irfan Hayat, Draftsman who was taken to the place of occurrence and on the instructions and pointation of P. Ws. Are the same day prepared site-plan Exh.P.E. And Exh.P.E./1. P. W.8 Muhammad Rafique was posted on the relevant day as "Moharrar" Head Constable at Police Station Makhdoom Rasheed.
P.W.9 Dr. Ghulam Asghar Shah, Medical Officer conducted the post-mortem on the dead body of Ataullah deceased, a young male aged about 25/26 years. In his opinion death occurred due to bleeding and shock leading to death due to cut of vital structure at front of neck including both carotid vessels incised wound caused by sharp-edged weapon; all the injuries were ante-mortem and sufficient to cause death in ordinary course of nature. F'.W.10 Bashir Ahmad and P.W.11 Muhammad Asghar both are eye-witnesses. P.W.12 Irshad Hussain, Sub Inspector is the Investigating Officer and effected recoveries.
3. After closing the evidence of prosecution, statement of accused under section 342, Cr.P.C. Was recorded on 20-9-2004, however, he refused to appear in his own defence and also refused to produce any evidence in defence.
4. In his statement recorded under section 342, Cr.P.C. The convict appellant stated that when he saw Attaullah deceased and Mst. Jannat Bibi deceased, wife of the convict/appellant, in compromising position and naked, he lost his temper and committed murder of both Attaullah and Mst. Jannat Bibi deceased in "Ghairat" with "Chhuri" and that he himself appeared before the police along with "Chhuri" and narrated the whole occurrence to the police. Para 21 of the judgment contains the version of the appellant as recorded under section 342, Cr.P.C. Which is reproduced hereunder:- "In an answer to a question in his statement he stated that he and Attaullah deceased were working in CTM, Multan where they developed good relation with each other and that he used to visit his house oftenly, that on the day of occurrence Attaullah deceased came in his house and stayed there on the night, that he and Attaullah deceased slept in one room while his wife Jannat Bibi slept in another room, that in the mid-night he awoke up suddenly, and found Attaullah deceased missing in his room, that he made search of Attaullah and entered in the room where Jannat Bibi was sleeping, then he saw Ataullah and Jannat Bibi were embrassing and in compromising condition and were naked, that he lost his temper and committed murder of both Jannat Bibi and Attaullah in a Ghairat after taking Chhuri from that room, that he himself appeared before the police along with Chhuri and narrated whole the ocurrence to the police, that police called the legal heirs of Ataullah and Jannat Bibi on the next morning and registered the case with false and concocted story with the connivance of legal heirs of the deceased, that P.Ws. Were not present at the spot rather they were imported by the police, all the P.Ws. Are close relatives of the deceased and deposed falsely to strengthen the prosecution case."
5. The learned trial Court after hearing the learned counsel for the parties proceeded to pass the impugned judgment, found the appellant guilty, convicted him and awarded the sentence under section 302(C), P.P.C. To 14 years' R.I. On two counts with a further direction to pay compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Ataullah and Mst. Jannat Bibi, both equal to Rs,3,50,000 on each count. The convict/appellant was also allowed benefit of section 382- B, Cr.P.C. It was further directed that both the sentences shall run concurrently. In default of payment of compensation he was directed to further undergo six months' S.I. On each count, which is being assailed through this appeal.
6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove its case beyond any shadow of doubt; that both the versions one put forth by the prosecution and the other by the defence if read in juxtaposition, in that eventuality the defence version seems to be more plausible and has to be believed as true; and that two eye-witnesses produced by the prosecution are relatives of Ataullah deceased whereas other eye-witnesses related to Mst. Jannat Bibi deceased. Although their statements under section 161, Cr.P.C. Were recorded but were not even cited as P.Ws in the case. Thus presumption would go against the prosecution. Further submits that there are number of contradictions in the statements of P.Ws. Lastly contends that since the convict/appellant committed murder of his wife and her paramour Ataullah deceased as a result of "Ghairat" due to sudden provocation, when he saw both of them in compromising position after having put off their clothes, therefore, he is entitled to be acquitted. In the alternative he submits that there being mitigating circumstances, the appellant deserves lenient view and the sentence already undergone would meet the ends of justice. Places reliance upon 2008 PCr.LJ 330 Muhammad Saeed v. The State and 1999 NLR Criminal 11 Sardar Muhammad v. The State.
7. Conversely Mian Bashir Ahmad Bhatti, learned Deputy Prosecutor General vehemently opposes the submissions made by learned counsel for the appellant and while supporting the impugned judgment submits that the learned trial Court has already taken lenient view. It is a double murder case. The convict/appellant on the pretext of so-called "Ghairat" committed the murder of two precious human lives. He, therefore, prays for dismissal of this appeal.
8. Arguments heard. Record perused.
9. It is a double murder case. The occurrence, though in a different way, stands admitted. The convict/appellant in his statement under section 342, Cr.P.C. Has confessed that he committed murder of both the deceased Attaullah and Mst. Jannat Bibi but has come out with a defence that the same was done by him on account of "Ghairat" and due to sudden provocation. I find that the impugned judgment and consequent conviction is solely based on the statement of accused recorded under section 342, Cr.P.C. As is evident from para.32 thereof. This statement was believed in toto. Salient features whereof are as follows:---
(i) The murder took place in the house of the appellant/convict.
(ii) Both the deceased were seen by the convict/appellant in naked and compromising condition.
(iii) Due to sudden provocation he committed murder of the deceased abovenamed.
10.. Learned counsel for the appellant prays for acquittal, in view of law laid down in judgment of this Court cited as Sardar Muhammad v. The State 1997 MLD 3047 wherein, learned Single Bench of this Court proceeded to acquit the convict by observing that in such a situation the appellant being father of the female accused, one of the deceased, was overpowered by the waive of the family honour and "Ghairat" killed both the deceased at the spot and that no offence liable to punishment was committed.
11. With all respects which I have for the learned author Judge, the case-law cited at bar referred to (supra) 1997 MLD 3047 is distinguishable for the following reasons:--- ' Firstly the swa bs taken from the vagina of deceased female in that case were stained -with semen which is missing in the case in hand.
' Secondly the same is not in line with the law laid down by the Honourable Supreme Court as well as D.B. Judgment referred to supra. The Honourable Supreme Court as well as the learned Division Bench proceeded to maintain the conviction in cases with almost similar facts, however, considered it as mitigating circumstances for reduction in sentence, whereas in the judgment of learned Single Bench appellant was acquitted by observing that no offence calling for any punishment was committed.
' Thirdly, I am not persuaded to subscribe to this view for the simple reason that in the name of "Ghairat" and sudden provocation, license cannot be given to any one including near relatives for committing murder of citizens of Pakistan.
12. However, the case-law cited at bar by learned counsel for the appellant reported as Muhammad Saeed v. The State 2008 PCr.LJ 330 is fully applicable to the facts and circumstances of the case in hand, note "B" in para.9 whereof is reproduced hereunder:-- "We are fully satisfied in our mind that it was 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 the compensation under section 544-A is concerned that is set aside in view of the dictum laid down by the Supreme Court in the case of Miraj Bibi v. Ijaz 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 negative."
13.
14. #TBS
15. Sentence reduced.
16. #TBE
17. However, as observed in the preceding para. The judgment of learned Division Bench is fully attracted in the facts and circumstances of this case. I, therefore, while respectfully following the law Plaid down in PLD 1982 SC 1994, followed by this Court in 2008 PCr.LJ 330 proceed to maintain the conviction, however, find that mitigating circumstances for reduction of sentence are available.
The appellant is behind. The bars since 17-10-2003. So, I reduce the sentence of the convict/appellant to one which he has already undergone, as the same would meet the ends of justice. As far as the compensation under section 544-A, Cr.P.C. Is concerned, the same is hereby set aside in view of the dictum laid down by the Honourable Supreme Court in the case of Miraj Begv. Ijaz Anwar and others followed by this Court in 2008 PCr.LJ 330. This the extent indicated above is allowed and disposed of.