Muhammad Jamil son of Muhammad Ismail, aged 20, armed with chhuri and Muhammad Ashraf, son of Muhammad Rafique, aged 19, also armed with chhuri, both cousins, have been convicted under section 302/34; P. P. C. For the double murder of -Shahid Shabbir, aged 26, and Mst. Nargis, aged 24, their cousin, and vide judgment dated 26th October, 1981 of the Additional Sessions Judge, Lahore, each of them was sentenced to imprisonment for life on two counts plus fine of Rs. 2,000 each on each count or in default to undergo two years, rigorous imprisonment each. Each of them was also con--victed under section 432/34, P. P. C. For trespassing into the house of the two deceased and each of them was sentenced to two years rigorous imprisonment on each count plus fine of Rs. 500 each on each count or in default to undergo three months' rigorous imprisonment each. The sentences are to run concurrently. Their co-accused, namely, Niamat Ali, son of Muhammad Sharif, empty-handed and also their cousin, was acquitted. The appeal of the convicts is being disposed of alongwith Criminal Revision No. 454 of 1982 for enhancement of the sentence of the convicts to death, by this judgment.
2. The occurrence took place at 6 p. m. On 10th. January, 1981 in the houses of the two deceased which were situated opposite to each other in lane No. 157, Fazal Elahi Park, at a distance of 1-- kilo- -meters from police station of Shalimar. Lahore, F. I. R. (Exh. P. O.) was lodged by Kabir Ahmad (P. W.
11), brother of Shahid Shabbir deceased, at 7 p. m. On 10th January, 1981, and it was recorded by Noor Muhammad S. 1. (P. W. 14).
3. The motive for crime, as stated in the F. I. R., is that the appellants and the acquitted co-accused suspected that there existed illicit relationship between their cousin namely. Mst. Nargis deceased and Shahid Shabbir deceased and that it was in this background that the two deceased were murdered at their hands.
4. Of both the murders, in the instant case there are three eye-witnesses produced, namely, Kabir Ahmad (P. W. It), brother of Shahid Shabbir deceased, Munir Ahmad (P. W. 12), another brother of Shahid Shabbir deceased, and Mst. Najma Parveen (P. W. 13), wife of Kabir Ahmad P. W.
5. The appellants were arrested on the same day i.e. On 10th January, 1981, by Noor Muhammad S. 1.
(P. W. 14). Niamat Ali, acquitted co-accused, was arrested by the same police officer on 13th January, 1981. No. Recovery was effected from Niamat Ali, acquitted co-accused. However, from Muhammad Jamil appellant at the time of/his arrest his blood-stained shirt (Exh. P. 7) and shalwar (Exh. P. 8) were removed and taken into possession vide Memo. Exh. P. L. This recovery memo. Is attested by Ziauddin (P. W. 9), Muhammad Arshad (not produced) and Noor Muhammad S. 1. (P. W.
14), From Muhammad Ashraf appellant at the time of his arrest were got removed from his person blood-stained shirt (Exh. P. 5) and shalwar (Exh. P. 6) and taken into possession vide Memo. Exh. P. K.
Both these recoveries were effected on 11th January, 1981 and the attesting witnesses in both the cases are the same. Six days thereafter at the instance of Muhammad Jamil appellant was recovered blood--stained chhuri (Exh. P. 9) and taken into possession vide Memo.
Exh. P. M. Again at the instance of Muhammad Ashraf appellant blood-stained chhuri (Exh. P. 10) was recovered and taken into possession vide Memo. Exh. P. N. Both these recoveries were effected on 16th January, 1981, and the recoveries memos. Are attested by Muhammad Hanif (P. W. 10), Muhammad Asif (not produced) and Noor Muhammad S. 1. (P: W. 14). According to the report of the Serologist all these articles were found to be stained with human blood.
6, In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day Kabir Ahmad (P. W. 11), Munir Ahmad (P. W. 12) and Mst. Najma Parveen (P. W. 13) were sitting in their house when they heard an alarm coming from the baithak of Shahid Shabbir deceased. They rushed to the scene of crime and witnessed that the appellants as well as the acquitted co-accused were giving blows to the deceased with their respective chhuris. After giving caused him numerous injuries the three of them proceeded towards the opposite house of Mst.
Nargis deceased. They were followed by the eye-witnesses. Mst. Nargis deceased was at that time preparing meals. The appellants and the acquitted co---accused also attacked her with their respective chhuris and gave blows therewith to her. Shahid Shabbir deceased died on way while he was being taken to the hospital by his brothers, whereas Mst. Nargis deceased was taken to the hospital by her brother namely, Ramzan (not produced). She was medically examined before she died at 10 p. m. On the same night. Thereafter was her post-mortem examination was conducted.
She was not in a condition to make any statement when removed to hospital in an injured condition.
7. Dr. Shahid Hameed (P. W. 6) medically examined Mst. Nargis deceased, while she was still alive, on 14th January, 1981 at 6.30 p.m., and found on her person four incised wounds on lower abdomen and other parts of the body. The patient was unconscious. The injuries were caused by a sharp- edged weapon and they were fresh, She died at 10 p. m. On the same night.
Dr. Sabir Ali (P. W. 7) conducted post-mortem examination on the dead body of Mst. Nargis deceased on 11th January, 1981 at 2.30 p. m. He noted the same injuries on her person except that some of the wounds were stitched. He also recovered letter (Exh. P. E.) written in red ink from nefa of the shalwar of Mst. Nargis deceased and handed over the same to the police. In his opinion the death had resulted due to injuries caused to the lower abdomen and in--testines with a sharp- edged weapon as these were sufficient to cause death in the ordinary course of nature. The probable time which elapsed between injuries and death was a few hours and between death and post-mortem examination 16 hours. It is not clear from the statement of the doctor as to whether or not he took swa bs from her hymen for detection of semen, nor he was in a position to say as to whether she was a virgin or used to sexual intercourse.
The same Medical Officer conducted the post-mortem examination on the dead body of Shahid Shabbir deceased at 1.15 p. m. On 11th January, 1981 and found on his person 13 incised wounds on different parts of the body. In his opinion six out of these inciseds wounds were individually sufficient to cause death in the ordinary course of nature. These injuries had been caused with a sharp-edged weapon. The cause of death was haemorrhage and shock, and the probable time that elapsed between the injuries and death was soon after, and between death and post-mortem examination about a day.
8. The appellants denied the prosecution version but gave their own version. Their version in brief was that on the fateful day at about 5 p.m. They came to the house of Ablul Majid i. e. Father of Mst.
Nargis deceased. When they entered the courtyard of the house Mst. Nargis deceased and Shahid Shabbir deceased were busy in making love with each other in a room adjoining the kitchen. On seeing them in this condition both of them lost their temper, and under grave and sudden provocation picked up kitchen knives and caused injuries to both of them. They stated that they caused injuries to both of them under grave and sudden provocation, as they had lost self-control on seeing an unmarried sister of theirs with an outsider of the family busy in making love.
According to their statements, Niamat Ali, acquitted co-accused was not present at the time of the occurrence. After the occurrence both of them went to the police station and narrated the version of the occurrence there. They pro--duced kitchen knives before the S. I. According to them, the pro- -secution witnesses were not present at the scene of crime but they fabricated the present version of the occurrence. The incident had not been witnessed by anyone as the inmates of the house of Mst. Nargis deceased were also not present there.
This is the version of both the appellants. So far as Niamat Ali, acquitted co-accused, is concerned, he denied having participated in the occurrence and stated that he had not been present on the spot. He produced two D. Ws. In support of his alibi evidence. His alibi evidence has been accepted.
Besides that no recovery was effected from him and no part had also been ascribed to him. For these reasons the trial Judge has given him the benefit of doubt and acquitted him.
9. I have heard learned counsel for the appellants. His main argument is that the appellants had caused injuries to the two deceased, in the instant case, under grave and sudden provocation and that, therefore, there was no justification in convicting and sentencing them under section 302/34, P. P. C. His reasoning is that the case of the appellants is covered by Exception I to section 300, P. P.
C. And, therefore, they could have at the most been convicted under section 304, Part I, P. P. C. And sentenced accordingly. It is stated by learned counsel that the eye-witnesses, in the instant case, only were attracted to the scene of crime at the time when they heard raula or alarm of Shahid Shabbir deceased. According to learned counsel, they did not witness as to what had happened immediately before that alarm. It is sub--mitted that since there is no witness of what transpired immediately before the alarm was raised, the version of the appellants should be accepted. The version of the appellants is that when they entered the house of Mst. Nargis deceased, they saw that she was making love with Shahid Shabbir deceased in a room adjoin--ing the kitchen and on seeing them in this position both the appellants were gravely and suddenly provoked and picking up kitchen knives, which lay nearby, they attacked both the deceased on the spot. Learned counsel submits that in a case of grave and sudden provoca--tion of this nature even if they had not found the two deceased in a compromising position and had found them merely sitting there or kissing each other, Exception I to section 300, P. P. C. Could be made applicable as it was held in Amir Bakhsh v. The State (1975 P Cr. L J 548). In that case the accused found the two deceased merely sitting together under the bushes. It was held that Exception I to section 300, P. P. C., was applicable.
The accused was convicted under section 343; Part 1, P. P. C. And sentenced only to three years' rigorous imprisonment. The only point which requires determination in this case is as to whether the version of the appellants is correct. The eye-witness account in the instant case comes from the family members of Shahid Shabbir deceased i.e. The paramour. According to their version, they heard alarm of Shahid Shabbir deceased while Shahid Shabbir deceased was in his own baithak.
They rushed to the baithak of their house and saw that the appellants were causing injuries with their respective chhuris to Shahid Shabbir deceased in his baithak and not in the house of Mst.
Nargis deceased. Blood was also picked up from the said baithak. Thereafter, according to the ocular account the appellants proceeded to the opposite house i.e. Of Mst. Nargis deceased while they followed them. There, at that time Mst. Nargis deceased was preparing meals in the kitchen and they attacked her there. Thus, the difference between the ocular testimony and the version given by the appellants is that according to the appellants both the deceased received injuries at their hands in a room adjoining the kitchen of the house of Mst. Nargis deceased, whereas according to the ocular account both these deceased were done to death in their respective houses i.e. Shahid Shabbir deceased in the baithak of his house and Mst. Nargis deceased in the room near the kitchen of her house. Thus the main point is as to whether or not the version given by the appellants of the occurrence is plausible i.e. Had the incident taken place in the way as described by the appellants, then the natural sequence would be that on seeing the appellants Shahid Shabbir deceased ran away to his house and was chased by the appellants who came to his baithak and killed him there and there--after they went back to kill their cousin Mst. Nargis deceased. But the point is that they could have killed Mst. Nargis deceased on the spot first and thereafter chased Shahid Shabbir deceased.
I have carefully considered different aspects of this case. The prosecution had not produced any witness who could state categori--cally as to what had happened immediately before the alarm was raised by Shahid Shabbir deceased in his baithak. The three eye-- witnesses of the occurrence were attracted to the scene of crime i.e. Baithak in. Which Shahid Shabbir deceased was done to death at the very moment of hearing his alarm. None of them could state as to what had happened before the alarm was raised or where Shahid Shabbir deceased had happened to be before he raised alarm in the baithak. It must not be forgotten that the house of Mst. Nargis deceased is just facing the house of Shahid Shabbir deceased. The statement of the first informant made before the trial Court is to the effect that his children were being taught by Shahid Shabbir deceased in the baithak and they had come into the back room just before the alarm was raised.
But this fact does not find any mention in the F. I. R. In which it has been stated that Shahid Shabbir deceased used to teach children of the Mohallah in the said baithak. It is not stated that at the time of the occurrence he was teaching any children or had just finished teaching children before the occurrence had commenced. This statement of the first informant made before the trial Court, therefore, is not reliable and does not resolve the main problem. The defence story is that the appellants returned to the house of Abdul Majid i. e. Father of Mst. Nargis deceased, as they were close relatives, and one of the appellants, whose house was under construction in those days, was residing there. When they came in, they saw Shahid Shabbir deceased making love with Mst. Nargis deceased, their cousin, in a room adjoining the kitchen and at that time no member of the family of Abdul Majid, including himself, was present there. On seeing this, the appellants were suddenly and gravely provoked, they picked up kitchen knives from the nearby kitchen and attacked both of them. The statements of the appellants only have been made to this extent. In other words, none of the appellants has stated as to how Shahid Shabbir deceased reached the baithak of his house which was in front of the house of Mst. Nargis deceased and how he was given injuries in his own baithak. Learned counsel for the appellants in support of the defence version has placed reliance on a letter written by Shahid Shabbir deceased to Mst. Nargis deceased and this letter was found in the nefa of the shalwar of Mst. Nargis deceased by the Medical Officer at the time of conducting her post-mortem examination. This letter is Exh. P. E. It is written therein by Shahid Shabbir deceased to Mst. Nargis deceased that she must meet him on that very evening. On the basis of this letter it is argued that it is reasonably probable that Shahid Shabbir deceased and Mst. Nargis deceased were together. It is also argued that in the light of the contents of the letter it is further reasonably probable that Shahid Shabbir deceased met the girl in her own house. It was submitted that it is not relevant to whether the two were simply sitting together or kissing each other or having sexual inter--course when they were caught or surprised by the appellants, because even if they had been seen together in the house of the girl by the girl's relatives, it was sufficient to provide to the appellants grave and sudden provocation. In other words, if the appellants had seen their female cousin in the company of a stranger in the house, possibly with the background that there was illicit relationship, and they killed them, their case would be covered by Exception I to section 300, P. P. C. Learned counsel submitted further that even if the statements of the appellants were not altogether true or contained elements of falsehood, it would not bar allowance to them of any advantage that law permitted in their favour. In this connection, he has placed reliance on Sadiq v.
The State (PLD 1967 SC 356). Learned counsel for the complainant as well as the State, on the other hand, attempted to argue that since the places at which both the deceased, in the instant case, were done to death were different and the appellants were admittedly stated to have - attacked both the deceased by trespassing into their respective houses, there was a strong presumption that at the time of their murders; the two deceased were not together but they were separate. In that view of the matter, it is argued that it was a case which was not covered by any Exception 300; P. P. C. But was under section 302/34, P. P. C. The reasoning is that even though there was suspicion of illicit relationship, if there was no event creating grave and sudden provocation, then it could be only considered as an extenuating circum--stance for taking a lenient view and for awarding lesser penalty which has already been done by the trial Court in the case of the appellants. Learned counsel for the complainant nevertheless main--tained the position that it was a gruesome murder of two persons and that therefore, the sentence awarded to the appellants should be enhanced. I have considered the arguments of both the sides. In my considered opinion the prosecution witnesses came into picture on bearing the alarm of Shahid Shabbir deceased. The prosecution has not produced any witness to state as to what had happened before the alarm was raised. In such circumstances, I am left with no other choice except to partly accept the statements of the appellants in this respect which are to the effect that they found both the deceased in the house of the girl and on seeing them they were gravely and suddenly provoked. Thus, picking up knives from the spot or nearby kitchen they attacked them. It is reasonably probable that at this juncture Shahid Shabbir deceased attempted to run away to his house and was chased by the appellants. Shahid Shabbir deceased found refuge in the baithak of his own house which was just in front of the house of the girl and the appellants followed him there and attacked him. While they were stabbing him he raised alarm and thus the eye-witnesses were attracted to the scene of crime and for the first time came into the picture. They saw -the appellants causing injuries to Shahid Shabbir deceased and when they had finished with him they rushed back to the house of the girl while Mst. Nargis deceased was still there probably thinking that they might not come back to hurt her. But they did come back and they also caused injuries to her, thereby murdering her.
In the light of what has been discussed above, particularly b the learned counsel for the appellants, in my considered view the case of the appellants is covered by Exception I to section 300, P. P. C.
Reliance in this connection can be placed to Amir Bakhsh v. The State (1975 P Cr. L J 548). Since this is my view, the conviction as well as the sentence awarded to the appellant under section 302/34, P. P. C. Were not proper and there are accordingly set aside. Instead the appellants are convicted under section 304, Part I, P: P. C. And each of them is sentenced to five years' rigorous imprisonment plus fine of Rs. 1,000 each on each count or in default to undergo one year rigorous imprisonment each. The conviction of each of the appellants under section 452/34, P. P. C, for trespassing into the houses of the two deceased is maintained but the sentence is reduced from two years' rigorous imprisonment to one year rigorous imprisonment on each account and the sentence of fine is also reduced to Rs. 250 each on each count or in default to undergo 11 months' rigorous imprisonment each. The sentences of imprisonment are ordered to run concurrently. While computing the sentences of imprisonment awarded to the appellants the Jail authorities are hereby directed to grant the benefit of the provisions of section 382-B, Cr. P. C. To them. Their appeal is accepted to this extent.
In the light of the above discussion I do not find any substance in Cr. R. No. 455 of 1982, which is dismissed in limine.