Appellants above-named, being aggrieved by judgment dated 21-5-1981 of the learned Sessions Judge, Sanghar, in Sessions Case No. 60 of 1980, by which appellants have been convicted under section 302/34, P. P. C. And sentenced to suffer imprisonment for life and to pay compensation of Rs. 3,000, each to the heirs of deceased or in default to suffer rigorous imprisonment for further period of three months, have preferred this appeal, on the following facts and grounds:-
2. The case of the prosecution, briefly stated, is that complainant Lal Bux, who lives in Nawabshah District in connection with his service had come to village Loung Khan Taluka Shahdadpur, where his brother deceased Allahdad used to live. His brother Kareem Bux lives about one mile away from village of Loung Khan. He also had come to village of Loung Khan. Their uncle Khair Bux also came from Nawab Shah District. After taking meals at about 8.00 p.m., Allahdad deceased went to sleep at his wheat Khara, about one mile away from his house. Complainant Lal Bux and P. Ws. Khair .Bux and Karim Bux were sleeping in the house, when at about 2.00 a. m. They awoke from sleep on hearing one gun report. After some time they heard reports of three more gunshots. Thereafter complainant Lal Bux took torch and alongwith Kareem Bux and Khair Bux went outside the house and on the light of torch, they saw Mst. Noor Bibi lying on the ground and appellant Abdul Wahab was inflicting hatchet blows on him.' Appellant Nek Muhammad was standing over Mst. Noor Bibi with a gun. Ilyas was also standing there. All the appellants threatened them and, therefore, they came back to the house. At sun rise time, Lal Bux went to Loung Khan and informed him, the facts.
He advised him to report the matter to police. It was observed by the complainant and the witnesses that Noor Bibi and Allahdad had died because of the injuries. Trail of blood was found from there up to wheat Khara. There was also blood. Complainant then went to Shahdadpur Chakar Police Station and lodged his report. After recording the report. P. W. Usman S. H. O-- Shahpur Chakar Police Station proceeded to Vardat and inspected the same in presence of mashirs Saeed Khan and Lal Bux. He found Moth the dead bodies and blood at Vardat. He secured the blood-stained earth grid sealed it. He also found trail of blood going up to wheat Khare where also blood was found covered with fresh earth. He also found Rilli at Khara. He secured the blood- stained earth and sealed it. He sent the dead bodies for post-mortem examination to Medical Officer, Shahpur--chakar. He then examined P. Ws. Khair Bux, Kareem Bux, Loung Khan, Sher Muhammad and Taj Muhammad. On 23-5-1980 he arrested appellant Nek Muhammad, who produced his licensed gun and four empty cartridges and blood-stained shirt and Shalwar which he secured and sealed. On 24-5-1980 complainant produced his torch, which he also secured. On 28-5-1980 he arrested appellant Abdul Wahab who produced one blood--stained hatchet from Manah of his house, which he secured and sealed. After usual investigation appellants were sent up before the Court.
3. Prosecution in support of its case examined P. W. I Lal Bux, P. W. 2 Muhammad Chattal, P. W. 3 Khair Muhammad, P. W. 4 Karim Bux, P. W. 5 Shah Nawaz, P. W. 6 Alam Kumar, P. W. 7 Saeed Khan and P. W. 8 Muhammad Usman and relied upon recoveries as mentioned in Mashirnamas Exhs. 23 and 26 from the appellants and chemical examiner's report Exh. 30.
4. Appellant Nek Muhammad in his statement under section 342, Cr. P. C. Has stated, that on the night of the incident, while he was returning after watering his land, he heard whispring near the Khara of Allahdad. He saw on torch light his wife Mst. Noor Bibi and Allahdad in compromising position. He had gun and a spade with himself. He fired on Karo and Kari from his gun, which hit them. They started running towards their house. He again fired on them near the village. Allahdad had a hatchet, but he snatched the same from him and caused him injuries. He then went to Police Station Shahpur Chakar with his gun and hatchet, but police did not record his report. He stated further, that according to the custom prevailing in their tribe, relations of Karo are required to pay compensation and hand of a girl. To avoid this, complainant party has managed this case against them.
5. Whereas appellant Abdul Wabab in his statement under section 342, C. P. C. Denied all the knowledge about the incident in question.
6. The learned trial Court after taking into consideration evidence adduced by the prosecution convicted and sentenced the appellants above named as hereinabove mentioned, while acquitting the co-accused namely Ilyas and Islam by giving them benefit of doubt, vide its judgment dated 21-5-1981. The appellants above-named being aggrieved by the impugned judgment dated 21-5-1981 have preferred this appeal, on the grounds men--tioned in memo. Of appeal.
7. I have heard the learned Advocates for appellants as well as learned Advocate for the State and have gone through the evidence adduced by prosecution, before the learned trial Court as well as through the impugned judgment and authorities cited before me by the learned Advocates for the appellants.
8. The learned Advocates for the appellants as far as appellant Abdul Wahab is concerned submitted, that the case of this appellant is on all fours with the case of two acquitted accused, except alleged recovery of hatchet at his pointation, vide Mashirnama Exh. 26 'and submitted that P. W. 7 Saeed Khan, Mashir of the alleged recovery of hatchet from this appellant is relative of P. W.
Lal Bux as well as of deceased and is not resident of village Loung Khan and in cross-examination he first denied, tit he was brother of P. W. Khair Muhammad. It is clear from his statement that he stayed in village Loung Khan from 22nd to 28th May, 1980, on hearing about the incident and was made Mashir. Beside this, the learned Advocates for appellants submitted, that appellant Nek Muhammad in his statement under section 342, Cr. P. C. Has categorically stated, that he snatched the hatchet from deceased Allahdad to save himself and with the said hatchet he gave injuries to the deceased, and further stated, that he voluntarily appeared at police station to lodge report and produced gun as well as hatchet before police. In view of these facts on record, the learned Advocate for the appellants submitted, that recovery of hatchet in question at the pointation of appellant Abdul Wahab does not arise. On the basis of these contentions, the learned Advocate for the appellants submitted, that evidence of prosecution witnesses namely P. W. 1 Lal Bux, P. W. 3 Khair Muhammad and P. W. Karim Bux and P. W. 7 Saeed Khan, cannot be relied upon without independent corroboration, as they all are interrelated and interested witnesses, and since no such independent corroboration is available on record, prosecution has failed to establish its case against appellant Abdul Wahab and as such he is entitled to acquittal. In support of these contentions the learned Advocates of the appellants relied upon cases reported in 1980 SCMR 225 and PLD 1978 SC 200. The learned Advocate appearing for the State at outset submitted, that he does not support the conviction of appellant Abdul Wahab, in view of above facts and legal position, specially as there was delay of 8 hours in lodging of F. I. R. And Mashir P. W. 7 Saeed Khan is not independent Mashir for recovery of hatchet at the pointatian of the appellant Abdul Wahab and in view of the statement of co-appellant Nek Muhammad under sec--tion 342, Cr. P. C.
9. As far as appellant Nek Muhammad is concerned the learned Advocates for the appellants submitted that it is clear from the version as given in the F. I. R. That appellant stated to P. Ws. Who alleged to had come on Vardat, that his deceased wife was on illicit terms with deceased Allahdad and because of this he has done what they saw. Beside this it is clear from the Mashirnama of wardat, that both dead bodies were lying only 9 ft. Apart. In the face of these facts on record, the statement of appellant Nek Muhammad under section 342, Cr. P. C. Is very important about his having seen his wife at the dead of night, in Khara of the deceased Allahdad in compromising position and as such he lost control and fired at them, on which they ran towards village and he followed them and again fired and since Allahdad tried to hit him with hatchet, he snatched hatchet from him and gave him hatchet injuries and voluntarily appeared before police and produced gun and hatchet and wanted to lodge report, but police did not record his report. In the face of this statement of appellant Nek Muhammad and keeping in view delay in lodging of F. I. R.
Of 8 hours, the story of the appellant Nek Muhammad at least throws doubts on prosecution version as given in F. I. R. It is clear from the F. I. R as well as statement of appellant Nek Muhammad, that he killed both deceased as Karo Kari. In the face of this, offence if any committed by appellant Nek Muhammad falls, under Exception (I) to section 304, P. P. C. And consequently appellant could only have been convicted under section 304(11) P. P. C. As the learned trial Court has done, according to learned Advocates of the appellants. The learned Advocates for the appellants Nek Muhammad further submitted, that appellant had remained as under trial prisoner for one year from 21-5-1981 and in view of grave and sudden provocation like the one in present case, ends of justice demand, that his sentence be reduced to one already underdone. In support of this learned Advocates relied upon cases reported in PLD 1961. Lah. 24; A I 8.1943 Lah. 123 and 1971 PCr.LJ15.
10. The learned Advocate for the State conceded very fairly, that appellant's case would come under Exception (1) to section 300, P. P. C. And as such his conviction be altered from section 302, P.
P. C. To one under section 304(1), P. P. C. And his sentence may be reduced to 7 years.
11. The learned Advocate for the complainant, Mr. Nazar Alam on the other hand submitted, that there were in fact three murders, as deceased Mst. Noor Bibi was pregnant. He further stated, that appellant Nek Muhammad was aware of the intimacy between his wife and deceased Allahdad and as such he was waiting for opportunity to kill them and as such question of grave and sudden provocation does not arise at all. The learned Advocate for the complainant further submitted, that learned trial Court has for cogent reasons believed prosecution witnesses and rightly convicted both the appellants. In support of his contentions, the learned counsel relied upon case reported in 1980 NLR 43 and 1972 P Cr. J 166/491.
12. I have carefully considered the above submissions made by the learned Advocates for the parties and agree with the contention of the learned Advocates for the appellants, that no reliance can be placed on the evidence of prosecution witnesses Lal Bux, Khair Muhammad, Karim Bux and Saeed Khan without independent corroboration, as far as the conviction of the appellant Abdul Wahab is concerned, as all these witnesses are inter--related and interested. The corroboration is sought but the prosecution in the case of appellant Abdul Wahab is based on the alleged recovery of hatchet from him, which recovery is being supported by the evidence of P. W. 7 Saeed Khan, who is closely related to the complainant and the deceased Allahdad and beside this I have gone through his evidence, which in my opinion also does not inspire confidence. It is now established law, that one weak piece of evidence cannot corroborate other weak piece of evidence, keeping in view also the statement of co-appellant Nek Muhammad under section 3:12, Cr. P. C. That he snatched hatchet from deceased Allahdad and with the said hatchet he caused injuries to the deceased and further, that it was he who produced said hatchet before the police, when he went to the police station to lodge report, I am of the opinion, that the prosecution has failed to establish its case beyond reasonable doubt against the appellant Abdul Wahab and as such I allow the above appeal as far as appellant Abdul Wahab is concerned and set aside his conviction and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by appellant Abdul Wahab.
13. As far as appellant Nek Muhammad is concerned the evidence of P. Ws. Lal Bux, Kharr Muhammad, Karim Bux and P. W. Saeed Khan have been corroborated by appellant Nek Muhammad's own statement, under section 342, Cr. P. C. In view of this conviction of the appellant Nek Muhammad for murders of Mst. Noor Bibi and Allahdad is based on evidence on record and I see no reason to disagree with finding of the learned trial Court that appellant Nek Muhammad murdered both the deceased. The only question which requires consideration as far as appellant Nek Muhammad is concerned is, whether offences committed by appellant Nek Muhammad amounted to culpable homicide not amounting to murder, in view of Exception (I) to section 300, P.
P. C. Or murders under section 302, P. P. C. It is clear from even F. I. R. That appellant Nek Muhammad stated to P. Ws. At wardat, that as his wife was on illicit terms with deceased Allahdad, he had murdered both of them. In view of this statement of the appellant under section 342, Cr. P.
C. Gets support from F. I. R. It may be noted, that appellant in his statement under section 342, Cr. P.
C. Stated, that be went and surrendered before police and produced gun as well as hatchet, but his report was not recorded. This statement of the appellant's gets support from the fact, that F. I. R.
In question was lodged after delay of 8 hours, which delay in my opinion has not been explained satisfactorily by the complainant. Keeping in view all these facts, I see no force in the arguments of the learned Advocate for the complainant and find that authorities cited by him are based on different facts and as such not applicable to present case.
14. Therefore, I am of the opinion, that offences committed by appellant Nek Muhammad fall under section 304(1), P. P. C. As he had sufficient grave and sudden provocation to commit the murder in question, on hi finding his wife deceased Mst. Noor Bibi in the dead of the night, in comp, n of deceased Allahdad at his Khara and as such it would alter his conviction from section 302 to section 304(1), P. P. C. And keeping in view nature of the grave and sudden provocation, that deceased Mst. Noor Bibi was found by appellant in the company of deceased Allahdad, at the dead of the night, in the Khara of deceased Allahdad, I reduce his sentence from life imprison-- ment to 7 years rigorous imprisonment and maintain the fine of Rs. 3,000 imposed on him by the learned trial Court and dismiss his appeal, with these modifications. However, I direct that the appellant be given benefit of section 382-8, Cr. P. C. In respect of period of his detention as under trial prisoner, towards his substantive sentence, beside other remission to which he may be entitled according to rules.
15. The above appeal stands disposed off in terms of the above order.