1. ' Z. C. VALIAN1, J.-State and complainant, being aggrieved by judgment dated 10th May, 1980 of the learned Sessions Judge, Khairpur, by which he convicted the respondent Murad Ali only under section 304(1), P. P. C. And sentenced him to R. I. For 5 years and fine of Rs, 2,000 or in default to suffer further R. I. For 7 days and also convicted him under section 13-D, Arms Ordinance and sentenced him to suffer R. I. For one year, both the sentences to run concurrently and acquitted the respondent under section 302/307, P. P. C. Have filed the above Acquittal Appeal and Criminal Revision Application respectively, on the following facts and grounds: ' The prosecution story briefly stated in the report lodged by the complainant Khuda Bukhsh, son of Haji Khan Rind, with A. S. I. P. Muhammad Hayat Rind, at Police Post Setharja on 27th February, 1978 at 7-00 p. m. Is, that the complainant is Assistant Master in the Middle School, Dubi. He daily goes to the School in the morning and returns to his house in the evening. As usual on 27th February, 1978 the complainant had gone to the School to attend his duty in the morning. At about 4-00 p. m. He was returning to his house and when he reached near the village of Moosan Shah, Ali Gul Rind met him. Ali Gul informed the complainant, that there was fight in his village. On such information the complainant rushed to his village, where he found crowd of people and commotion on his land.
2. The complainant found his children and P. Ws. Nawab, Darvesh and other persons at the vardat. He further found his wife Mst. Bhirawan lying murdered, while his daughter Mst. Noor Sain was lying injured by her side. The complainant found blood coming out from the chest injuries of his wife. Mst.
3. Noor Sain had injuries on her right hand and chest. P. W. Nawab informed the corn. Plainant, that on the same day at 4-00 respondent Murad Ali and Kaloo alias Kabli son of Suleman Rinds had committed the murder of his wife Mst. Bhirawan by firing gun at her and they had caused injuries to his daughter Mst. Noor Sain and one Manzoor Hussain Rind and thereafter they had run away towards the village of Haji Atta Muhammad Lund. He further informed the complainant, that respondent Murad Ali was armed with gun and he had fired the gun at Mst. Bhirawan, Noor Sain and Manzoor, while Kaloo alias Kabli was with Murad Ali. After getting this information the complainant left the above witnesses at the vardat near the dead body of his wife Mst. Bhirawan, while he himself went to Setharaja Police Post for report. The complainant further informed the incharge of Setharja Police Post, that the respondent had committed the murder of his wife because he suspected his wife Mst. Noor Sain to be on illicit intimacy with Manzoor and respondent Murad Ali alongwith accused Kaloo have committed this offence.
4. ' A.S.I.P. Mr. Mohammad Hayat on 27th February, 1978 at 7-00 p.m. Recorded the report of the complainant in the daily diary of police post Setharja at entry No,
4. He read it over to the complainant and obtained his signature. The A. S. I. P. Sent the copy of the report to the S. H.
0. Mirwah Police Station, for the registration of crime. Thereafter he examined Manzoor and saw his injuries in presence of Mashirs Sher Muhammad and Abdul Rehman. He prepared the mashirnama.
5. Manzoor was not able to make statement and hence the A, S. I. P. Referred P. W. Manzoor to the Medical Officer, Setharja, for examination, treatment and certificate. The A. S. I. P. Then proceeded to the scene of offence and saw it in presence of mashir Darvesh and Nawab. The complainant pointed out the scene of offence to the police. The place of occurrence was in the land of complainant Khuda Bukhsh and the dead body of Mst. Bbirawan was lying there. Mn. Noor Sain was also lying injured at the vardat. The A. S. I. P. Found blood at the scene of offence and secured the blood-stained earth from the vardat and sealed it in a parcel. He further found one S. B. B. L. Gun and one empty cartridge lying there. The A. S. I. P. Secured the gun and the empty cartridge. He sealed the empty cartridge in a parcel. Some recently cut grass was lying at the scene of offence.
6. There was blood on the grass. The A. S.
1. P. Secured blood-stained grass from the vardat. The A. S. I. P. Prepared the mashirnama. He had prepared separate mashirnama for the recovery of the gun from the vardat. There was fresh smell of gun powder in the barrel of the gun. The A. S. I. P. Sealed the gun and prepared separate mashirnama. The A. S. I. P. Held inquest on the dead body of Mn. Bhirawan and prepared inquest report. The A. S. I. P. Sent the dead body of M. Bhirawan to the Medical Officer, Setharaja, for post- mortem examination, through P. C. Manzoor Hussain. The A.S.I.P. Saw the injuries on Mst. Noor Sain in presence of the above tnashirs and prepared the mashirnama. The A. S. I. P. Could not record the statement of Mn. Noor Sain, as she was also unconscious. The A.S.I.P. Referred Mn. Noor Sain with his letter to the Medical Officer, Setharja, for examination, treatment and certificate. On 28th February, .1978 the A. S. I. P. Saw another scene of offence, which was in the house of P. W. Manzoor in presence of Mashirs Nawab and Ali Dad. The complainant had pointed out that vardat to the police. There was blood at this place also and the A. S. I. P. Secured the blood-staided earth from this vardat and sealed it in a parcel. He secured one empty cartridge from near the place of occurrence and sealed it in a parcel. He prepared the mashir. Nama. The A. S.
1. P. Recorded the statements of P. Ws. Nawab Khan, Darvesh, Mst. Noor Sain and All Dad. Mst. ;Noor SaM was brought back from Setharja dispensary by her father. The A. S. I. P. Had recorded the statement of Mn. Noor SaM, in the house of the complainant. On ist March, 1978 the A. S. I, P.
7. Recorded the statement of P. W. Manzoor Hussain in the Government Dispensary, Setharja. On the same date he went to the village of the complainant and recorded the statement of Ali Gul. On 2nd March, 1978 respondent Murad Ali appeared before the A. S. I. P. Kaloo had also appeared before the A. S. I P. The A.S.I. P. Arrested them, in presence of mashirs Nawab and Darvesh and prepared the mashirnama. On 4th March, 1978 the A. S. I. P. Produced respondent Murad All before the Mukhtiarkar & F. C. M. Mirwah for recording his confession. On 10th March, 1978 the A. S. I. P. Received the Medical Certificate of the injuries of Manzoor and Mst. Noor Sain from the Medical Officer, Setharja. He also received the post-mortem notes of the dead body of Mst. Bhirawan from the same Medical Officer on the date. On 12th March, 1978 the A. S. I. P. Produced P. Ws. Manzoor, Mst.
8. Noor Sain, Alidad, Nawab and Darvesh before the Mukhtiarkar & F. C. M., Mirwah for recording their statements under section 164, Cr. P. C. Thereafter he gave the papers to S. H.
0. Mr. Muhammad Yousif who challaned the respondent in the Court of learned Civil Judge & F. C.
9. M., Mirwah. The blood-stained earth secured from the two scenes was sent to the Chemical Analyser for analysis and report. The gun secured from the vardat and the two empty catridges secured from two different places of occurrence were sent in sealed parcels to the Ballistic Expert, Karachi, for examination and report.
10. ' The learned Civil Judge & F. C. M., Mirwah, had sent the case to the Court of Sessions Judge, Khairpur for trial. Co-accused Kaloo was let of by the Police during the investigation.
11. ' At the stage of trial the charge for offence under sections 302 and 307, P. P. C. And 13-D of the W. P.
12. Arms Ordinance was framed against respondent Murad Ali, who pleaded guilty. He, however, in his plea of guilt stated that he had not committed the murder of Mst. Bhirawan nor caused gunshot injuries to P. Ws. Manzoor Hussain and Mst. Noor Sain intentionally but he claimed that he caused them such injuries killed Mst. Bhirawan under grave and sudden provocation as he saw Manzoor and Mst. Noor Sain, who is his wife, in objectionable position. It is the case of the respondent in his plea of guilt, that on such sight he lost control of his senses and he first fired gun on Manzoor who was "Karo" and then ran after his wife Mst. Noor Sain, who also ran to her mother and as she was taking shelter by her side, he fired at his wife Mst. Noor Sain, when in that firing his wife Mst. Noor Sain and her mother Mst. Bhirawan were hit simultaneously. It is the claim of the respondent, that he caused the injuries to them due to "Ghairat" and according to him Mst. Bhirawan died to the above injuries. In his statement under section 342, Cr. P. C. The respondent repeated the same facts and claimed, that he had found P. W. Manzoor in objectionable position with his wife Mst. Noor Sain in the house of her father and on such sight he followed Manzoor, who went to his house and he fired gun at him and thereafter followed his wife, who ran to her mother Mst. Bhirawan, who was cutting grass in her land and his wife Mst. Noor Sain in order to save herself went to her mother, embraced her from behind and as he fired gun at his wife, Mst. Bhirawan was hit and his wife Mst.
13. Noor Sam n was also simultaneously hit in that firing. The respondent claimed, that he had used the gun which was secured from the vardat during the incident. His case is that he had not intentionally caused the death of Mst. Bhirawan or injuries to Manzoor Hussain or to his wife Ain.
14. Noor San, He stated, that he had made judicial confession and had given true facts of the case in that confession. The respondent claimed, that the confession is both true and voluntary. The respondent further said, that the witnesses are related to the complainant as well as to the deceased and in the "Karo Kari" matter as per Balochi custom the "Karo" has to compensate and bear all the consequences. According to him the witnesses Ali Dad and others are related to Manzoor and they gave evidence against him in order to save Manzoor from the liability of being "Karo", with his wife Mst. Noor Sain. He further stated that the compensation would go to the husband of Mst. Noor Sain and not to her father and therefore the complainant in order to save himself from disgrace has implicated him for the murder of his wife Mst. Bhirawan and murderous assault on Manzoor and Mst. Noor Sain. The respondent examined no defence witnesses.
15. ' In support of the prosecution case, the learned District Public Prosecutor examined complainant Khuda flux at Exh. 12, who produced the report at Exh. 13 and P. Ws. Dr. Gul Muhammad Jumani (Medical Officer) at Exh. 7, who produced the medical certificate of P. W. Manzoor Hussain at Exh. 8, the Medical certificate of the injuries of Mst. Noor Sain at Exh. 9, the final certificate of the injuries of Afst. Noor Sain at Exh. 10 and the post-mortem notes of the dead body of Mst. Bhirawan at Exh. 11, Manzoor Hussain at Exh. 14, who produced the extract of his 164, Cr. P. C. Statement at Exh. 15, Mst.
16. Noor Sain at Exh. 16, who produced one 164, Cr. P. C. Statement at Exh. 17 and the three extracts of her statement under section 164, Cr. P. C. At Exhs. 18, 19 and 20, Nawab at Exh. 21, who produced the mashirnama of the vardat at Exh. 22, the inquest report of the dead body of Bhirawan at Exh. 23, the mashirnama of the injuries of Mst. Noor Sain at Exh. 24, the mashirnama of the recovery of the gun at Exh. 26, the extract of 164, Cr. P. C. Statement of P. W. Nawab at Exh. 26, mashirnama of the second vardat at Exh. 26, the mashirnama of the arrest of respondent Murad Ali at Exh. 26-B Darvesh, Exh. 27 who produced his 164, Cr. P. C. Statement at Exh. 28, Ali Dad at Exh. 29 who produced his 164, Cr. P. C. Statement at Exh. 30, Sher Muhammad (Mashir) as Exh. 31 who produced the mashirnama of the injuries of P. W. Manzoor, A. S. I. P. Muhammad Hayat (Investigating Officer) at Exh. 34, who produced the report of the Chemical Analyser at Exh. 35, the report of the ballistic expert at Exh. 36, and the confession of the respondent at Exh. 37, Muhammad Yousif (Tapedar) at Exh. 39 who produced the sketch of vardat in duplicate at Exh. 40 and H. C. Ghulam Kadir at Exh. 41 who produced the F. I. R. At Exh. 42, while the remaining witneses had been given up.
17. ' The learned trial Court taking into consideration the evidence adduced before it convicted the respondent abovenamed under section 304(I), P. P. C. And 13-D, Arms Ordinance only and sentenced him, as herein-before mentioned and consequently State as well as complainant have filed the above Acquittal Appeal and Cr. Revision Petition, respectively, for altering the conviction of the respondent from 304 (I), P. P. C. To one under section 302, P. P. C. And under section 307, P. P. C.
18. In accordance with law, on the grounds mentioned in the memo. Of above two matters.
19. ' Since above two matters arise out of one common judgment, we propose to dispose of both the matters by this common judgment, ' The learned Advocate appearing for the State in support of Acquittal Appeal submitted as under
(a) That the judgment passed by the learned Judge is against the law and facts of the case. He submitted, that the learned trial Judge seems to have been carried away by the idea, that among Balochis, Karo has to compensate and bear the expenses.
(b) That the reasoning of the learned Judge for arriving at the conclusion that the respondent was guilty of offence under section 304(1), P. P. C. Are neither cogent nor convincing. It is submitted that the learned trial Judge has seriously erred in placing reliance upon the F. I. R. And its contents which is not proper.
(C) That the learned Judge has seriously erred in placing reliance upon the statements under section 161, Cr. P. C. In preference to the evidence recorded in Court.
(d) That the learned Sessions Judge has not applied his mind to the medical evidence fully and the conclusions arrived at by him are not correct.
(e) That the learned Judge has also erred in dealing with the recovery of the gun.
20. ' The learned Advocate for complainant and applicant in Cr. Revision Petition, in support of said petition submitted as under :
(a) That there is no evidence at all on record to prove alleged plea of grave and sudden provocation and as such the trial Court has erred in coming to conclusion, that offence committed by Respondent was culpable homicide not amounting to murder.
(b) That learned trial Court has erred in acquitting the respondent for charges under section 307, P.
21. P. C. In respect of the injuries given by him to P. Ws. Manzoor Hussain and P. W. Mst. Noor Sain in spite of the prosecution evidence brought on record.
(e) In the alternative sentences awarded to respondent are completely inadequate.
22. ' In support of his above contentions, the learned counsel for complainant relied upon cases reported in PLD 1977 SC 14/153 and PLD 1975 SC 275.
23. ' The learned Advocate for respondent on the other hand submitted, that learned trial Court has rightly held on evidence on record, that offence committed by respondent falls under section 304(1), P. P. C. As far as death of deceased Mst. Bhirawan is concerned and rightly acquitted the respondent for charges under section 307, P. P. C. As far as injuries received by P. Ws. Manzoor Hussain and Mst. Noor Sain. He further submitted that sentences awarded to respondent in view of the facts on record are adequate. In support of these contentions the learned counsel for respondent relied upon cases reported in 1980 P Cr. L J 106, 1979 P Cr. L J 816, 1975 P Cr. L J 548 and 1983 P Cr. L J 1365/927. He further submitted, that respondent has already served out the sentences awarded to him. Learned counsel for respondent further submitted, that at the very outset respondent in his judicial confession as well as his statement under section 342, Cr. P. C. Admitted firing of two shots and causing death of Mst. Bhirawan and injuries to P. Ws. Manzoor Hussain as well as Mst. Noor Sain by gun of his brother, for which he had no licence. However he explained that all this was due to grave and sudden provocation which he received by seeing his wife and P. W.
24. Manzoor Hussain in objectionable position, just before the incident, and as such he lost self-control and acted in the manner which resulted in death of Mst. Bhirawan and caused injuries to P. Ws.
25. Manzoor Hussain and Mst. Noor Sain and consequently learned trial Court rightly convicted respondent under section 304(1), P. P. C. Only, as judicial confession of the respondent and his statement under section 342, Cr. P. C. Is fully corroborated by the statements of P. Ws. Darvesh and Mst. Noor Sain and others under sections 164, Cr. P. C. And 161, Cr. P. C.
26. ' We have carefully considered the above submissions made by the learned Advocates before us and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned counsels before us.
27. ' We have carefully gone through the statements of P. W. 3 Manzoor Hussain, P. W. 4 Mst. Noor Sain, P. W. 5 Nawab and P. W. 6 Darvesh as well as P. W. 7 Alidad, the alleged eye-witnesses of both the incidents. It may be noted, that P. W. 3 Manzoor Hussain has given a different motive for alleged incident in which he was injured by respondent. Similarly P. W. 4 Mst. Noor Sain has given a different motive for the incident in question. P. W. 2 Khuda Bux has changed the motive given in the F. I. R. By him, in his statement before the learned trial Court. It is clear from the prosecution evidence on record, that both the shooting incidents were in sequence to each other, but it seems that the prosecution witnesses have given different motives for the same, in order to save the reputation of P. W. 3 Manzoor Hussain and P. W. 4 Mst. Noor Sain. The statement of prosecution witnesses Manzoor Hussain, Mst. Noor Sain P. W. Nawab, P. W. Darvesh as well as P.W. Alidad do not inspire confidence, as these witnesses have tried to deny certain facts mentioned by them in their earlier statements under section 164, Cr. P.C. As well as 161, Cr. P. C., which contradictions have been brought on record. Presence of P. W. 7 Alidad at the time of alleged injuries received by P. W. 3 Manzoor is doubtful, as the motive for his presence does not inspire confidence. We find that statement of P. W. 6 Darvesh under section 161, Cr.P.C. The portions of which have been brought on record by way of contradiction clearly supports the version of the incident as given by the appellant in his confession as well as in his statement under section 342, Cr. P. C., in respect of the appellant having followed his wife Mst. Noor Sain to the field and the manner in which deceased Mst. Bhirawan the mother of Mst. Noor Sain received injuries, at the hand of the appellant. In the face of this state of affairs, the version of the incident given by the appellant in this judicial confession and under section 342/Cr. P. C. Statement looks more plausible, that on account of grave and sudden provocation received by him on seeing his wife P. W. Mst. Noor Sain with P.W. 3 Manzoor Husain he lost his control and after taking up the gun from the house of his brother, he first fired at P. W. 3 Manzoor Husain and in the meantime P. W. 4 Mst. Noor Sain ran away from the place, where they were found together by the respondent and consequently respondent followed her in the field and fired at her, when deceased Mst. Bhirawan came between the said firing Mst. Noor Sain and received the injuries in her chest and as a result of that she died on the spot. It may be noted, if P. W. 3 Manzoor Hussain received gun-shot injuries in a separate and distinct incident as alleged by him, there is no explanation why he did not lodge a separate F. I. R. For the same. This lends support to the contention of the respondent, that it was one incident in which he fired two shots one at P. W. 3 Manzoor Hussain and the second shot at P. W. 3 Noor Sain, which hit the deceased Mst. Bhirawan. It is obvious from the statement of P. W. 2 Khuda Bux (complainant) the husband of the deceased, that he has tried to change the motive given by him in F. I. R. In order to save the reputation of his daughter P. W. And her paramour P. W. 3 Manzoor Hussain. Therefore, we see no reason to disagree with the conclusions and findings of the learned trial court, that the offence committed by the respondent falls under section 30 (I), P.P.C. And not under section 302, P.P.C. As asserted by the State and the learned counsel for the applicant. This conclusion has been arrived at by the learned trial Court after due appraisal of the statements of the prosecution witnesses and on the basis of cogent reasons, with which we are in full agreement. It may further be noted, that the learned Advocate for the respondent has made a statement at the be that the respondent has served out sentences awarded to him and the sentences awarded to the respondent were adequate, in View of the facts of the present case. In support of this the learned counsel for respondent relied upon cases reported in 1980 P Cr. Li 1061, 1979 P Cr. L J 816, 1975 P Cr. L J 548 and 1983 P Cr. Li 1365/927. We have carefully gone through these cases and keeping in view the cogent reasons given by their Lordships in these cases, in respect of the sentences awarded in the said cases, the sentences awarded to the appellant by the impugned judgment dated 10th May 1980 in our opinion was adequate and we see no reason to interfere with said sentences as well as conclusions and findings arrived at by the learned trial Court. Regarding injuries received by P. W.
28. Manzoor Hussain and Mst. Noor Sain, even if the learned trial Court would have convicted respondent, the sentences coal d not have been more than 5 years, in view of the facts of the present case and would have run concurrently with main sentence under section 304 (1), P.P.C. And as such we see no reason to upset judgment of learned trial Court on this account as well as result would be same.
29. ' In view of our above conclusions, we find no force in the contentions urged by the learned Advocate for the State as well as the complainant. The cases cited by the learned Advocates for complainant as well as State are based on different facts and as such not at all applicable to the facts of the above matters.
30. ' Therefore, we dismiss both the above acquittal appeals as well as Cr. Revision Petition filed by the complainant and discharge the bail bonds, if any, executed by the respondent in both the above matters.