1. ' MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against judgment dated 28-4-1979 of the Lahore High Court, whereby appellant's conviction under section 302, P.P.C.
2. For the murder of Mst. Sardaran, his sister and Mst. Zohra, the daughter of Mst. Sardaran, was upheld and the sentence of death as also fine awarded to him was confirmed.
3. ' According to the prosecution, the appellant, an unmarried young man wanted Mst. Sardaran deceased, his sister, to arrange the marriage of Mst. Zohra, his niece, an unmarried young girl in such a manner so as to facilitate appellant's marriage in what is customarily known as Watta marriage/arrangement. She had not agreed to this, Therefore, allegedly, the appellant had a motive to murder her. It was also asserted as the second motive that the appellant and/or his father used to give cash assistance to Mst. Sardaran who was a widow with a view to achieve the aforestated purpose of the marriage of the appellant but she neither accounted for the money nor was helpful in the marriage arrangement.
4. ' Accordingly, for the above motive, the prosecution case was that on 12th of September. 1973, the appellant inveigled both Sardaran and Zohra, deceased, to visit their maternal ancestral house in village Jalalpur Jattan for doing some house repair work in it. The two ladies obliged him and reached the said house before noon. The appellant also reached there shortly before the occurrence which took place at 1-45 p.m. Mst. Zohra was inside the house. He abused her and then repeatedly gave her several Chhuri blows. The eye-witnesses, namely, Muhammad Zaman and Muhammad Arif (brothers of Mst. Zohra) and Muhammad Sadiq and Bashir Ahmad saw the occurrence but on account of fear did not prevent the appellant from so brutally attacking Mst.
5. Zohra. Thereafter, the appellant, it was further asserted, came out in the street in pursuit of Mst.
6. Sardaran and found her in the street and similarly attacked and caused her several blows with the same Chhuri. Having accomplished this gruesome task, the appellant ran away towards bus- stand where he was apprehended by the police and other bystanders. Blood-stained Chhuri was taken from his hands. His clothes which were also then blood-stained were also taken into possession. Both the articles were subsequently, on chemical analysis, found to be stained with human blood.
7. ' In answer to the afore-stated ocular evidence, the recovery and the motive, the appellant's plea was of total denial. He made the following statement at the trial:-- "Mst. Sardar Bibi deceased was my real sister. She received about Rs. 6,000 from my father on the pretext that she would get me married in exchange after giving the hands of her daughter Mst.
8. Zohra deceased to some body else but after a year of the death of her husband both the mother and daughter started leading immoral life and nobody was willing to get the hand of Mst. Zohra. I demanded the money back and on the refusal, I abused and beat Mst. Sardar Begum sometime before her death. The relations between us got strained. I have been falsely implicated in this case.
9. I am innocent. I lived in Chak Mehmda with my parents and other family members since 1970 and had nothing to do with the ancestral house in Jalalpur Jattan as that house was given to my uncles Lal and Hakam by means of a private partition. I was apprehended by the police from Chak Mehmda after evening time and the police fabricated this case against me."
10. ' The learned Courts below relying on the prosecution case and evidence did not accept his explanation containing a parallel version regarding false implication, and, convicted and sentenced the appellant as noticed earlier. At the stage of grant of leave to appeal, after hearing the learned counsel then appearing for the appellant, the finding that he was guilty of murder was upheld as follows:-- "Learned counsel for the petitioner has taken us through the relevant parts of the prosecution evidence. There is enough material on record to show that the petitioner has rightly been convicted under Section 302, P.P.C. For the double murder. He was caught almost red-handed. The occurrence is of day-light in a thickly populated locality. It is a single accused case and is supported by eye-witnesses. Nothing has been discovered to show that the appreciation of evidence by the learned Courts below in so far as the responsibility for killing the two deceased is concerned, suffers from any defect of law or principle. We accordingly affirm the finding of guilty."
11. Leave to appeal, however, was granted to examine various features of the prosecution case so as to determine whether the appellant could not be awarded lesser sentence of imprisonment for life.
12. The main questions in this behalf were whether it was not reasonably possible that the appellant acted as he did on account of motive of honour under a belief that the deceased were of immoral character and were in the habit of indulging in acts of immorality in their ancestral house mentioned above-- they used to live somewhere else. In case it was not possible to render an affirmative answer to the above question, whether it was not reasonably possible to hold that the motive alleged by the prosecution was neither proved nor was it such that if proved it was sufficient for the appellant to commit the murder of his real sister and her real daughter, the former a widow and the latter an orphan; if so, whether the real motive has not been withheld by the prosecution and that it remains shrouded in mystry.
13. ' With the help of both the learned counsel, appearing in this appeal, we have gone through the relevant pieces of evidence. The salient features of the case regarding motive which emerge from the examination of the evidence are as follows:-- "(i) Keeping in view the close relationship between the parties, the motive alleged by the prosecution, was not strong enough to commit two murders. In any case, in that context even a very depraved person would have no strong motive to kill his real niece who according to the prosecution, was not herself involved in the so-called money matter or the Watta marriage arrangement. It was all between her parents and the elders of the family;
(ii) Even if there was a motive, though weak, to murder Mst. Sardaran, the appellant after her death might have been in a position to arrange Mst. Zohra's marriage as her maternal uncle in such a manner to secure a bride for himself also, therefore, the murder of Mst. Zohra does not at all fit in in the alleged scheme of the appellant;
(iii) If as asserted from the prosecution side particularly in the testimony of the two sons of Mst.
14. Sardaran, as PWs, there was a serious dispute between Sardaran on one side and the appellant on the other on the aforestated matters and he was in the "habit of abusing her it was most unlikely that he would have requested the deceased and they would have agreed and obliged him to come to Jalalpur Jattan for doing some manual work for his sake of repairing a house;
(iv) The appellant not only raised the plea of bad character of the women before the trial Court but had also through his conduct from the very initial stage of the investigation, protested against his involvement on this very plea. Even if the words uttered by him then are to be excluded as a statement before the police, his protest/conduct of innocence could be noticed, particularly when it is not inculpatory, because, if it would have been so then the position might have been different;
(v) The medical examination revealed that there were innumerable injuries on the two dead- bodies much more than were necessary to kill each one of them. It appears that the appellant for whatever motive it was, did so at a time when he was highly charged with an emotion of anger;
(vi) Although the doctor found marks of injuries on legs and thighs of the deceased, curiously enough the blood-stained Shalwar of Mst. Zohra had no corresponding cut marks, which, could only lead to an argument that she was not wearing this or any Shalwar at the time of the occurrence;
(vii) The doctor had taken vaginal swabs from the bodies of both the deceased. According to the investigator they were sent to the Chemical Examiner. The result, if any, has not been produced. It is very difficult to state as to what was the result, but, the fact that it was not brought before the Court if not more would at least raise a serious suspicion with regard to the clean conduct of the prosecution case; and
(viii) Although the sons of Mst. Sardaran who appeared as PWs denied that their mother and sister did not enjoy good reputation yet one of the independent witnesses admitted that they had the notoriety of immorality.
(ix) Keeping in view the nature of evidence and all the other circumstances of the case including those mentioned in the foregoing analysis, it might not be possible to give a definite finding that the appellant, immediately before the attack, saw something which provoked him suddenly and gravely, but, it would be possible to reach the reasonable conclusion that his suspicion about the immoral conduct of the deceased lurking in the mind of the appellant, was not unfounded.
15. However, as the reputation of an unmarried young girl is involved, after death, we would in such a case refrain from making any further comment regarding her character.
16. Another hypothesis, however, is available in this case. Is the circumstances narrated and noticed above it is clearly established that the motive alleged from the prosecution side was not only weak for committing the murder of two ladies closely related to the appellant put also it does not find adequate support from independent circumstances. Rather, the circumstantial evidence contradicts this motive. Thus, it becomes a case in which the motive alleged by the prosecution having not stood the test of scrutiny stands disproved and keeping in view the aforestated considerations, we will also treat it as a case of the motive remaining shrouded in mystry. In either case, the appellant would become entitled to reduction of sentence. We, therefore, while partly accepting this appeal, reduce the sentence of death to imprisonment for life. The sentence of fine is upheld and is maintained as awarded.