1. ' HAZIQUL KHAIRI,J.--By our short order dated 26-3-1990 in Conf. Case No,14 of 1989/Cr. Appeal No,160 of 1989 and Cr. Appeal No, 174 of 1989 we had altered the conviction of the accused from sections 302, PPC to 304 Part I, P.P.C. And reduced the sentence to five years with directions that sentences in both the cases shall run concurrently. Further, we had ordered remission of compensation of Rs,1,00,000 (Rupees One Lac) awarded to the legal heirs of the victims. Now we record our reasoning for passing our said order ' Briefly stated, the said Conf. Case/Cr. Appeal arose out of the judgment of the learned Sessions Judge, Larkana, in Sessions Case No,279/83, State v. Mohammad Bux Tunio under section 302, P.P.C.
2. In which the learned Judge was pleased to convict the appellant and sentenced him to death with a fine of Rs,50,000 or in case of default in payment of fine to undergo S.I. For 5 years. It was further ordered by him under section 544-A, Cr.P.C. That the appellant should pay additional sum of Rs,1,00,000 to the legal heirs of each of the deceased Mohammad Ibrahim and Jamilan as compensation. The other Appeal No,174/89 arose out of Sessions Case No,280/83 in which the learned Sessions Judge, Larkana, had convicted the appellant with R.I. For one year and fine of Rs,1,000 or in default to undergo S.I. For three months only for offence falling under section 13-D, Arms Ordinance.
3. ' In Conf Case No,14 of 1989/CrAppeal No,160/89 the case of the prosecution is that the appellant/accused is a resident of village Sajjan Hakro, Taluka Ratodero and had been suspecting his wife Mst.Jamilan of having illicit relations with one Mohammad Ibrahim, brother of Abdul Sattar, resident of the same village. On 11-6-1983 at about 10.00 a.m. Abdul Sattar complainant heard cries and noise of fire-arm from the house of the appellant. He immediately rushed towards the source of the cries. At the same time his co-villagers All Mohammad and Allah Warayo were also found running towards the said source. On reaching there all three of them saw the appellant giving hatchet blows to the said Muhammad Ibrahim lying on ground inside the room of Abdul Sattar's house. They also saw a gun lying on the ground near the injured body of Ibrahim. They also found Mst. Jamilan wife of the appellant-accused bleeding with hatchet injuries on her person lying on the ground. The said three eye-witnesses asked the appellant not to commit murder to which the appellant-accused replied that he had committed murder of Mohammad Ibrahim and Mst.
4. Jamilan because they were `Karo' and 'Kari'. Thereafter, the appellant alongwith the incriminating hatchet and gun left his house. After the appellant had left the vardat the eyewitnessess found gunshot injury on the right nipple of the victim Mohammad Ibrahim and a bleeding hatchet injury on his head. The dead body of MstJamilan was bleeding with hatchet injuries at her back and neck.
5. The said Abdul Sattar thereafter appeared at police Station Ratodero where on the same day at about 12.00 noon he lodged F.I.R. Which was recorded by A.S.I. Karim Bux Khan as Crime No,56 of 1983 under section 302, P.P.C. Read with section 13-D, Arms Ordinance.
6. ' The said A.S.I. Karim Bux Khan secured blood-stained earth from the place where the dead bodies of the victims were lying and sealed the same in separate parcels under Mashirnama of Vardat.
7. Inquest Report of both the dead bodies was prepared in presence of Mashirs Muhammad Jumman and Muhammad Pinjal. Both the dead bodies were referred to for post-mortem examination report.
8. On 13-6-83, the A.S.I arrested the appellant-accused Mohammad Bux Tunio on the pointation of Mohammad Pinjal in presence of the same mashirs and secured from him one unlicensed single barrel gun of .12 bore in working condition. Two live cartridges of .12 bore were also recovered from the side pockets of the shirt of the appellant-accused which he was putting on. Mashirnama of arrest and recovery of arms and ammunition was made. The appellant-accused volunteered to produce the incriminating blood hatchet and the blood-stained Sadri and loin-cloth which he was wearing at the time of the incident and led the I.O. To his house in Ratodero where he recovered the said articles and produced the same before the I.O. Who secured it in a mashirnama in presence of the said mashirs. On 14-6-1983 the I.O. Examined prosecution witnesses under section 161, Cr.P.C. On 19-6-1983 the I.O. Got recorded 164, Cr.P.C. Statement of the same P.Ws. The blood-stained earth, incriminating hatchet, sadri and loin-cloth of the accused were sent to the chemical examiner through S.P. Larkana. During the trial 11 witnesses including Abdul Sattar, the first informant, were produced. P.W. 1 Abdul Sattar produced and proved Ex.8, F.I.R. P.W.2 Haji Ali Mohammad and P.W.3 Allah Warayo produced and proved their statements recorded under section 164, Cr.P.C. P.W.4 Mohammad Bachal in his statement has narrated that he was the person to whom the first informant had narrated the facts of the incident immediately after its occurrence. P.W.5, one of the two mashirs, produced mashirnama Ex.15 relating to the securing of dead bodies and blood- stained earth from vardat, inquest report, Ex.17, another inquest report, Ex.17, Mashirnama of arrest of accused and recovery of unlicensed incriminating gun and 12 cartridges from him Ex.18 and also Ex.19 regarding recovery of incriminating blood-stained hatchet. P.W. 6, Dr.Nayyar Hussain has produced Exs.21 and 22 being post-mortem reports. P.W.7, Abdul Wahid who had carried the dead body of MstJamilan for post-mortem examination, P.W.8 Hajjan who had carried the dead body of victim Mohammad Ibrahim for post-mortem examination, P.W.10 Shahpar, Tapedar of the Beat who produced Ex.28 being the sketch of vardat (Ex.27), P.W.11 A.S.I Karim Bux, the then incharge of Police Station Ratodero who has also produced Ex.30 being positive report submitted by chemical examiner, incriminating blood-stained hatchet, blood-stained Sadri and loin-cloth of the accused.
9. ' The accused recorded his statement under section 342, Cr.P.0 and admitted that he had committed murder of Mohammad Ibrahim and Mst. Jamilan due to `Ghairar and declined not only to lead evidence but also to examine himself under section 340 (2), Cr.P.C. To disprove the charge.
10. The prosecution has produced ocular testimony of three eye-witnesses, P.W.1, Abdul Sattar, P.W.2, Haji Mohammad and P.W.3, Allah Warayo. The ocular testimony adduced by the prosecution has remained unshaken and materially unchallenged during cross-examination. The testimony of all those three eye-witnesses is said to be corroborative. The testimony of P.W.4, Mohammad Bachal who is the first person to whom the incident was narrated by the accused after occurrence of the crime also corroborates the ocular testimony of all these three eye-witnesses in so far as it relates not only to the nature and places of injuries caused to the victim but also weapon used for causing the same. The judicial confession also stands undisputed and the accused has not resiled/retracted from his statement recorded under section 342, Cr.P.C. Other witnesses have also proved the incriminating recoveries which have remained undisputedly proved and have gone totally unchallenged by the defence.
11. ' The accused Mohammad Bux has not led any evidence to show grave and sudden provocation as his defence which led the learned Sessions Judge to observe that the case does not fall under exception 1 of section 300, P.P.C. He has also referred to the inconsistency in the statement of P.W.3 Allah Warayo in cross-examination to the effect that he had not stated in his 164, Cr.P.C. Statement that the accused told them (P.Ws. 1, 2 and 3) that he had seen the victim in compromising position thereby attributing this inconsistency to the disadvantage of the accused. Again the learned Sessions Judge came to the conclusion that if victim Mohammad Ibrahim had been in compromising position his loin cloth would not have been in between the thighs but it would have been lying by' his side. As to the other victim it was inferred by the learned Session Judge that since Mst. Jamilan's shalwar was in untied condition and her private part was exposed it could have been the result of struggling. According to him, had the semen stains been there, certainly it would have been a good case for defence to make us believe that due to `Ghairat' the accused had committed murder as he had seen both his wife and the victim Mohammad Ibrahim in compromising position. The learned Sessions Judge therefore did not agree with the version of the accused that he had committed murder in question due to `Ghairat' on account of his seeing both the victims in compromising position. The theory of compromising position according to the learned Sessions Judge must have been propounded by the accused to save his skin after realising that he had committed murder for which he can be sent to gallows.
12. ' It is contended by Mr. Nooruddin Sarki, learned counsel for the accused that it can be inferred from prosecution's version that it was a case of grave and sudden provocation and hence falls under exception 1 of section 300, P.P.C. The accused in his confession has stated that he had gone to give water to seeds whereafter the offence was committed which is corroborated by the statement of P.W. Haji Ali Mohammad that the accused challenged us not to come near as he had come from land and had seen his wife in compromising position with the other victim and had murdered them in `Ghairat'. Hence it is contended by him that the accused was confronted with unexpected situation resulting into sudden and grave provocation and he is entitled to the benefit of exception I of section 300, P.P.C. The Sessions Judge, according to the learned counsel, did not apply his mind to the evidence before 'him and had also failed to consider the legal position as stands established by a number of Court decisions. First he placed reliance on Muso v. The State PLD 1969 (W.P.)
13. Karachi 966, in which it was held:-- "It was contended on behalf of the appellant that in view of the circumstances mentioned in the confession in which Sehat was done to death, the offence committed by the appellant would fall under section 304, P.P.C. We are inclined to accept this contention. In the confession, the appellant has stated that when he asked the deceased whether she was on terms of illicit intimacy with Arab Mar, she replied in the affirmative, and this admission highly provoked him and it was on account of `Ghairat' that he killed the deceased. This statement as said above is not proved to be false, and according to us, it was sufficient to give grave provocation. We do not find much difference between the provocation caused by the admission on the part of the woman of illicit intimacy, and that caused by the sight of the woman being in compromising position with a paramour."
14. ' Next, learned counsel cited Mohammad Sharif v. The State, PLD 1987 Lahore 312, where it was held as follows:-- "The appellant's admonishing his wife on her paramour's departure did not minimise the gravity of the situation and the provocation offered. In such a situation even if the wife begs her husband for a pardon and asks for mercy, yet if he kills her, conduct would still be mitigated and he would not be guilty of murder, because it is the gravity of the provocation which is the criterion to determine the conduct of the accused who loses self-control and not the immediate subsequent conduct of the person who offered the provocation."
15. ' Further, it was urged by the learned counsel that when there are two different situations the one more favourable to the accused must be adopted. Reliance was placed on Ghulam Hussain v. The State PLD 1972 Lah. 153 in which it was held:-- "It is well-established that where two alternative interpretations of a particular situation are possible the one favourable to the accused has to be preferred."
16. ' After going through the record before us we are of the view that the learned Sessions Judge has failed to appraise the evidence before him and overlooked some of the cardinal principles of criminal jurisprudence. Indeed the accused has failed to lead independent evidence as to his sudden and grave provocation, nevertheless, there is sufficient material found in the testimony of prosecution witnesses lending support to his defence. Even if P.W.3 Allah Warayo has retracted from his earlier statement under section 164, Cr.P.C. That the accused told them (PWs.1, 2 and 3) that he had seen the victims in compromising position, the same statement of other two eye- witnesses has remained unrequited the benefit of which must necessary go to the accused. The learned Sessions Judge while holding that 'the theory of compromising position must have been propounded by the accused to save his skin' was perhaps led by considerations extraneous to the record, else he was moved by not too worthy evidence of P.W.1 Abdul Sattar, the elder brother of the deceased Mohammad Ibrahim. The learned Sessions Judge has observed "merely on account of the said suspicion murder of both his wife Mst Jamilan and Mohammad Ibrahim cannot reasonably be deemed to have been committed by the accused under sudden and grave provocation". Neither in the deposition of two other eye-witnesses nor in the confession of the accused nor anywhere else there is a word about the accused suspecting his wife having illicit relations with deceased Mohammad Ibrahim. Thus, the learned Sessions Judge completely relied upon the deposition of P.W.1 Abdul Sattar and lost sight of the fact that the deceased Muhammad Ibrahim was his younger brother and clearly an interested witness and in the absence of corroborated and independent testimony his evidence cannot be relied upon. Again there is misconception on the part of the learned Sessions Judge that nothing short of sexual intercourse and presence of semen marks would have evoked the `GHAIRAT' of the accused. Here reference may be made to the views expressed by the Supreme Court of Pakistan in Mohammad Saleh v.
17. State reported in PLD 1965 SC 466, (370) as under:-- "We are unable to see anything in the circumstances to justify the view of the learned Judges that by going in search of his sister, whom he did not find on her cot, when he awoke for Sehri, the appellant can be said to have done anything to cause, or to provoke his sister to give cause for grave and sudden provocation to himself. Under village conditions, and even in many other parts of society in this country, the right of the male members of a family to control the actions of their womenfolk, particularly in the field of sexual relations, is fully recognized and is forcefully maintained. The idea that a young unmarried girl in a village family is entitled to leave her bed during the night and go where she pleases, and that a male member of the family going in search of her is only asking for provocation if he finds her misbehaving in a sexual way, simply cannot be entertained..."
18. As a result we hold that there is sufficient evidence suggesting sudden and grave provocation of the accused and accordingly we alter his sentence from sections 302, P.P.C. To 304, Part I, P.P.C. As above.
19. ' Learned counsel for the accused has also assiduously argued that the award of Rs,1,00,000 as compensation to the legal heirs of each of the victims is unjust as the victims were engaged in immoral act. In support of his contention he has placed reliance on Ghulam Murtaza v. The State, 1985 PCrLJ 1191 in which it is held:-- "The deceased was an immoral person. He was having illicit relations with Shahnaz wife of the accused. There was a fight at an earlier occasion also between the parties for that immoral act of the deceased. His heirs are, therefore, not entitled to any compensation. Reliance is placed on Maqsood Ahmad v. The State (1985 P Cr.L J 2236) for this view."
20. In view of the facts and circumstances of the case we agree with the F learned counsel and accordingly order remission of compensation as above on the ground of public morality.