QAISER AHMED HAMIDI, J: --Appellant Sohrab was tried by IInd Additional Sessions Judge, Larkana for the offence under section 302, P.P.C., who found him guilty and vide judgment dated 22-6-1989, awarded him capital punishment. The appellant was also directed to pay a fine of Rs. 20,000 or in default to suffer R.I for two years. The fine, if recovered was to be paid to legal heirs of deceased Arbab Ali and Mst. Hawa in equal shares. The appellant has challenged his conviction and sentence by this jail appeal. The learned Additional Sessions Judge has also made a reference for confirmation of the death sentence awarded to the appellant. By this judgment we propose to dispose of the appeal as well as reference.
2. The appellant is son of deceased Mst. Hawa who was a widow. Deceased Arbab Ali, brother of complainant Yar Muhammad wanted to marry Mst. Hawa and in exchange complainant Yar Muhammad had promised to give the hand of his daughter to Ali Sher son of deceased Mst. Hawa and a brother of appellant Sohrab. The appellant was unhappy with this exchange as he himself was interested in marrying the daughter, of complainant Yar Muhammad. It is the case of the prosecution that on 6-6-1983 at about 8 a.m. Appellant Sohrab showered hatchet blows upon deceased Arbab Ali when he had gone to his lands situated in deh Gaad for digging the drain. The incident,, was witnessed by Ghullamullah, a son of complainant Yar Muhammad who had taken breakfast for deceased Arbab Ali. The cries raised by P.W. Ghullamullah attracted Hakim Ali and Shahban who saw this murder. The appellant then went to the lands situated at a distance of 1-1/2 furlongs from the place where Aibab Ali was murdered, where his mother Mst. Hawa was working, and in order to give it a colour of KARO KARI killed her by giving hatchet blows on different parts of her body. Both Arbab Ali and Mst. Hawa died. Ghullamullah went to his father Yar Muhammad and apprised him of the incident. Yar Muhammad visited the places where dead bodies of Arbab Ali and Mst. Hawa were lying. He then went to Dhamrah Police Station and lodged the F.I.R., which was registered at 9-30 a.m. Muhammad Yasin A.S.I. Took up the investigation. He proceeded to the wardats and inspected them in presence of Mashirs Muhammad Soomar and Ali Sher. The dead bodies were then despatched to C.M.C. Hospital, Larkana for post---mortem examination. The police officer then recorded the statements of the witnesses. On 10-6-1983, appellant Sohrab was arrested in presence of Mashirs Ali Nawaz and Muhammad Soomar, who produced blood-stained clothes and hatchets from beneath a Khabbar tree. These article were seized and sealed on the spot. On 11-6-1983. The appellant was produced before Abdul Patch, Resident Magistrate, Larkana, who recorded his judicial confession. After usual investigation the appellant was sent up to stand his trial.
3. When arraigned for the trial on the charge of double murder, the appellant pleaded not guilty.
He, however, admitted the killing of both deceased Arbab Ali and Mst. Hawa when charge was read over to him in the following words: "I was at my house. I went to lands. I found my mother Mst. Hawa and Arbab in intercourse. Both were in naked condition and were in compromising position. On seeing them I was suddenly provoked. I had with me the hatchet, which I usually use to take. I killed KARO Arbab who tried to run away. After receiving my blows he fell down. I also killed KAKI, my mother on the spot. I killed both of them due to grave and sudden provocation and to vindicate family honour."
4. At the trial the prosecution examined Yar Muhammad (P.W-1), Ghullamullah (P.W.2), Hakim Ali (P.W.3), Shahban (P.W.4), Muhammad Soomar (P.W.5), Shah Nawaz P.C. (P.W.6), Dr. Dost Muhammad (P.W.7), Allah Jurio W.H.C. (P.W.8), and Abdul Fateh, Resident Magistrate (P.W.9).
5. In his statement recorded under section 342, Cr.P.C. The appellant admitted to have caused the death of both Arbab Ali and Mst. Hawa, but took the plea of sudden and grave provocation in the following words: "I had killed Arbab and my mother on finding them in compromising position and naked."
The appellant admitted his arrest and recovery of blood-stained clothes and blood-stained hatchet from his possession. He has also not disputed the judicial confession (Ex$.14/A) made by him before Resident Magistrate, Larkana. The appellant has, however, not examined himself on oath. He also led no defence.
6. On the assessm ent of evidence available on record, the learned Additional Sessions Judge did not accept the plea of sudden and grave provocation raised by the appellant and convicted him for the offence under section 302, P.P.C.
7. Exception 1 to section 300, P.P.C, relates to culpable homicide when it is not murder. It provides: "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." '
The above exception is subject to the following provisos: First. -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Second].-- That the provocation is not given by anything done in obedience to-the law, or by a public servant in the lawful exercise of the powers of such public servant.
Third.-- That the provocation is not given by anything done in the lawful (exercise of the right of private defence.
Explanation.-- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question fact.
8. In criminal cases the burden is on the prosecution to prove beyond all reasonable doubt the guilt of the accused. Under Article 121 of the Qanoon-e--Shahadat,1984 the burden of proving the existence of circumstances bringing the case within the mischief -of Exception-I to section 300, P.P.C. Is upon the accused. No doubt the onus to bring the case within exception is much lighter on the accused as compared to that on prosecution, but any one who claims a benefit under this exception must prove the fact entitling him to it.
9. A great deal in this case depends upon the evidence of Ghullamullh (P.W.2), and we have carefully examined it in the light of the circumstances on record to satisfy ourselves whether he was present at the time of incident or it was an un-witnessed crime as pleaded by the appellant.
The case of the prosecution as unfolded in F.I.R (Exh.5/A) shows that the incident took place at about 8 a.m. The evidence of' complainant Yar Muhammad (P.W.1) further shows that deceased Arbab .Ali had gone to the lands for digging drain (Nali). Ghullamullah (P.W.2) son of complainant Yar Muhammad had gone to the lands with the breakfast for his lunlce. The post-mortem report in respect of deceased Arbab Ali is on record (Exh.11/B) and it shows that his stomach was empty, which lends support to the above version of Ghullamullah (P.W.2). Ghullamullah was subjected to cross-examination, but except few minor discrepancies, which mostly consist of matters of detail nothing has been elicited to detract the value of his testimony. Illiterate persons from our villages seldom attach any importance to minor details. No enmity is alleged with this witness. In fact the appellant is related to complainant Yar Muhammad (P.W.1) and his statement to this effect has gone unchallenged. The evidence of Ghullamullah (P.W.2) further shows that deceased Mst. Hawa was not present with deceased Arbab Ali at that time.
10. Hakim Ali (P.W.3), and Shahban (P.W.4) were working in their fields when they were attracted by the cries raised by Ghullamullah (P.W.2). The evidence of Hakim Ali (P.W.3) recites: "I was working in my field P.W. Shahban was also present there at that time. I heard cries of Ghullamullah son of Yar Muhammad and I and Shahban ran after the cries. When we reached near I saw accused Sohrab running away. Ghullamullah was raising cries and Arbab was lying on the ground in injured condition. Sohrab accused told us not to come near because he had killed KARO.
Most probably accused ran towards the south. Deceased Mst. Hawa was also lying dead about one furlong away from the wardat."
11. Shahban (P.W.4) also implicates the appellant in the following words: "I was on my land. P.W. Hakim Ali was also present at the land. I was ploughing my field and thele were cries all of a sudden and I and Hakim Ali went towards the cries. When we were going towards Wardat accused Sohrab came running saying that nobody should come there as he had killed Karo and Kari. I found the dead body of Mst. Hawa about one furlong from dead body of Arbab.
Ghullamullah was present and he was raising cries."
"It is correct that Mst. Hawa, mother of the accused and Arbab were having liaison between them and, therefore, accused killed both of them as Karo and Kari."
12. Besides the admission made by the appellant in his statement recorded under section 342, CI.P.C, and the plea made in reply to the charge, there are following items of evidence to prove that the appellant and none else was responsible for the killing of deceased Arbab Ali and Mst. Hawa: (i)Direct testimony consisting of Ghullamullah (P.W.2)
(ii)Extra-judicial confession of appellant before Hakim Ali (P.W.3), and Shahban (P.W.4).
(i.e)Corroborative evidence of complainant Yar Muhammad (P.W.1).
(iv)Recovery of blood-stained hatchet at the-instance of appellant.
(v)Recovery of blood-stained clothes at the instance of appellant.
(vi)Judicial confession of appellant (Exh.14/A) recorded by Resident Magistrate, Larkana on 11-6- 1983.
13. The question which now arises whether the appellant committed calculated and cold blooded murders of two innocent persons including his own mother (for whom there is no substitute in this world), or he did so whilst deprived of power of self-control on seeing them in compromising position. The first important point to be determined in this regard is as to the actual place of occurrence. The mashirnama of wardat is on record (Exh.9/A), which has been produced by Muhammad Soomar (P.W.5) who has acted as mashir. The evidence of mashir shows that the places there the dead bodies were found were cultivatable lands. There is no suggestion in cross- examination made to this witness that there were bushes or trees which could facilitate the sexual intercourse alleged to have been committed by both the deceased persons by concealing their presence. It was, therefore, not possible for deceased Arbab Ali and Mst. Hawa to have selected that spot for the said purpose. The evidence of Muhammad Soomer (P.W.5) further shows that the dead body of Mst. Hawa was lying at a distance of about 1-1/2 furlong from the place where deceased Arbab Ali was axed to death. No explanation,, was furnished by the appellant in this behalf. Hakim Ali (P.W.3) has, however, tried to fill this gap by making the following statement in cross-examination: "It is correct that accused had killed (sic) Arbab and Mst. Hawa in compromising position, hence he attacked them, but Mst. Hawa went away. It is correct that after killing Arbab the accused killed Mst.
Hawa also at some distance."
14. There are certain inherent improbabilities in this story, Firstly, Mst. Hawa could not have covered a distance of about 1-1/2 furlong during the time when deceased Arbab Ali was being done to death. The story that both deceased Arbab Ali and Mst. Hawa was naked in falsified from the inquest reports (Exhs.9/B and 9/C) which show that both the deceased persons were wearing clothes at the time when they were murdered. Secondly, the judicial confession (Exh.14/A), which the appellant admits to have made voluntarily completely destroys the plea raised by the appellant. The English translation of this confession (Exh.14-A) is reproduced below to understand the correct position: "As the deceased Karo Arbab Khokhar used to live in our neighbourhood and I had suspected him to be Karo with my mother, thereafter, on last Monday, i.e. 6th June, 1983, as I were up early in the morning I saw him sleeping together with my mother in the inner side room. I returned to take hatchet and in the meantime I also saw him and he too saw me and started running towards the lands of Punjabi. I also chased him by taking hatchet and killed him on that land with the hatchet and immediatly thereafter I came back to my house and killed my mother with the same hatchet by declaring her Kari. The police arrested me from my house from village Ali Sher Khokhar and brought me to Police Station Dhamrah and on the spot I handed over the hatchet to the police with which I killed Karo and Kari. Thereafter, Dhamrah police has brought me today here to give this statement. I confess my guilt that I have killed Karo and Kari in ghairat."
15. This brings us to the most important piece of evidence in this case, viz., motive. The F.I.R discloses the motive of this case which we have reproduced in the narrative part of this judgment. Yar Muhammad (P.W.1) has testified the same facts in his evidence. According to him the appellant wanted to marry his (Yar Muhammad's) daughter who was proposed to be given in exchange to his elder brother, and this annoyed him resulting into these cold blooded murders. The complainant has tried to introduce motive of theft also in his evidence, but since it was not disclosed in the earliest version, viz. F.I.R. (Exh.5-A), we do not give any credence to this additional piece of evidence.
16. While considering the case pleaded by appellant and arriving at a certain conclusion in this behalf the whole of the evidence has to be looked into in entirety and not merely his version. The benefit of Exception-I to section 300, P.P.C cannot be extended to the appellant simply because two of the prosecution witnesses have given obliging statements to make it a case of Karo-Kari. The conduct of the appellant, who had disappeared for four days again lends support to the case of the prosecution as unfolded by Ghullamullah (P.W.2).
17. While examining this aspect of the case some pertinent observations were made by a Division Bench of erstwhile High Court of West Pakistan in the case of Gehno and 4 others v. The State, reported in PLD 1964 Karachi 437, and we would like to reproduce the same in this case, which are as follows: "It was argued as to why it was necessary to drag Ghulam Ali inside the shed. Why not kill him straightaway in the lane where he was found. The reason is not difficult to see. It Ghulam Ali had been killed in the lane the defence of grave and sudden provocation on his being found in the shed in a compromising position with the woman would not be available. Cases have been known and which have come to Court where the man is killed somewhere else and then brought to the house of the woman or near about it and then the woman is killed and placed side by side with the man so as to make it possible to plead grave and sudden provocation. It is even known that where a murder is committed out of enmity and not fox the reason of illicit liaison a woman is killed so as to give it an appearance of sex crime, again for the purpose of pleading grave and sudden provocation. Therefore, the story that Ghulam Ali was dragged from the lane inside the enclosure and the shed and killed there and that Mst. Zarina was brought out also in the shed and killed, is not an unlikely one because of this unfortunate and wild concept of vindication of honour and which is invariably followed rightly or wrongly by a plea of ' provocation."
18. The above discussion of evidence brings us to this conclusion that the appellant is guilty for the offence under section 302, P.P.C and he was rightly convicted by the learned Additional Sessions Judge. In reaching to this conclusion we are constrained to disagree with learned AA.-G., who has supported the case of the appellant.
19. The question of sentence has engaged our anxious consideration. The appellant had committed brutal and calculated murders. He tried to give them an appearance of sex crime and for doing so he killed his own mother who had brought him up. There are, therefore, no extenuating circumstances for awarding lessor punishment to appellant. The case of Syed Muhammad and another v. The State, reported in PLD 1964 Karachi 530, is distinguishable, as lapse of more than three years since murder was considered a ground for not enhancing the sentence.
20. In the result, we dismiss the appeal and accept the reference made under section 374, Cr.P.C.