1. ' MUHAMMAD Al-LAL ZULLAH, CJ.---This appeal through leave of the Court is directed against the dismissal by the High Court of appellants' Criminal Appeal and affirmation of their conviction under sections 302 and 449, P.P.C. And sentences including life imprisonment together with fine on two counts of murder. Leave grant order which is based on and includes two conflicting opinions, reads as under: "Ist Hon. Judge "Zahid Pervaiz aged 20 years and his brother Muhammad Aslam aged 26 years have jointly filed a petition for leave to appeal from jail against their conviction under section 302/34, P.P.C. (two counts) and under section 449 P.P.C.
2. ' On the 22nd of October, 1983 at about 11.30 p.m., Bashir Ahmad aged 50 years, the father of the complainant Mst. Sabiran Bibi (P.W.10) and her brother Amanat Ali aged 18 years were murdered by knife blows while asleep in the house. Mst.Sabiran (PW-10) and Niamat Ali (P.W.11) another brother of Mst.Sabiran witnessed the occurrence. Mst. Sabiran lodged the report at 6.05 a.m. At the police station on 23-10-1983. She charged the petitioners for causing their deaths by giving knife blows.
3. Zahid Pervaiz was arrested on 4-11-1983 and led to the recovery of the blood-stained knife (Ext.16) buried in the fields. The motive for the occurrence given out was that Amanat Ali was suspected of maintaining illicit relations with Mst.Bushra Bibi (D.W.3) sister of the petitioners. It was also the prosecution case that in furtherance of the motive, that very night the two petitioners also caused knife injuries to their own sister Mst.Bushra Bibi (D.W.3).
4. ' The occurrence resulting in the death of Bashir Ahmad and Amanat Ali and injuries to Bushra Bibi, was admitted but a different version was provided which appears in the statement of Zahid Pervaiz, petitioner, in the following words: ' Actually the occurrence took place in this manner; that on the night of occurrence at about 9 p.m.
5. My sister Mst. Bushra went to village field for answering the call of nature, but she did not return to her house up to 11 p.m. This created anxiety in my mind and I alone went in search of her. On that day, Mst. Yasmin and Allah Ditta had come to our house for fixing date of marriage of Mst. Bushra with Qayoom with whom she had been already betrothed. When I reached near the house of the deceased, I heard hue and cry of Mst.Bushra Parveen. I saw inside the house and found that the two deceased were forcibly dragging Mst. Bushra from the room to the courtyard; they were also causing injuries to her with chhuris; I under sudden and grave provocation as well as to save the life of my sister, jumped into the courtyard of the house of the two deceased and with a pen knife which I already had caused them injuries; after rescuing my sister I took her to my house. On the way, her injuries bled. Her blood had also fallen on the floor of our house.
6. ' Muhammad Aslam denied his participation in the occurrence and stated that he was away from the scene and was attending to the guests in his own house.
7. ' The prosecution case rested mainly on the statement of the two eye-witnesses Mst. Sabiran (PW- 10) and Niamat Ali (PW.11). The petitioners produced in defence five witnesses. Mst.Bushra Parveen (D.W.3) made an unispiring statement that she had for the first time in her life gone to the fields to answer the call of nature at that house and she had seen Amanat Ali on that night for the first time who had forcibly taken her to his house. Her age is recorded as 20 years and she admits to be a student of Government College. The injuries on her person were fourteen in number and all were incised wounds.
8. ' The two Courts have appraised the entire evidence and have come to a conclusion which does not appear to suffer from any infirmity. They have rejected the defence version and believed the two eye-witnesses who are natural witnesses. The recovery of the knife from Zahid Pervaiz and the number of injuries on Mst.Bushra (DW.3) provide the corroboration, if any, was needed. The plea taken up by the petitioners is palpably untenable.
9. ' There does not appear any merit in the petition and I am of the opinion that leave to appeal be refused."(Sd.)
10. Opinion of 2nd Hon'ble, J.-- "After going through the record I feel that the High Court seems to have ignored some important features of the case. The sister of the petitioners suffered fourteen serious incised wounds one being on the neck 10 cm X 4 cm. It is unlikely that they caused them "to create defence". The victims were asleep inside two separate rooms when injured. One death according to the doctor was immediate. The incised wounds are such that there must have been professed bleeding. Yet no blood was found from underneath the cots. And the dead bodies were found outside in the courtyard--one at a distance of 35 feet (according to the site plan). Over and above that; there was no trail of blood. The door of the courtyard was chained from inside, therefore, the prosecution suggested; through a wajtakkar witness -- Nazir P.W.9, that the culprits scaled over the wall. But this part of his statement was not supported by his version before the police with which he was duly confronted in cross-examination.
11. ' A very strong possibility cannot be excluded that the eye- witnesses have not told the true story.
12. That is why the trial Court had to make the following observation:-- ' According to Mst.Sabran Bibi, the accused had started suspecting illicit relation of their sister about 15 days before the occurrence. No untoward incident took place prior to the occurrence between the parties. Naturally something would have happened newly which infuriated the accused to commit the offence on that day. The. Suspicion about the visit of their sister to the house of the deceased on the fateful night, cannot be ruled out.
13. ' The complainant herself admitted in the F.I.R. That the accused had even suspicion that Muhammad Bashir deceased was helping his deceased son in his affair with Mst. Bushra instead of restraining him.
14. ' It would need examination whether, on account of understandable reasons in a case like the present one, both parties have not introduced vital falsehood in their respective versions. If so whether the Court is not duty bound to try to discover the true version on the authority of Bepari's case PLD 1962 SC 502, so as to determine the nature of offence. If so, if the petitioners are found guilty, they have not committed the offence under section 304-1, on the basis; that a reasonable possibility cannot be .Excluded that in reality (partly withheld by both sides) they acted on grave and sudden provocation; when killing the two victims and nearly killing their own sister Mst.Bushra.
15. ' I would therefore, with respect, grant the leave to appeal." Opinion of the 3rd Hon'hle 1.-- "I agree with H1(2)."
16. "ORDER ' Leave to appeal is granted."(Sd.) by all the three Hon'ble Judges.
17. ' Learned counsel for the appellants has taken us through the relevant parts of the record. During his arguments he has not been able to take the case of the appellants beyond what is noted in the second opinion, already reproduced.
18. The' finding by the learned trial Court reproduced above regarding what could be the background and immediate reaming for this unfortunate double murder, is not only significant but also very weighty. The parties had not suffered any serious estrangement prior to the occurrence. On the other hand the testimony of the prosccutrix reveals that they were also on casual visiting terms. It also appears that but for Mst. Bushra's incident there might not have been any murder at all. Thus it could be assumed as a sound premises for further examination that the two murders have nexus with Mst.Bushra's incident and also could be in consequence thereof.
19. ' In the light of what has been stated above it is necessary to assume that the large number of injuries on the person of Mst.Bushra and the selection of peculiar location to inflict the same by the assailants cannot be the result of what Zahid Pervaiz appellant would like the Court to believe; namely, that the deceased side were inflicting these injuries of her person to prevent her from escaping after the alleged forcible abduction. On the other hand it is more in accord with natural human conduct and high probabilities that such number and type of injuries were inflicted by the appellants but in a highly charged emotional state of mind. Otherwise too there is no explanation for their having inflicted such large number of injuries on her. It is not possible to assume that they did so for creating a plea for self-defence. As observed in the leave grant order the location and the nature of injuries is such that it could hardly be assumed to be self-suffered or self-inflicted.
20. The prosecution thus having failed to explain the injuries on the person of Mst.Bushra and the accused having withheld whole truth regarding their having almost killed their own sister, the only alternative for the Court was to follow the guidelines given in the famous case of Syed Ali Bepari L D 1962 Supreme Court 502). Thus it is not only legally possible but also a legal necessity to act on the third highly probable version which is shorn of the embroidery and falsehood introduced by both the interested parties. The law of evidence also permitted the Court "after considering the matters before it" to act on genuine probability and adopt this course. The definition of "proof', reads as follows:- "A fact is said to be proved when, after considering matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
21. ' In this case in the light of what is stated in the leave grant order as also discussed above it is highly probable that Mst.Bushra having been taken away by Amanat deceased, she was still in the house of the deceased when the appellants came to know about it. They went there, caused injuries to all three of them and retrieved their honour to their house. That is why the blood was also found in their house by the investigator. This act would fall under exception I (relating to grave and sudden provocation) to Section 300, P.P.C., Accordingly the offence committed by them would fall under section 304, Part-I, P.P.C. Their appeal, therefore, is partly allowed. Their conviction and sentences under section 302, P.P.C. Arc set aside. Instead the conviction is altered to one under section 304 Part 1, P.P.C. The sentence of imprisonment for the said offence on account of grave and sudden provocation is awarded as already undergone. It is fairly substantial. The sentence of fine and the imprisonment in lieu thereof is maintained. The entire fine when recovered shall be.
22. Paid to the heirs of the deceased. The conviction under section 449, P.P.C. In the circumstances that the appellants went into the house of the deceased to retrieve their sister is set aside as it would not amount to culpable trespass in the circumstances of this case. If the fine is paid they shall be released forthwith in case they are not required to be detained in any other matter.