' FALAK SHER, J.---Abdul Ghafoor appellant (35) having been convicted and sentenced under section 302, P.P.C. to death on two counts for the murder of Muhammad Ishaq (17) and Mst. Hamid Akhtar (15) with a fine of Rs,30,000 on each count in default to serve 5 years' R.I. Likewise, out of the fine if recovered Rs, 20,000 on each count to be paid to legal heirs of each of the deceased, by the learned Judge, Punjab Special Court for Speedy Trials No, VIII, Sargodha vide the impugned judgment, dated 3-8-1988 has preferred the appeal under consideration.
2. Khan Muhammad P.W.7 an agriculturist on 20-6-1987 at 7-30 p.m. lodged F.I.R. Exh.P.L. with Muhammad Nawaz Khan, S.I./S.H.O., P.W.9 at Police Station Naushera, District Khushab, 12 miles from the place of occurrence Dhok Khaihar Wali Dakhli Khotakka to the effect that he had a son and 6 daughters 5 of whom are married save for youngest of the series Mst. Hamid Akhtar deceased (14/15) and were living at the above address where his married daughter Mst. Sattar Begum (given up as unnecessary) was also putting up for the last one year having entertained matrimonial estrangement, so was the appellant being a son of his maternal niece for the preceding two years having leased in his land for vegetable cultivation as well as Muhammad Ishaq deceased for the last 5/6 days hailing from village Thalia, Tehsil Sohava, District Jhelum with whom they had antiquity of friendly relationship. The appellant having been promised Mst. Hamid Akhtar deceased's hand by his wife Mst. Ghulam Zohra P.W.8, 3/4 years ago subject to the complainant's approval which till then wasn't accorded suspecting that she might be given in marriage to Muhammad Ishaq deceased a day prior to the occurrence taking exception to the latter's stay impressing upon Mst. Ghulam Zohra P.W. for the deceased departure otherwise he will be sorted out left for his village Katha Misral and re-emerging on the scene equipped with .12 bore gun in the late afternoon while Muhammad Ishaq deceased was asleep in the western room with the complainant, Mst. Ghulam Zohra and Sattar Begum, P.Ws. around and Mst. Hamid Akhtar deceased washing up utensils in the courtyard fired two shots in quick succession at Muhammad Ishaq deceased's right chest and flank subsequent whereto abandoning the room aimed at Mst. Hamid Akhtar deceased who ran for life and on chase to Lal Khan's courtyard with the complainant, Mst.
Ghulam Zohra and Sattar P.Ws. on the rescue pursuit fired at her landing on her right hand and chest as a consequence whereof she collapsed on the ground and was supplemented with a second shot in the abdomen, whereafter the appellant waiving the gun vanished away and Mst.
Hamid Akhtar deceased was removed to the complainant's courtyard on a cot where the two deceased succumbed to the injuries.
3. Muhammad Nawaz Khan, S.I. P.W.9 reaching the spot prepared injury statements and inquest reports of Muhammad Ishaq and Mst. Hamid Akhtar deceased Exh.P.N., P.O., P.P. and P.Q. respectively, despatched the dead bodies to mortuary for post-mortem examination under Shera Khan, F.C. P.W.5's escort who the next day tendered last worn blood-stained clothes of Muhammad Ishaq shirt P.1 bearing pellet holes, Shalwar P.2, Vest P.3 bearing pellet cuts, "Parna" P.4, "Khais" P.5 with cuts and burning marks; Mst. Hamid Akhtar's Shirt P.6, Shalwar, P.7, Dopatta P.8 and a sealed phial P.9 containing pellets taken into possession vide memo. Exhs.P.D. and P.E. respectively, got site plan Exh.P.C. prepared from Muhammad Ayub Patwari P.W.2, secured into possession blood- stained earth vide memo. Exhs.P.F. P.G. from their respective places, 4 crime empties P. 10, P. 11 and P.12, P.13 from respective places of the deceased vide memo. Exh.P.H. attested by Muhammad Ayub, Sher Zaman P.W.6 and the investigating officer, blood-stained cot P.15, Chaddar P.16, Pillow P.17 from complainant's house, card ward P.18, two pellets P.19 and P.20 and pair of Muhammad Ishaq deceased's Chappal P.14/1-2 from the complainant's house vide memo. Exhs.P.K. and P.J. respectively, arrested the appellant on 28-6-1987 from Jobba Chowk carrying gun P. 21, bag P. 22 containing 5 live cartridges P.23/1-5 vide memo. Exh.P.M.
' Testifying to the investigation in cross-examination stated that he reached the place of occurrence around 8-45 p.m. the same day, noticed drops of blood between the complainant's house and that of Lal Khan factum whereof wasn't recorded in the inspection notes, refuted the suggestion of having not collected blood-stained earth and crime empties from two different places as well as appellant's arrest and voluntary appearance alongwith the licensed gun, affirming appellant's stance of being engaged to Mst. Hamid Akhtar deceased.
4. Dr. Ghulam Sarwar, P.W.1 on 21-6-1987 around 10 a.m. conducted autopsy on the dead bodies of Mst. Hamid Akhtar and Muhammad Ishaq deceased brought by police identified by Bhai Khan and Ghazanfar Ali (won over P.Ws.) and vide post-mortem reports Exhs.P.A. and P.B. observed the following: "Mst. Hamid Akhtar:
(1) A fire-arm wound with blackening and tattooing 12 c.m. x 6 c.m. with fractured bone (on the back of the right wrist-joint), carpal bone, radius and ulna were fractured. One pellet was removed (near the wound).
(2) A contusion 1 c.m. x 1 c.m. on right cheek.
(3) 6 fire-arm wounds of entry 1 c.m. x 1 c.m. each on the front of chest. Tattooing and blackening was present.
(4) A fire-arm wound 1 c.m. x 1 c.m. with everted edges on the pack of right chest.
(5) Two blackish spots 1 c.m. x 1 c.m. each on the back of chest on left side (two pellets were removed from the spots).
(6) A fire-arm wound 1 c.m. x 1 c.m. with everted edges on left side of chest on posterior axillary line.
(7) A fire-arm wound of entry with blackening and tattooing 5 c.m. x 3 c.m. in left iliac fossa.
Intestines were coming out of the wound.
(8) Four fire-arms wounds with everted edges 1 c.m. x 1 c.m. each above the buttock left." ' card and a pellet removed on follow through injury No,7, 3rd, 5th right ribs and 6th rib on the left fractured, pleura, upper and middle lobe of right lung ruptured, pericardium and peritoneum damaged, stomach containing undigested food, bladder 30 ml. of urine, secondary sex characteristics well developed, uterus, overies healthy, no evidence of recent intercourse, opined cause of death was profused haemorrhage and cardiac arrest from abdominal and chest fire-arm injuries, sufficient to cause death in the ordinary course of nature. Time between injuries and death 10 minutes post-mortem whereof was conducted within 18 hours. In cross-examination stated that injury No,5 was neither wound of entry nor exit, pellets were embedded in the body, absence of hymen doesn't necessarily mean that the deceased was used to intercourse, repelling the suggestion that all the injuries were result of one fire-shot.
"Muhammad Ishaq:
(1) A fire-arm wound with blackening and tattooing 3 c.m. x 3 c.m. on the right side of chest, 7 c.m. below and to the right of right nipple (leading interiorly).
(2) A fire-arm wound 2 c.m. x 2 c.m. with blackening and tattooing in the right nipple (leading interiorly).
(3) 3 wounds of exit (firearm) 1 c.m. x 1 c.m. each, 2 on the left of the back of the chest and one on right back of the chest.
(4) 8 blackish spots were present on the left back cf the chest, 8 pellets were removed with card from interior of the chest."
' 4th to 7th right ribs fractured, pleura ruptured, lungs, pericardium, heart, aortic arch damaged, stomach containing undigested food, bladder 35 ml of urine, opined cause of death haemorrhage and cardiac arrest due to the injuries, ante-mortem, sufficient to cause death in the ordinary course of nature, time between injuries and death immediate post-mortem whereof was conducted within 19 hours.
5. Khan Muhammad complainant P.W.7 testifying to the prosecution story in cross-examination stated that Muhammad Ishaq deceased was Awan by caste and didn't belong to his Bradari, 5 acres of land was leased out to the appellant at the rate of Rs, 15,000 per annum, his Dera had two rooms with no tree or "Chhappar" in the courtyard, Mst. Hamid Akhtar deceased was washing up the utensils in sunshine at a distance of 3/4 paces away from the room where they were sitting in after the injuries she didn't bleed profusely, while placing her on the cot his clothes as well as that of his wife were stained with blood, repelling the suggestion of her having attained puberty a year preceding the occurrence and her formal engagement with the appellant pursuant whereto the latter was lodged there, prevalence of illicit liaison between the deceased and their extermination by the appellant under sudden and grave provocation having spotted them in making love.
6. Mst. Ghulam Zohra P.W.8 corroborating the complainant on all material particulars stated that the appellant was cultivating their entire land and used to live with them with all his belonging including licensed gun, affirming to have not acceded to the appellant's request of turning out Muhammad Ishaq deceased from the house.
7. Muhammad Ayub Patwari P.W.2 deposing A the site plan stated that neither the complainant's house had any boundary wall nor was there any tree or any type of shade in the courtyard, there is a rainy watercourse intervening the complainant's house and that of Lal Khan.
8. The Public Prosecutor tendered in evidence positive reports of the Chemical Examiner as well as that of the Serologist Exhs.P.R. and P.S. qua the earth and....that of the Forensic Science Laboratory Exh.P.T. regarding matching of three crime empties with the crime weapon. While rest of the evidence was of formal nature.
9. The appellant in his statement under section 342, Cr.P.C. admitting the occurrence gave his version thereof in the following terms: "Mst. Hamid Akhtar deceased was my fiance. On the day of the occurrence I found her making love with Muhammad Ishaq deceased in the house of Khan Muhammad, P.W. Under grave and sudden provocation I lost my control and under the heat of passions I picked up my gun from the adjoining room and fired at and killed both of them in the house of Khan Muhammad, P.W." ' and soon whereafter voluntarily appeared before the police alongwith his licensed gun P.21, bag P.22 containing 5 live cartridges P.23/1-5.
10. Learned counsel for the appellant reiterating the appellant's stance urging plea of sudden and grave provocation submitted that with the mens rea lacking the case doesn't fall within the mischief contemplated by section 302, P.P.C. instead is amenable to the rigorous of section 304 ibid to whom learned counsel appearing on behalf of the State as well as that of the complainant joining issue supported the judgment.
11. Having considered the entire evidence of the admitted occurrence, reading the prosecution story in juxtaposition with that of the defence version, the plea of sudden and grave provocation postulated by the learned counsel for the appellant seems to be utterly improbable in the given set of circumstances viz., recourse to the adventurous venture in broad daylight under scorching heat in unguarded courtyard of an abode without boundary walls, shade, tree or "Chhappar" within the immediate vicinity if not view and hearing range of the inmates packed in the room with open door, medical evidence negating fornication, lack of semen stains on their clothes and the vaginal swa bs conjunctively with murdering of Mst. Hamid Akhtar deceased in a neighbour's house on run for life.
12. To the contrary, the prosecution story stands proved through the unimpeached testimony of the complainant alongwith his Mst. Ghulam Zohra P.W.8 who admittedly have no enmity to falsely implicate the appellant corroboration whereto is furnished by the recoveries.
13. However, what immediately preceded the incident, remains shrouded in mystery. Seemingly the deceaseds have been done away with by the appellant being the contemporary contender having sensed,inclination of the complainant to give hand of his daughter Mst. Hamid Akhtar to Muhammad Ishaq in preference to him.
14. Therefore, maintaining the conviction the sentence of death is commuted to imprisonment for life on both the counts to run concurrently in addition to the payment of fine availing the benefit contemplated by section 382-B, Cr.P.C. Accordingly the appeal is disposed of.
Sentence reduced.