' Muhammad Amin aged 35 years, his maternal-uncle Din Muhammad aged 50 years, and his employee Karim Bakhsh aged 35 years have filed this appeal against the order, dated 14-5-1988, passed by Syed Muhammad Mumtaz Hussain Shah, Additional Sessions Judge, Bahawalpur, convicting them under section 302/34, P.P.C. (on two counts) and sentenced each one of them to imprisonment for life and a fine of Rs,2,000 or in default thereof to undergo six months' R.I., on each count. They were further directed to pay Rs,2,000 each by way of compensation under section 544- A, Cr.P.C., to the heirs of each deceased or in default thereof to undergo six months' R.I. On the other hand, Sardar Muhammad (complainant) has filed revision (Cr. No,32/1988/BWP) for enhancing their sentence which is not admitted to regular hearing so far. This order shall dispose of the appeal as well as the revision mentioned above, as they are directed against the same impugned order.
2. The occurrence took place on the night between 7th and 8th January, 1988, in the area of Basti Piplan Wali in Village Ahmadpur, District Bahawalpur, wherein Mst. Zubaida Sultana and Muhammad Iqbal were murdered. The incident was reported by Sardar Muhammad (P.W.9)
(brother of Muhammad Iqbal deceased) on the following morning at 5-30 a.m. at Police Station, Khairpur vide F.I.R. (Exh.PK) recorded by Muhammad Saeed, A.S.I. (P.W.13), 1-1/2 miles away from the spot.
3. The prosecution story according to the F.I.R. (Exh.PK) is that Muhammad Iqbal (deceased) used to run an oil agency. On the fateful night at about Isha Wela, Muhammad Iqbal was present alongwith his brother Sardar Muhammad (P.W.9), and Abdul Hameed (P.W.10), at his house. Karim Bakhsh, appellant, called Muhammad Iqbal (deceased) out and took him along on the pretext that he is to get oil from his agency. Muhammad Iqbal while going told his brothers that he will return soon. As he did not return for quite some time, therefore, the complainant felt worried. The complainant along-with his brother Abdul Hameed went to the oil agency to enquire about Iqbal.
When reached near the Dera of Muhammad Amin, appellant, they heard cries. They hurried towards that Dera and saw Muhammad Amin, appellant, in the light of lamp burning there, dragging his own wife, Mst. Zubaida Sultana (deceased) inside the Sahal holding her by her hair and thrown her near Muhammad Iqbal who already lay there with his hands tied with rope. Hearing the alarm Maqbool Ahmad (P.W. 11) and Muhammad Mansoor (given up P.W.) both brothers of Mst.
Zubaida Sultana (deceased) also came there and tried to intervene but they were threatened to stay away otherwise they would meet the same fate. Muhammad Din, appellant, then exhorted his co-accused that both the deceased be taught a lesson for pursuing love affair and be killed, whereupon Muhammad Amin gave repeated Toka blows on the right side of the neck of Muhammad Iqbal. Karim Bakhsh then taking the same Toka gave blows to Muhammad Iqbal.
Thereafter Muhammad Amin gave blow with the same Toka on the neck of his wife Mst. Zubaida Sultana (deceased) and severed her majora neck vessel. All the three appellants then ran away carrying the Toka. Muhammad Amin appellant removed ear-rings and amulet made of gold from person of Mst. Zubaida Sultana while Karim Bakhsh untied the hands of Iqbal and took away that rope with him.
4. A.S.I. Muhammad Saeed, (P.W.13) after recording the F.I.R. reached the spot. He seized blood- stained earth from there and sealed it under memos. (Exh.PD) and (Exh.PE) attested by Sardar Muhammad, Muhammad Arif and Master Karim Bakhsh. He secured Chimni (P.10), match-box (P.10/1) from there vide memo. (Exh.PF) and handed over the investigation to the S.H.O., Ali Akbar, Inspector (P.W. 14), who secured shoes (P.16) of Zubaida Sultana (deceased) lying at the place where she was sleeping before the occurrence, vide memo. (Exh.PH). He arrested all the appellants on 8-1-1988. Muhammad Amin on the same day got recovered his blood-stained clothes (P.11), (P.12) and Toka (P.13) at his pointation from his residential Kotha, which were secured under memo (Exh.PF/1). Muhammad Amin also got recovered golden ear-rings (P.14/1-2) and amulet of gold (P.15) of his deceased wife from a box which were taken into possession vide memo. (Exh.PG).
Karim Bakhsh, while in custody led to the recovery of blood-stained Chaula (shirt) (P.18), Chaddar (P.17) and blood-stained rope (P.19) from his house which were sealed and seized vide memo.
(Exh.PJ). All these memos. were attested by Muhammad Arif (P.W.8) and the Investigating Officer.
The dead bodies were sent to the mortuary under police escort after preparing inquest report etc. Toka (P.9), rope (P.19) and clothes of Muhammad Amin and Karim Bakhsh, appellants (Exhs.P.11-12 and P.17 to 19) were found as stained with human blood vide Chemical Examiner's Report (Exh.PU) and and that of Serologist (Exh.PV).
5. Dr. Muhammad Siddique Tahir (P.W.12) on 8-1-1988 performed post mortem examination on dead bodies of Mst. Zubaida Sultana and Muhammad Iqbal, the two deceased, and found the following injuries on each dead body:--- INJURIES ON THE PERSON OF MST. ZUBAIDA SULTANA
(1) There was an incised wound starting from the outer margin of sterno cicoid muscle of right side of neck below the ear lobe up to the left sterno cicoid muscle of the left side cutting it also on the upper part of the neck. Below the chin it was cutting thyroid bone, trachea, ocsosophagus and sharply cutting vertebrae fifth, sixth and seventh below and all the major blood vessel and nerves on both sides of neck. This wound was 6 c.m. This injury was ante-mortem and fatal".
' There was no secretion from vagina and no stain was present on volvae and perinum. The time between the injuries and death was immediate and between death and autopsy was 8 to 12 hours.
INJURIES ON THE PERSON OF MUHAMMAD IOBAL DECEASED,
(1) 4 c.m. x 3 c.m. incised wound on right side of neck cutting sternoclioid muscle and blood vessels.
The injuries go up to vertebrae (cervical) and cutting it sharply.
(2) There is incised wound 4 x 3 c.m. just adjacent at the first injury. Only tage was present between the two. It cuts thyroic bone, trachea oesophagus and all major blood vessels.
(3) Incised wound 4 x 2 c.m. cervical vertebrae deep on left side on neck 3 c.m. above medial margin of left clavical.
(4) 8 c.m. x 3 c.m. incised wound on left mandible bone sharply cut.
(5) There was a ligature mark 1/2 c.m. x 1/2 c.m. on both wrist-joints.
(6) Abrasion 1 x 1 c.m. on the left elbow.
' Injuries Nos.1 and 3 were fatal. All the injuries were ante-mortem. No secretion was coming from the urethral opening, and no stains were present on pubic hair of perminum. Injuries Nos.1 to 4 were fatal and ante-mortem. The probable time between the injuries and death was immediate and between death and post-mortem was 8 to 12 hours.
6. The prosecution relied on the ocular evidence furnished by Sardar Muhammad, complainant (P.W.9), Abdul Hameed (P.W.10) and Muhammad Maqbool (P.W.11); the incriminating recoveries deposed to by Muhammad Arif (P.W.8) and Ali Akbar (P.W.14) besides the medical evidence. When examined under section 342, Cr.P.C. Muhmmad Amin raised the plea of grave and sudden provocation in reply to question No,11 which reads as under:--- "The real fact is that Iqbal deceased had illicit intimacy with Mst.
' Zubaida Sultana deceased. I stopped him from visiting my house and from indulging in his sinister act. I also asked his brother and father to stop him but in vain. I was away to my Tubewell on the night of occurrence. I returned to my house at about 11-30 p.m. I heard whispers in the Sahal and on peeping into it, I saw Mst. Zubaida Sultana and Iqbal sitting in an objectionable position. On seeing them together at the time alone there, under grave and sudden provocation, I injured them with hatchet, I was holding. I then went straightaway to the P.S. Khairpur with hatchet and blood-stained clothes to inform Ali Akbar Inspector about my "Ghairat". We came to the spot, he called the brothers of the 2 deceased and made them false witnesses. P.Ws. did not see the occurrence. The other 2 accused did not participate in the occurrence."
' The remaining two appellants denied their presence and participation in the occurrence. No defence evidence was produced. The learned trial Court considering the material on record, discarded the defence version and accepting the prosecution case found all the appellants guilty under section 302/34, P.P.C. and sentenced them accordingly as indicated above.
7. Learned counsel appearing on behalf of the appellants argued that the testimony of the eye- witnesses is not worth reliance. The incriminating recoveries are fake. He emphasized that the defence version given out by Muhammad Amin is not only probable but also convincing as one of the deceased, Mst. Zubaida Sultana, is his wife, whom he saw Ilagrante delicto' with Muhammad Iqbal (deceased) therefore, learned trial Court has erred in not extending its benefit to the appellants by convicting Muhammad Amin (appellant) under section 304, Part I, P.P.C. and acquitting the other two. Learned counsel appearing on behalf of the State has defended lower Court's judgment whereas learned counsel for the complainant added that since the prosecution case has been proved to the hilt, therefore, the appellants deserve to be awarded extreme penalty of death which should be imposed in exercise of the revisional jurisdiction of this Court.
8. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record carefully. The factum of death of the two deceased with Toka blows and at the time as mentioned by prosecution is not disputed. Again, it is a common ground between the parties that the occurrence took place inside the Sahal/Dera of Muhammad Amin (appellant).
However, they differ about the manner in which the occurrence had taken place and also about the number of the accused who participated in the occurrence. According to the prosecution, Muhammad Iqbal (deceased) had been taken away from his house deceitfully by Karim Bakhsh, appellant, on the pretext that he should give him oil from his oil agency and then he was secured and tied up in the "Sahli" of Muhammad Amin and subsequently, Muhammad Amin, appellant, brought there his wife Mst. Zubaida Sultana (deceased) from his nearby abode and then both of them were done to death with Toka blows given by Muhammad Amin and Karim Bakhsh, appellants, at the instance of Muhammad Din, appellant. To the contrary, the defence version is that Iqbal had illicit connections with Mst. Zubaida (deceased). On the fateful night, Muhammad Amin on returning home from his fields found both the deceased in objectionable position and under grave and sudden provocation he lost self-control and caused them injuries with hatchet, he was carrying at that time. The question for determination, therefore, is that which of the two versions is correct?
9. The prosecution version is supported by three eye-witnesses, namely, Sardar Muhammad (P.W.9), Abdul Hamid (P.W.10) and Maqbool (P.W.11). The last-mentioned P.W. is the real brother of Mst. Zubaida (deceased) while the former two are real brothers of Muhammad Iqbal (deceased).
The case, therefore, turns on the fact whether or not these P.Ws. were present at the relevant time.
Having considered the entire evidence on record and the attending circumstances, I have come to the conclusion that the prosecution story is highly improbable and that the presence of the eye- witnesses is doubtful for the reasons enumerated hereunder, --- Sardar Muhammad (P.W.9), the brother of Muhammad lqbal deceased, stated that at Isha prayer time, Karim Bakhsh, appellant, took Muhammad Iqbal (deceased) with him for purchasing oil from his agency. For about 3-4 hours they waited for his return but he did not come back, therefore, he alongwith his brother Abdul Hamid (P.W.10) went to deceased's oil agency to enquire about him. According to him, the distance between the oil agency and their house is about one mile and house of Maqbool P.W., brother of Mst. Zubaida deceased, is also at a similar distance from the place of occurrence. Sardar Muhammad (P.W.9) and Abdul Hamid (P.W.10) stated that they happened to pass near the Dera of Muhammad Amin, appellant, at the relevant time when they heard shrieks of Mst. Zubaida who was being dragged towards the "Sahil", the place of murder. The story told by this witness does not seem to be true for the reason that if Muhammad lqbal had been decoyed 3-4 hours prior to the occurrence then the accused would have killed him within an hour or so particularly when both Muhammad lqbal and Mst. Zubaida were in their clutches so why should they delay it for 3-4 hours? Condition of food found in stomachs of both the deceased shows that they had taken food little before their death. This also belies the prosecution story that Muhammad Iqbal (deceased) took his meals at Isha prayer time and that he was done to death 3-4 hours later, for, in that case the food would be semi-digested. It appears that they have shifted time of occurrence to make believe the Court that the witnesses reached the spot meanwhile in search of Muhammad Iqbal (deceased) and saw the occurrence. Furthermore, Maqbool P.W. and Sardar Muhammad and Abdul Hameed P.Ws. live at a mile's distance from the place of occurrence. It is not, therefore, believable that when the appellants were executing their plan to kill both the deceased, at that very moment, the real brothers of the deceased happened to be passing near the place of occurrence and having been attracted by shrieks of the deceased chanced to see the occurrence.
Maqbool P.W., real brother of Mst. Zubaida (deceased), stated that at particular hour of occurrence he had gone to the house of Muhammad Arif, his maternal-uncle, for giving medicine to the wife of Muhammad Arif and there he heard the cries of the deceased and reached the spot. If it were so then why Muhammad Arif, owner of the house, failed to reach. All these circumstances coupled with the fact that Sardar Muhammad, complainant, lodged F.I.R. in the case next morning at 5-30 a.m. indicate that the relatives of the deceased learnt about the murder of Muhammad Iqbal (deceased) in the morning and after deliberations they tailored instant story in collaboration with the police and then prepared the F.I.R.
10. The prosecution story appears to have been woven in a way to show active participation of each accused in the occurrence to get them convicted and punished. The story that there was only one Toka, the weapon of offence, which was used by all the three accused/appellants turn by turn for injuring the deceased is absurd. Again, the story that after having killed the two deceased, Karim Bakhsh, appellant, while running away took with him the piece of worthless rope with which hands of Muhammad Iqbal (deceased) were tied. Obviously, it was introduced to subsequently show its recovery from him. It is noteworthy that, according to the F.I.R., Din Muhammad had exhorted his co accused/appellants to kill both the deceased for their pursuing the love affair, but at the trial the witnesses improved their statements saying that he (Din Muhammad) had held the deceased by his legs while Muhammad Amin gave Toka blows to the deceased. This story does not find mention in the F.I.R. It appears to have been introduced for ascribing overt act to each appellant for achieving his conviction in this murder case.
11. For what has been stated above, I am of the firm view that at the time of occurrence the so- called eye-witnesses were not present, therefore, the statement of Muhammad Amin, appellant, who pleaded to have killed both the deceased under grave and sudden provocation is reasonable and probable. Merely because semen secretion was not found on the private parts of the deceased, is not enough to discard the defence version and if it is done so then there would remain no evidence whatsoever on the record to connect the appellants with the crime. I therefore, accept Muhammad Amin appellant's statement, and hold that Karim Bakhsh and Din Muhammad, appellants, were not present and that Muhammad Amin alone, as stated by him had killed both the deceased in Ghairat in a fit of anger. Consequently, Karim Bakhsh and Din Muhammad, appellants, are extended benefit of doubt and are acquitted of the charge. They shall be released if not required to be detained in any other case. The conviction of Muhammad Amin, appellant, is altered from section 302, P.P.C. to section 304, Part I, P.P.C. on two counts and he is sentenced to five years' R.I., and a fine of Rs,2,000 on each count. In default of payment of fine he shall further undergo 6 months' R.I. The amount of compensation imposed as penalty is, however, remitted for the reason that both the deceased were of bad character. The sentence shall, however, run consecutively. The revision petition (Cr. Rev. 32/88) fails automatically.