' SARDAR MUHAMMAD DOGAR, J.---Muhammad Yaqub (23 years) was tried by A.S.J., Rajanpur, for having murdered his sister Mst. Surraya in his house on 24-8-1984 at 5-30 p.m. in village Shikarpur and for having murdered Muhammad Waked at about same time in the Bazar of the same village.
' Vide judgment dated 6-12-1990 he was convicted under section 302, P.P.C. on both counts and sentenced to death plus to pay a fine of Rs,15,000 in default whereof to underto R.I. for one year.
Fine on realisation was directed to be paid as compensation to the heirs of the deceased.
(Trial Judge has not specifically mentioned that the convict is sentenced on two counts).
2. The convict has filed appeal. The learned trial Judge has made reference for confirmation of the death sentence. Both the matters ate being disposed of together.
3. F.I.R. Exh. PG/1 was registered at police station by Muhammad Sadiq, M.H.C. (P.W.6) on 24-8-1984 at 7-15 p.m. on receipt of statement (Exh.PG) of Khan Muhammad (P.W.3) recorded by Riaz-ur- Rehman Kallu, Inspector/SHO (P.W.9) on the same day at 7 p.m. at Chowk Adda Larian, Rajanpur.
' According to the F.I.R. the complainant had gone to the house of Suleman, his father-in-law, when he came out of the house at 5-30 p.m. he saw Muhammad Yaqub firing twice with rifle at his sister, Mst. Surraya in the room of his father's house, the door of which was open. Simultaneously Abdur Shakoor and Muhammad Yusuf P.Ws. came there. They also witnessed the occurrence. Due to fear the complainant hid himself behind the door of the house of his father-in-law. Muhammad Yaqub came out of his house raising Lalkara and started towards Bazar saying that he will not spare him (complainant) and Muhammad Waked. Abdur Shakoor and Muhammad Yusuf ran after him to catch him. He (accused) on seeing Muhammad Wakeel in the Bazar fired twice at him. Shakoor and Yusuf overpowered him and snatched the rifle from him which was licensed weapon of his father Saeed Ahmad Shah. The complainant leaving Naik Muhammad near the dead body of Mst.
Surraya took Muhammad Wakeel to the District Headquarters Hospital. Leaving Muhammad Yusuf there to attend Muhammad Wakeel, he set out for lodging report. Riaz-ur-Rehman Kallu, Inspector/S.H.O. met him at Chowk Adda Larian. He recorded his statement Exh.PG.
' About motive for the occurrence the complainant stated therein, that he had started business of oil and fertilizer and so had Faiz Muhammad Qureshi. He stated that unluckily they were doing business at the nearby places. According to him Muhammad Wakeel used to help him in the business and his business was flourishing due to which Faiz Muhammad became jealous. He stated that the proof of his apprehension was obvious, because he (Faiz Muhammad) had got a false case registered against him. He alleged that Faiz Muhammad had abetted his relative Muhammad Yaqub (appellant) to murder Muhammad Wakeel.
4. Riaz-ur-Rehman Kallu, Inspector/SHO (P.W.9) after despatching statement Exh.PG to the police station for registration of the case went to the place where Mst. Surraya had been murdered. After despatching the dead body of Mst. Surraya to the mortuary for post-mortem, he took into possession blood-stained earth therefrom vide memo. Exh.PK and also collected a pair of empty bullets.
' Thereafter he visited the spot where Muhammad Wakeel had been injured. Blood-stained earth was taken into possession by him vide memo. Exh.PJ. Pair of empties (bullets) lying there were picked up by him and taken into possession.
' He arrested Muhammad Yaqub and took into possession rifle P.10 vide memo. Exh.P/I on being produced before him by Mubarik P.W.
' On being informed about the expiry of Muhammad Wakeel, he went to D.H.Q. Hospital, Rajanpur, and despatched the dead body for post-mortem after preparing necessary reports.
' Challan was submitted by him to Court after completion of necessary investigation.
5. Statements of ten P.Ws. were recorded at the trial.
' Dr. Saeed Ahmad Usmani, who had performed autopsy on the dead body of Muhammad Wakeel on 25-7-1984, appeared as P.W.1. He noted the following injuries on the body of the deceased:---
(1) A lacerated wound almost circular 1/4" in diameter with inverted margins and going deep 1/2" behind the hair line on the right side of scalp. Brain matter was coming out of the wound (wound of entry).
(2) A lacerated wound almost circular 1" in diameter with everted margins going deep apart from the injury No,1. Brain matter was coming out of the wound (wound of exit).
(3) A lacerated wound on the top of left shoulder jont 1-1/8" with inverted margins and going deep (wound of entry).
(4) A lacerated wound on the posterior aspect of left axilla 1/2" in diameter almost circular with everted margins (wound of exit).
' On dissection skull bone was found fractured under injuries Nos.1 and 2.
' Death was opined to have occurred due to shock and haemorrhage resulting from injuries Nos.1 and 2 which were opined to have caused damage to vital organs.
' Probable time between injuries and death was opined to be 5 to 6 hours while duration between death and post-mortem was opined to be 16 to 17 hours.
' The same doctor had performed autospy on the dead body of Mst. Surraya on the same day at 3 p.m. and noted a lacerated wound on the left side of the scalp almost circular 1/2'" in diameter with inverted margins going deep 2" above the left ear.
' Skull bone under the injury was found fractured.
' Bullet was recovered from just behind the right ear. He had also taken two vaginal swabs.
' Death was opined to have occurred due to above-noted fire-arm injury.
' Duration between death and post-mortem was opined to be between 23 to 26 hours.
' During cross-examination he expressed inability to state whether both the dead bodies had been brought together at one and the same time. However, he admitted that both the dead bodies were escorted by Jan Muhammad P.W.10.
6. Ocular account was deposed to by Khan Muhammad (P.W.3), Muhammad Yusuf (P.W.4) and Abdur Shakoor (P.W.5).
' Khan Muhammad (P.W.3) by and large repeated the facts given by him in the F.I.R. During cross- examination he admitted that his house was at a distance of about three acres from the place of occurrence. He stated that he had been visiting the house of Saeed Ahmad Shah prior to the occurrence. He denied that Saeed Ahmad Shah had helped him when Faiz Muhammad had got a case registered against him. He admitted that there were residential houses around the house of Saeed Ahmad Shah. He explained that he had gone to the house of his father-in-law to inquire about his health. He admitted that when the police had declared Faiz Muhammad innocent, he had submitted an application for transfer of the investigation. While answering Court questions he stated as follows:-- "Accused had murdered Mst. Surraya firstly because he wanted to show that she was Kali with Wakeel deceased and thereafter he fired at Wakeel...... "
7. Muhammad Yusuf (P.W.4) while corroborating the statement made by Khan Muhammad (P.W.3) about the actual occurrence also claimed to have identified the dead bodies of both the deceased at the time of post-examination.
' During cross-examination he stated that he alongwith Shakoor (P.W.) had reached the spot just by chance otherwise they had no purpose to be there. He stated that they did not catch the accused after he came out from his house. While answering the Court questions, he stated as follows:-- ' ....................... We came to know that he had killed his sister Mst. Surraya when he had already fired at Wakeel and we had caught him. Mubarak P.W. may have produced the accused at the police station."
8. Abdul Shakoor (P.W.5) while corroborating the statement made by Khan Muhammad (P.W.3) about the actual occurrence also claimed to have witnessed the blood-stained earth from both the spots, empties from both the spots and taking into possession of rifle P.10 snatched from the appellant on being produced by Mubarik P.W.
' During cross-examination he stated that he and Yusuf had met each other at a distance of few paces, away from the house of Saeed Ahmad Shah. He stated that the accused was caught first by other persons and they had reached thereafter. While answering a Court question, he stated that actually he did not understand why the accused had killed his sister.
9. Riazur Rehman Kallu, Inspector/S.H.O. who had recorded statement Exh.PG of the complainant, despatched the dead body of Mst. Surraya for post-mortem after visiting the spot, collected blood- stained earth and empties from there, had visited the spot where Muhammad Wakil was injured and collected blood-stained earth and empties from there, had arrested the appellant on being produced before him by Mubarik, and taken into possession rifle snatched from the appellant and submitted the challan to Court after completion of necessary investigation, appeared as P.W.9 and deposed those facts.
' During cross-examination he stated that both Mst. Surraya and Muhammad Wakil were young. He stated that he had found Faiz Muhammad innocent during the investigation and the D.S.P. who had supervised the investigation had agreed with him. He denied the suggestion that both the deceased were found in a compromising position and were done to death due to that.
' Statements of the remaining P.Ws. are more or less of a formal nature.
10. Positive reports Exh.s.PP, PQ and PR from the offices of the Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence.
11. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He did not deny that Mst. Suraiyya was his sister. He stated as follows, in answer to the question, "Do you have to add anything":--- "I am innocent. The deceased Wakil and my sister Mst. Suraiyya deceased were lying in a compromising position in my house. Under sudden and grave provocation, I carried the rifle Exh.P.10 and shot it at both Wakil deceased and Mst. Suraiyya deceased. Believing both of them to have died, I went to the house of Mubarik Khan Lumberdar alongwith my rifle. Naik Muhammad was also there. I narrated the event. Rashid, Yusuf and Mubarik all the three produced me and my rifle at the Police Station of- Rajanpur, and Naik.Muhammad went to the place of occurrence."
' He declined to make statement on oath under section 340(2), Cr.P.C. and examined in defence D.S.P. Rashid Ahmad Murtaza.
' Rashid Murtaza, D.S.P. stated that he had come to the conclusion during investigation that motive for the occurrence was illicit relations between Wakeel deceased and Mst. Surraya deceased. He added that he had come to the conclusion that the accused/appellant committed the murders on account of 'Ghairae. He added that there was no other motive for the murder of any of the deceased.
' During cross-examination he stated that it was not the case of grave and sudden provocation. He admitted that both the deceased were murdered at two different places.
12. We have gone through the evidence with the assistance of learned counsel for the appellant and considered the contentions raised by learned counsel for the parties.
13. Khan Muhammad P.W.3, neither at the time of lodging F.I.R. nor while making statement at the trial, gave out any motive for the murder of Mst. Surraya. The statement made by him in answer to Court question that the appellant had committed the murder of his sister Mst. Surraya to show that she was 'Kali' with Wakeel deceased, was not based on any evidence, or reason. He stated so by way of surmise. As such no importance can be given to the view expressed by him.
14. The motive narrated by him for the murder of Muhammad Wakeel deceased does not inspire confidence. It was his own case that Wakeel deceased used to help him in the business. He never stated that Wakeel was partner in his business. If Faiz Muhammad had developed jealousy because of business rivalry, then he should have harmed the complainant instead of engaging the appellant to murder Muhammad Wakeel. The insinuation made by him in the F.I.R. against Faiz Muhammad was not found correct. He was not challaned even. The complainant did not file any complaint against him direct to the Court.
In the circumstances, we feel no hesitation in holding that the prosecution failed to prove any motive for murder of both the deceased.
15. The appellant while denying the prosecution case had put up his own version of the occurrence, and had examined in defence a D.S.P. also. Since, it is a case of two versions, the same have to be examined in juxtaposition so as to reach a conclusion whether the version put forth by the eye- witnesses was true or the version put forth by the appellant was more probable and nearer the truth?
16. As noted above, the eye-witnesses failed to establish motive for the (occurrence) murder of any of the two deceased. Actually, the eye-witnesses did not state anything during the investigation or while making statements at the trial, about motive for the commission of murder of Mst. Surraya.
They only came forth with an explanation on being asked by the Court, that the appellant had murdered his sister in order to take the plea of Kala-Kali. However, they failed to bring anything cogent on record in that regard.
' On the other hand the appellant examined D.S.P. Rashid Murtaza in support of the plea of grave and sudden provocation advanced by him. The D.S.P. categorically stated that the only motive for the commission of murder of Surraya and Wakeel was the illicit relations between them. He gave out that the appellant had committed both the murders due to `Ghairae.
' The plea advanced by the appellant and the statement made by the D.S.P. find support from the circumstances on record.
16. It is prosecution's own case that Mst. Surraya was murdered in the house of her father where the appellant was also living, while Muhammad Wakil was murdered in the Bazar. Mst. Surraya was murdered first and Muhammad Wakeel was fired at later. The stance of the P.Ws. that the appellant had murdered his sister in order to take plea of Kala-Kali, is just a wishful explanation. As noted above, Mst. Surraya was murdered first and Muhammad Wakeel was murdered later in the Bazar. According to ocular account Wakeel was nowhere near the place when Mst. Surraya was done to death. The appellant could not have known nor could have been sure that he will be able to get hold of Wakeel and succeed in committing his murder. It is not the case of the prosecution that he had secured his presence and then murdered him after having taken the life of his sister.
Had the prosecution case been that Muhammad Wakeel was murdered first and Mst. Surraya was murdered later, of course, some weight could have been attached, that he might have committed the murder of his sister in order to take the plea of grave and sudden provocation, but Herein the facts disclosed are that Mst. Surraya was murdered first.
' In the circumstances, it cannot be assumed by any stretch of imagination that the appellant would have first murdered his sister so as to take the plea of Kala-Kali, after he succeeds in committing the murder of Muhammad Wakeel.
' The manner, in which, according to the eye-witnesses even, the appellant had murdered his sister, shows that he was under the impulse of some circumstance, beyond the control of his sentiments and wisdom. Had he committed the murder in a planned manner, he would not have fired at his sister in his own house, keeping the door towards the street wide open, so as to afford opportunity to the passersby also to witness him committing the murder.
17. Apart from the circumstances, enumerated above, the claim of the eye-witnesses that they had witnessed the commission of both the murders, even otherwise does not inspire confidence. P.Ws.3 and 4 were residing at a distance of 3 acres from the place of occurrence. P.W.4 categorically stated that he was passing beside the house of the appellant just by chance. He also failed to give any explanation for being there. The explanation given by the complainant of being at the spot, also does not inspire confidence. It is strange that no residents from the neighbouring houses of the appellant, was either named as a witnesses or stated to have reached the spot, immediately after the occurrence. In fact P.Ws. 4 and 5 did not claim that they had seen the appellant firing at Mst. Surraya. The statement of the complainant that the eye-witnesses had caught the appellant and snatched the rifle from him, was not corroborated by P.W. 4 and P.W.5, both of whom stated that the appellant actually had been caught by other persons and they had reached there after he had been taken into custody, and the rifle had been snatched from him. As such, the statement of P.Ws.4 and 5 does also does not inspire confidence.
18. Another aspect worth noticing, in this case, is that no inmate of the house of Mst. Surraya was named to have witnessed the commission of her murder. The Investigating Officer did not claim that anyone residing in that house had appeared before him and stated that she was done to death by Muhammad Yaqub appellant, so much so, that none from her family including father, brother or other close relative, came forward, even to identify her dead body at the time of post- mortem. Her dead body was identified by Muhammad Yusuf P.W.4 real brother of the complainant.
These circumstances lend support to the plea of the appellant that Mst. Surraya on account of her conduct had lost the sympathies of her family members.
' Having carefully examined the two versions in juxtaposition, we are convinced that the prosecution version of the occurrence was neither true nor correct, while the defence version appears to be more probable. The conviction and sentences of the appellant under section 302, P.P.C. therefore, cannot be maintained. The same are set aside.
19. We are, however, not inclined to accept the stance of the appellant that he had seen both the deceased in a compromising position. We feel that if he had found the two in that state, Muhammad Waked would not have been able to run away, nor would have been found properly dressed when he was fired at. In our view, all that the circumstances lead to, is, that the appellant had seen Muhammad Wakeel with his sister in his house, either sitting together or caressing with each other, and feeling hurt and dishonoured, he picked up his father's rifle and fired at Mst.
Surraya (deceased) while Muhammad Waked, in the meantime, succeeded in running away. He chased him, after finishing his sister and on spotting him in the Bazar, fired at him also. Such circumstances, though lend support to the argument of learned counsel that the appellant acted under sudden provocation, but do not make out a case of grave and sudden provocation.
For the aforesaid reasons, the appellant is convicted under section 304, Part 1, P.P.C. on two counts and sentenced to undergo R.I. for 10 (ten) years, plus to pay a fine of Rs, one thousand, in default whereof to undergo R. I. for three months, on each count. Sentences of imprisonment on both the counts shall run concurrently. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended.