SH. KHIZAR HAYAT, J.-Haq Nawaz and his sister Mst. Zohran (appellants herein) were tried along with their brother Muhammad Amir and mother Mst. Soban by Additional Sessions Judge, Okara, for committing double murder of Muhammad Hussain and Falak Sher, brothers inter se, in furtherance of their common intention. Learned trial court vide judgment, dated 27-4-1988, acquitted Muhammad Amir and Mst. Soban and convicted Haq Nawaz and Mst. Zohran under section 304 Part-II, PPC, for committing culpable homicide not amounting to murder and sentenced them to 10 years' R.I., and a i.e of Rs. 5,000/- each or in default of payment of i.e to undergo further R.L, for 6 months. Benefit of section 382-B, Cr. P.C., was also extended to them. Both the convicts have jointly filed the instant appeal challenging their conviction and sentence whereas sulman complainant, father of both the deceased, has filed revision (Cr. R. No. 607-88) challenging the acquittal of Muhammad Amir and Mst. Soban from charges of murder and also prayed for enhancement of sentence awarded to the appellants by the trial court. Both the matters are being disposed of by this single judgment as they arise from the same impugned judgment.
2. According to the prosecution, at the fateful time (11.30 a.m., on 31-7- 1985) sulman complainant (PW 3) was constructing a wall outside his house along with his sons, namely, Falak Sher and Muhammad Hussain (deceased) when Mst. Zohran (appellant) armed with Sota, Haq Nawaz (appellant) armed with a Dang, Mst. Soban (accused) armed with Sota and Muhammad Amir (accused) armed with Dang came on the spot and forcibly took Falak Sher and Muhammad Hussain (deceased) into their house by dragging and then having chained the outer door from within started be labouring them with their respective weapons. The complainant raised alarm which attracted Chiragh (PW 6) and Noor Muhammad (PW 7) to the spot. These three witnesses saw from over the outer wall Muhammad Amir and Mst. Zohran causing injuries with Dang and Sota to Muhammad Hussain while Haq Nawaz and Mst. Soban were causing injuries with Dang and Sota to Falak Sher (deceased). The PWs requested them not to kill the deceased but they threatened to kill them also. Sulman, complainant, leaving Noor Muhammad and Chiragh PWs at the spot repaired to the police-station for report. In the way he met AS1 Muhammad Siddiq (PW 8) and lodged with him report (Ex-PD) at 2.05 p.m. Motive for the offence was stated to be that Mst.
Muniran daughter of Siraj was betrothed to Jahangir, brother of the accused- appellants. Before her marriage she got pregnant. In a bid to get the pregnancy aborted Mst. Muniran expired. The accused party suspected that she died due to administering 'Taweez' and medicine by the deceased, therefore, they murdered them on the day of occurrence.
3. After recording statement of sulman complainant (Ex-PD), it was sent to police-station Dipalpur for registering formal FIR whereupon Inspector/SHO Saleem Ahmad drew up formal FIR (Ex-PD/1) at 2.35 p.m. AS1 Muhammad Siddiq (PW 8) reaching the spot prepared the Injury Statement and Inquest Report (Exs-PO and PP) of Muhammad Hussain (deceased) and Injury Statement and Inquest Report (Exs-PQ and PR) of Falak Sher (deceased) despatched both dead bodies to the Mortuary under police escort for postmortem examination. He arrested all the accused the same day. Muhammad Amir produced blood-standing Dang (P.5), Mst. Soban produced blood-stained Sota (P.6), Haq Nawaz blood-stained Sota (P.7) and Mst. Zohran produced bloodstained Sota (P.8) before the Investigating Officer which were seized under separate Memoes (Exs-PK, PL, PM and PN) respectively, attested by Chiragh (PW 6), Noor (PW 7) and the Investigating Officer (PW 8). He also secured blood-stained earth from underneath dead bodies of the two deceased vide Memoes Exs- PI and PH respectively.
4. Dr. Nawab Din (PW 2) conducted post-mortem examination on dead bodies of Falak Sher and Muhammad Nawaz (deceased) on 31-7-1985 and found following injuries thereon:- Injuries of Falak Sher, deceased.
(1) Lacerated wound 6 cm x 1 cm x bone deep on right side of head, 10 cm above right ear.
(2) Lacerated wound 5 cm x 1 cm x bone deep on back and left side of head, 10 cm back to the left ear.
(3) Lacerated wound 3 cm x cm x bone deep on left side of head, 11 cm above left ear.
(4) Contusion mark 12 cm x 2 cm on front and middle of right upper arm.
Both parietal and occipital bones under above-mentioned head injuries were fractured.
Intracranial haemorrhage was present on both sides of head. In the opinion of doctor, death occurred due to shock and haemorrhage caused by injuries on head. All injuries were ante- mortem caused with blunt weapon. The head injuries were sufficient individually to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination within 6 to 7 hours.
Injuries of Muhammad Hussain, deceased.
(1) Contusion mark 24 cm x 16 cm with swelling around on outer side of right thigh. Bone underneath was fractured.
(2) Contusion mark 10 cm x 3 cm on front of right knee, bone underneath was fractured and joint was dislocated.
(3) Loceraled wound 6 cm x 3 cm, bone fractured on the back and upper part of right leg. Popliteal vessels were punctured under this injury.
(4) Lacerated wound 3 cm x 2 cm x bone fractured on front and middle of right leg.
In his opinion, death had occurred due to shock and haemorrhage produced by the above- mentioned injuries which were sufficient collectively to cause death in the ordinary course of nature. Time between injuries and death was within 1 hours and between death and post-mortem examination within 6 hours. All injuries were ante-mortem and caused with blunt weapon.
5. It may be mentioned that Haq Nawaz (appellant) at the time of arrest was found injured so he was also got examined by the same doctor who found following injuries on his person vide M.L.R.
No. 192/85, dated 31-7-85.
(1) Lacerated wound 6 cm x cm x scalp deep on right side of head, 5 cm above right eyebrow in longitudinal direction.
(2) Lacerated wound 3 cm x cm x scalp deep on left side of head, 7 cm above left eyebrow.
(3) Lacerated wound 4 cm x 1 cm x scalp deep, 2 cm above injury No. 2.
(4) Abrasion cm x cm with swelling around on left side of forehead.
(5) Contusion mark 3 cm x 2 cm on back and upper part of right chest.
(6) Abrasion 10 cm x cm on front and lower part of right chest and upper part of right abdomen.
All injuries were caused with blunt weapon within duration of 7 hours. Injuries No. 1, 2 and 3 kept under observation for X-Ray and rest were declared simple.
6. The accused pleaded not guilty to the charge and the prosecution examined 8 witnesses in support thereof. The eye-witness account was furnished by complainant sulman (PW 3), Chiragh (PW 6) and Noor (PW 7). They also deposed about recoveries of weapons of offence effected from the accused. Dr. Nawab Din (PW 2) deposed that both the deceased died of violence and proved injuries found on their persons. He also proved the injuries suffered by Haq Nawaz (appellant). AS1 Muhammad Siddiq (PW 8) stated about investigations carried out by him in this case. In their statements under section 342 Cr. P.C., Mst. Soban and Amir (accused) denied their participation, whereas Haq Nawaz and Mst. Zohran (appellants) pleaded grave and sudden provocation as well as self- defence. Haq Nawaz (appellant) in reply to question, "Why this case against you and why the PWs deposed against you", stated,- "I have been falsely involved in this case. The PWs are interested witnesses. Except Chiragh they are related inter-se. Chiragh PW is inimical towards us. The true facts had been supressed and concealed by the prosecution and concocted a false story against us. The investigation is all fake.
In fact my sister Mst. Zohran was present all alone in our house. My mother and my brother Amir had gone to Depalpur City for shopping on the day of occurrence. I had gone to Barbar of the village for shave. I heard alarm raised by my sister Mst. Zohran from our house. I rushed towards my house and saw deceased Muhammad Hussain attempting to commit rape with her. In order to save the honour of my sister, I picked up a soti from my house and attacked on the person of Muhammad Hussain deceased. When Muhammad Hussain was being beaten by me, he raised alarm, upon which Falak Sher deceased armed with dang reached in our house and started causing injuries on my person. During this, my sota fell down. My sister picked up that sota and inflicted injuries on the person of Falak Sher deceased to save my life. Neither the wall was being constructed by the deceased nor they were dragged by us. All the story is false and concocted."
Mst. Zohran (appellant) adopted the above statement. No witness was however, examined in defence.
7. Learned trial court on consideration of the material on record for variety of reasons held that eye-witnesses, namely, sulman father of the deceased, Noor Muhammad his son-in-law and Chiragh resident of Chak No. 47/D had not seen the occurrence and consequently he proceeded to hold on the basis of statement of appellants themselves that they had exceeded their right of self- defence and held them guilty of committing offence of culpable homicide not amounting to murder and convicted and sentenced them under section 304 Part II PPC as indicated above.
Hence this appeal.
8. I have heard learned counsel for the appellants, the State and also for the complainant (who filed Cr. R. No. 607-88) and also perused the record carefully.
9. It is in evidence that sulman complainant (PW 3) is father of both the deceased. Haq Nawaz and Mst. Zohran (appellants) who are brother and sister inter se, are children of his real brother Burhan.
It is also in evidence that Noor PW is son-in-law of complainant while Chiragh PW is resident of Chak No. 47/D which is at a distance of 3/4 miles from the place of occurrence. The place of occurrence is a village comprising about a hundred houses. The complainant, according to the prosecution, at the time of occurrence was constructing wall and that Muhammad Hussain (deceased) was supplying him bricks while Falak Sher (deceased) was supplying him mud, but it is strange phenomenon that both the deceased who were allegedly dragged away by the appellants with the help of two acquitted accused had neither suffered scratches on their bodies due to dragging nor their clothes were smeared with mud. Again it seems to be highly improbable that two women and two men were able to drag away two young men with good physique to their house at a distance of about 15-20 Karams while each one of them was carrying stick in one of their hands. Further it is highly improbable that aforesaid three eye-witnesses watched the occurrence silently and did not make any attempt to rescue the deceased by throwing brick bats on them which were available at had. It is most queer that Chiragh one of the eye-witnesses had not explained the injuries of Haq Nawaz (appellant) which were six in number and seem to have been caused by enemy had. In the FIR and also at trial sulman attempted to explain the injuries of Haq Nawaz by saying that he suffered injuries at the hands of his own companions/accused but it is a simply absurd. The place where both the deceased were done to death by giving Sota blows is courtyard of the accused/appellants. The police found dead bodies of deceased lying there. The story that deceased were dragged to the house of accused is belied by the fact that deceased bore on mark of dragging on their persons. Chiragh PW stated that when he reached the spot the deceased had already been taken inside the house of the accused. He is not resident of the locality but comes from a place 3/4 miles away. Failure on his part to explain injuries of Haq Nawaz shows that he had not witnessed the occurrence at all or at least he had not seen what happened immediately before the appellants had started giving blows to the deceased. Learned trial court, therefore, rightly kept the evidence of the eye-witnesses out of consideration. Statements of accused only, thus, remained in field which ought to be accepted in toto. Their explanation that Haq Nawaz (appellant) attacked and killed Muhammad Hussain (deceased) while he was attempting to forcibly commit rape upon his sister Mst. Zohran is covered under clause 'thirdly' of section 100 PPC and likewise Mst. Zohran (appellant) was well within her right to kill Falak Sher (deceased) in order to save her brother's life from him. (See clause 'secondly' of section 100 PPC). I am, therefore, of the considered view that both the appellants in the circumstances committed no offence. Consequently, I allow this appeal, set aside the conviction and sentence of both the appellants and acquit them. They are on bail. They are discharged of their bail-bonds. Revision petition challenging acquittal of Amir and Mst. Soban and seeking enhancement of sentence of Haq Nawaz and Mst. Zohran (appellants) fails automatically, hence dismissed.