1. ' WALI MUHAMMAD KHAN, J.---Ghulam Hussain alias Hussain Bakhsh, Khadim Hussain, Ghulam Qasim, Rab Nawaz, and Wazir, appellants herein, through leave of the Court, call in question the judgment dated 30-7-1991 passed by the Lahore High Court, whereby their appeal against the order, dated 15-12-1988 delivered by the learned Additional Sessions Judge, Bhakkar convicting them for life imprisonment and fine of Rs,5,000 each on two counts under section 302/149, P.P.C. For causing the death of Muhammad Ashraf deceased and Mst. Zohran Mai deceased, and also under section 148, P.P.C. To one year R.I. Each and under section 449, P.P.C. To 5 years' R.I. Plus a fine of Rs,1,000 each, was dismissed. The leave granting order is as under:--- "Leave is granted, inter alia, to consider the question whether the plea of grave and sudden provocation taken by one of the petitioners on the trial received due attention in the High Court."
2. ' The facts of the case, briefly stated, are that Mohammad Iqbal complainant/P.W.7 alongwith his brother Muhammad Ashraf deceased were living in village Suhlan Wala to look after their lands, while their other brothers lived at Layyah where their father was a Patwari. On the date of occurrence at about 2-30 p.m. The complainant alongwith Allah Ditta P.W.8 was sitting under the Pipel tree when they heard hue and cry from the house of Allah Ditta and rushed there, where they saw the appellants armed with Sotas present in the courtyard of the house of Allah Ditta.
3. Muhammad Ashraf deceased had chained the door of Kotha from inside and the appellants forcibly opened the door and brought out Muhammad Ashraf deceased. Qasim and Rab Nawaz appellants caught hold of him while Ghulam Hussain alias Hussain Bakhsh delivered Sota blow on the right side of his head. Khadim Hussain and Wazir appellants inflicted sota blows on the head and neck of the deceased as a result whereof he became unconscious and then all the appellants inflicted further blows to the deceased on various parts of his body resulting in his death.
4. Thereafter, they lifted the dead body of Muhammad Ashraf and proceeded towards the south to their own house where they threw the dead body under a Jal tree. The complainant and Allah Ditta P.W.3 were threatened by the appellants with dire consequences if they dared go near them. After having done away with Muhammad Ashraf deceased, Ghulam Hussain appellant forcibly brought out his sister Mst. Zohra Mai from his house and all the appellants gave her beating with their Sotas and killed her. Her dead body was placed close to that of Muhammad Ashraf deceased. The motive disclosed is that the cattle of the appellants used to destroy the crop of the complainant.Which created ill-will between the parties. The appellants also suspected illicit relations of Mst. Zohra Mai with the deceased.
5. ' On the registration of the case vide F.I.R. Exh.PM at the instance of Muhammad Iqbal P.W.7, Said Amir Khan P.W.9, then S.H.O. Police Station Saddar,-Bhakhar, went to the spot where he found the dead bodies of the two deceased, who prepared the injury sheet and inquest report thereof and sent them for post-mortem examination. He collected blood-stained earth from the spot where the dead bodies were lying, sealed them into parcel and took them into possession vide recovery memo. Exh.PF. He inspected the house of Allah Ditta P.W.8 but could not notice any blood-stained earth as, according to him, the same had been washed away by the rainfall. He arrested all the accused on 22-8-1986 and obtained their police custody. On 26-8-1986 Ghulam Hussain appellant led to the recovery of blood-stained Sota Exh.P.5 from within his residential Kotha which was taken into possession and sealed vide recovery memo. Exh.PG. It appears that Ghulam Hussain appellant admitted before the police that he alone had killed the two deceased under grave and sudden provocation, after seeing them in objectionable circumstances and that the other appellants had not participated in the crime. The investigation was accordingly entrusted to the Crime Branch which, after elaborate inquiry came to the conclusion that Ghulam Hussain appellant alone was responsible for the murder of the two deceased and the other appellants being innocent, were got discharged under section 169, Cr.P.C. Complete challan against Ghulam Hussain appellant was submitted before the Ilaqa Magistrate, who, in his turn, sent up the case to the Court of Session for trial. The complainant being aggrieved from the order of discharge, filed a private complaint Exh.PH/1 which was taken cognizance of and the challan submitted by the police against Ghulam Hussain as well as complaint filed by the complainant were proceeded with simultaneously and joint trial of all the appellants was ordered.
6. ' Necessary charge-sheet was framed against all the appellants to which they pleaded not guilty and claimed trial. The learned Sessions Judge examined Muhammad Zareef Head Constable, Bahadur Khan, F.C., Muhammad Rafi, F.C., Allah Ditta Patwari, Dr. Inamul Haq Khan, Muhammad Latif, Muhammad Iqbal, Allah Ditta son of Haji Said Amir Khan and Chaudhry All Muhammad as prosecution witnesses, Muhammad Sharif, Abdul Rashid, Ghulam Dastgir, Dost Muhammad and.
7. Muhammad Hanif as Court witnesses and recorded the statements of the accused under section 342, Cr.P.C., and on the appraisal thereof found the accused/appellants guilty for the murder of the two deceased and sentenced them as detailed in the introductory part of this judgment, vide his judgment dated 15-12-1988. Their appeal before the High Court also failed and hence the instant appeal.
8. ' We have heard Mr. Muhammad Hanif Niazi, Advocate for the appellants; Raja Abdul Ghafoor, Advocate for the State; and have perused the record of the case with their assistance.
9. ' P.W.8 is closely related to him, and therefore, they being interested witnesses their deposition requires minute scrutiny; that the prosecution theory is highly improbable and not corroborated by the circumstances of the case; that the occurrence allegedly took place in the house of Allah Ditta but nobody from the inmates of the house was produced to support the prosecution version; that no blood was found in the house of Allah Ditta nor any trail of blood was noticed by the I.O. From the house of Allah Ditta to the place where to the dead body of Muhammad Ashraf deceased was allegedly dragged; that no blood was found at the spot where Mst. Zohran Mai was allegedly done to death; that no disinterested witness volunteered to appear as a witness though the occurrence took place in the village; that in spite of the presence of the appellants (except Ghulam Hussain) in the village and accompanying the investigating officer they were not arrested from which it can be safely gathered that the police was convinced about their innocence; that the disinterested investigating agency of the crime branch found them innocent and secured order of their discharge from the Ilaqa Magistrate; and finally, that there being two versions before the Court the one favouring the defence had to be preferred and only Ghulam Hussain appellant could be convicted under section 304, Part I, P.P.C. And the rest exonerated of the charges. The learned State Counsel, on the other hand, controverted the submissions of the learned counsel for the appellants and argued that the defence version had not been substantiated by any independent evidence of unimpeachable character and that the version given by the complainant and Allah Ditta was rightly accepted by the trial Court as well as the High Court.
10. ' We have given our anxious consideration to the learned arguments advanced on either side.
11. Admittedly, Muhammad Ashraf deceased is the brother of Muhammad Iqbal complainant and Mst.
12. Zohran Mai deceased is the sister of Ghulam Hussain appellant. The prosecution story, as disclosed in the FIR., is that Muhammad Ashraf deceased had locked himself inside the Kotha of Allah Ditta and on breaking open the door of the Kotha all the appellants brought him out, delivered him blows with Sotas resulting in his instant death and then dragged him towards the spot. Thereafter they are alleged to have killed Mst. Zohran Mai after consulting their landlord in order to create a theory of grave and sudden provocation. The defence version, on the other hand, is that Ghulam Hussain appellant found the two deceased in objectionable manner and killed both of them by delivering Sota blows to them and his act being covered under Exception 1 to section 300, P.P.C.
13. Was liable to culpable homicide not amounting to murder. No disinterested witness was produced by either side in support of their respective versions and therefore surrounding circumstances of the case have to be looked into for arriving at a reasonable conclusion.
14. ' Neither any blood was found by the I.O. In the house of Allah Ditta where Muhammad Ashraf deceased was allegedly beaten to death nor any trail of blood was found in between the house of Allah Ditta and the spot where the dead body was found lying by the I.O. On his visit to the spot, though he recovered blood at the latter place and the reasoning advanced by him that the blood had been washed away by rain is belied by the presence of the blood on the spot where the dead body was available. No evidence of breaking open the door was detected by the I.O. Either.
15. Admittedly, there were female inmates of the house but they were not produced as witnesses. The presence of Muhammad Ashraf deceased in the house of Allah Ditta has not been explained. The version of the eye-witnesses, namely, Muhammad Iqbal and Allah Ditta, that they were all along watching the progress of the incident from the stage of killing of Muhammad Ashraf deceased till the consultation of the appellants with their landlord and as a result thereof killing of Mst. Zohran Mai and bringing her dead body to the spot and placing it alongside the dead body of Muhammad Ashraf deceased is highly improbable. The defence version, on the other hand, appears to be plausible, inasmuch as, according to the opinion of the doctor the hymen of the Mst. Zohrann Mai was not intact and she was habitual of sexual intercourse, though according to the available information she was not married. The swabs taken were found to be stained with semen according to the chemical examiner's report. Needless to emphasise, that when there are two conflicting versions for consideration before the Court, the one agitated by the prosecution and the other by the defence and both are probable, the one favouring the defence is to be preferred, more so when it gets corroboration from the cricumstantial evidence available in the case. If the motive to kill Muhammad Ashraf was the earlier dispute of straying and impounding of the cattle and they had been able to kill him in the house of Allah Ditta, we fail to understand why they should drag the dead body for some distance and simply to create a ground for provocation kill their own sister without any rhyme or reason. We are, therefore, convinced that the prosecution witnesses have not divulged the whole truth. The plea of the defence that Ghulam Hussain alone killed the two deceased is equally not believable, inasmuch as, the doctor found a number of lacerated and contused wounds on the person of the two deceased which could not possibly be caused singlehandedly, keeping in view the dimension of the injuries and the strangulation of neck of Muhammad Ashraf deceased.
16. Analysing the record of the case, we are convinced that the appellants are responsible for doing away with the lives of the two deceased but under grave and sudden provocation for which they are liable under section 304, Part I, P.P.C. We, accordingly, alter the conviction of the appellants from 302, P.P.C. To 304, Part I, P.P.C. And reduce their sentences to ten years' R.I. Each. The other sentences imposed upon them shall remain intact. The substantial sentences shall run concurrently.