' Criminal Appeal No, 12 of 1987/BWP, Criminal Revision No, 51 of 1987/BWP and Criminal Revision No, 67 of 1987/BWP have arisen out of the same impugned judgment and similar points of fact and law are involved in all the cases, therefore, they shall be disposed of by this judgment.
2. Mahmood Ahmad, Rafique Ahmad, Abdul Latif and Bashir Ahmad were tried by the learned Additional Sessions Judge, Bahawalpur for the murder of Mahboob Alam and Mst. Siraj Bibi who vide his impugned judgment dated 23-12-1986 acquitted co-accused Abdul Latif and Bashir Ahmad and had convicted and sentenced the appellants Mahmood Ahmad and Rafique Ahmad under section 304-I, P.P.C. To under go 5 years' R.I. Each. They were also extended the concession of section 382-B, Cr.P.C.
3. Briefly the prosecution case is that on 7-7-1986 P.W.3 Din Muhammad submitted a written complaint Exh.PB to the S.H.O., Police Station Channi Goath, District Bahawalpur, and on the basis of the same P.W.14 Muhammad Siddique A.S.I. Drafted the formal F.I.R. Exh.PR. The facts of the case as unfolded in the F.I.R. Exh. PR are that P.W.3 Din Muhammad stated that he was resident of Mauza Tahirwali and was also Chairman of Union Council, Tahirwali. His nephew Mahboob Alam deceased was married about 1-1/2 years earlier and he was on friendly terms with Mehmood Ahmad appellant, who used to visit the deceased usually. A day before the occurrence at sunset time Mehmood Ahmad appellant reached at the Dera of the complainant at Tahirwali where the deceased Mahboob Alain was present and within the sight of P.W.3 Din Muhammad and P.W.4 Manzoor Ahmad, appellant Mehmood Ahmad took along the deceased Mehboob Alam to witness jugglers show. On the day of occurrence at about 4-30 a.m. P.W.5 Shabbir Ahmad and P.W.6 Allah Bachaya reached the house of P.W.3 complainant and stated that some time earlier they had gone to look after their Janter crop and had heard the alarm near their land, reached the spot and witnessed Mehmood Ahmad appellant armed with a hatchet, Abdul Latif with a Kassi, Muhammad Rafique appellant and Bashir Ahmad acquitted co-accused with Dangs were causing injuries to Mahboob Alam deceased and within their sight Mehmood Ahmad appellant and Abdul Latif, acquitted co-accused had given blows on his face and head, due to which he fell down and on fallen Mehboob Alain, Muhammad Rafique appellant and Bashir Ahmad, acquitted co-accused injured him with Dang blows. They had witnessed the occurrence in the light of the torch. They further stated that they tired to save the deceased, but the accused raised Lalkara that whoever would come near, he would be killed. The accused were previously known to them and within their sight they lifted the dead body of deceased Mahboob Alam and took the same to their village. The motive behind was that Abdul Latif and Mehmood Ahmad suspected that their sister Mst. Siraj Bibi had illicit relations with the deceased and the accused in order to save themselves had also murdered Mst. Siraj Bibi after reaching their house. The suspicion was not correct. In fact there was money dispute as accused Abdul Latif and Mehmood Ahmad had to pay Rs,1,30,000 to the deceased and they were avoiding payment and the accused had killed Mahboob Alam without any reason. The accused were challaned and sent up for trial. A charge under sections 302/34, P.P.C. Was framed against the appellants and the acquitted co-accused, to which they denied and claimed trial.
4. The prosecution examined 15 P.Ws. In all to substantiate its case. P.W:1 Syed Munawar Mahboob Patwari had prepared site plans Exh.PA and PA/1. P.W.2 Muhammad Ramzan had identified the dead body of the deceased Mahboob Alam at the time of autopsy. P.W.3 Din Muhammad is the complainant who supported the contents of his complaint Exh.PB in minute details. He is not an eye-witness. P.W.4 Manzoor Ahmad is not an eye-witness of the occurrence and has stated that appellant Mehmood Ahmad had took along the deceased in his presence to his house. He joined the investigation and the police secured blood-stained earth from near the dead body of the deceased Mahboob Alam vide memo Exh.PD attested by him. The police also secured blood- stained earth from near the dead body of Mst. Siraj Bibi vide memo Exh.PE attested by him. He had also witnessed the recovery of last-worn clothes of the deceased. P.W.4 also witnessed the recovery of bloodstained Danda P.10 at the instance of Muhammad Rafique appellant, which was secured vide memo Exh.PI. He also witnessed the recovery of bloodstained hatchet P.11 at the instance of Mehmood Ahmad appellant which was secured by the police vide memo Exh.PJ. P.W.5 Shabbir Ahmad is an eyewitness of the present occurrence. He alongwith P.W.6 Allah Bachaya was patrolling there to look after his Janter crop and due to the alarm near their land he witnessed in the light of the torch that the appellants alongwith the acquitted co-accused were inflicting injuries to the deceased Mahboob Alam. Appellant Mehmood Ahmad was armed with a hatchet, whereas Rafique Ahmad was armed with Soti. The other co-accused were armed with Dangs. Mehmood Ahmad appellant had inflicted hatchet blows on the head of the deceased Mahboob Alam whereas Abdul Latif gave Kassi blow on his face, who fell down and thereafter all the four accused persons gave blows on the fallen Mahboob Alam with their respective weapons. He alongwith P.W.6 tried to rescue Mahboob Alam, but the accused threatened them and took away the dead body of the deceased towards their houses. He also witnessed the recovery of blood-stained earth from the place of occurrence vide memo Exh.PD. The police also secured in his presence dead body of the deceased lying at a distance of 1-1/2 acres from the place of occurrence. Thereafter, he also accompanied with the police party and from the house of Mehmood Ahmad appellant the police secured blood-stained earth P.2 from underneath the cot of Mst. Siraj Mai deceased, vide memo Exh.PE attested by him. In his presence Muhammad Rafique appellant led to the recovery of blood- stained Sairoo P.10 which was secured by the police vide memo Exh.PI attested by him. Mehmood Ahmad appellant also in his presence led to the recovery of blood-stained hatchet P.11 which was secured by the police vide memo Exh.PJ attested by him He had produced torch P.14 before the police. P.W.6 Allah Bachaya is another eye-witness of the present occurrence, who was patrolling along with P.W.5 near their Janter crop, heard the alarm, reached and witnessed Mehmood Ahmad appellant armed with hatchet, Rafique Ahmad appellant armed with a Sairoo, Abdul Latif acquitted co-accused armed with a Kassi and Bashir Ahmad armed with a Soti and within their sight Mehmood Ahmad appellant gave a hatchet blow on the head of Mahboob Alam while Abdul Latif, acquitted co-accused inflicted a Kassi blow on the face of Mahboob Alam deceased, who fell down and all the four accused thereafter caused injuries to the, deceased. He alongwith P.W.5 tried to save Mahboob Alam, but was threatened by the accused. In his and that of P.W.5 presence the accused dragged the dead body of Mahboob Alam to some distance and thereafter lifted the same and took to their Basti. He alongwith P.W.5 reached the house of P.W.3 Din Muhammad complainant and informed him about the occurrence.
5. P.W.7 Dr. Javed Hassan Ajmi on 7-7-1986 at 10-30 a.m. Conducted autopsy on the dead body of deceased Mahboob Alam and found 13 injuries on his person. Injuries Nos. 1, 2, 3, 4 and 6 were caused by sharp-edged weapon and the others by blunt weapon. On internal examination skull bone was fractured blow injury No,2 and scalp blow injuries Nos. 1, 2 and 6 was full clotted blood.
The brain matter was covered by clotted blood blow injury No,
2. The trachea was swollen below injury No,
5. In the opinion of the Doctor the cause of death was shock due to intra-cranial haemorrhage caused by injury No,
2. Injury No, 2 supplemented with injuries Nos. 3, 4 and 5 was sufficient to cause death in the ordinary course of life. All the injuries were ante-mortem in nature.
The probable time between injuries and death was about half an hour and time between death and post-mortem was about 9 hours.
' On the same day at 1.00 p.m. The same Doctor performed postmortem examination on the dead body of Mst. Siraj Mai and found on her person 9 injuries in all. Injuries Nos. 1, 2 and 4 to 8 were caused by sharp-edged weapon and others by blunt weapon. On internal examination skull was full of clotted blood below injury Nos. 1 and 2. The skull bone was also fractured below injuries Nos. 1 and 2, Membrane and brain were also cut at the sites of injuries Nos. 1 and 2. Mouth was also injured at sites of injuries Nos. 3 and 4. In the opinion of the Doctor, the cause of death was shock due to infra-cranial heamorrhage and injury to brain matter caused by injuries Nos. 1 and 2. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of life. The probable time between injury and death was about few minutes and between death and post-mortem was about 10 to 11 hours.
6. P.W.8 Maqbool Ahmad Constable was handed over 8 sealed parcels by P.W.9 Abdus Sattar, Head Constable, which he delivered in the Office of Chemical Examiner, Lahore intact. P.W.9 Abdus Sattar was working as Moharrir Head Constable. He was handed over a sealed parcel by the S.H.O.
(P.W.15). He handed over the same to P.W.8 for their onward transmission to the respective office.
P.W.10 Muhammad Ajmal has stated that the deceased Mahboob Alam used to purchase articles from his shop and he had maintained an account register and usually servants of Mahboob Alam deceased used to get things from his shop. The deceased had stopped purchasing articles from his shop about 8/9 months ago. The police had secured his account register (Khata) from him, and he had identified P.15, account of Mahboob Alam deceased. P.W.11 Abdur Rahim had not supported the prosecution version and was declared hostile. P.W.12 Malik Sacho stated that in his presence the police secured Khata from P.W.10 Muhammad Ajmal vide memo Exh.PQ attested by him. P.W.13 Khuda Bakhsh was an eye-witness of the murder of Mst. Siraj Bibi, but he did not support the prosecution and was declared hostile. P.W.14 Muhammad Siddique, A.S.I. Drafted the formal F.I.R.
Exh.PR. He had made preliminary investigation. P.W.15 Khurshid Alam, SI/SHO had arrested the appellants and had secured blood-stained Sairoo P.10 at the instance of Muhammad Rafique appellant and blood-stained hatchet P.11 at the instance of Mehmood Ahmad appellant vide memos PI and PJ attested by P.Ws. And after completion of the investigation he had challaned the accused.
7. P.Ws. Bashir Ahmad and Ghulam Yasin were given up by the prosecution, but were summoned by the Court as C.Ws. 1 and 2, who were witnesses of the murder of Mst. Siraj at the hands of the accused, but they have not supported the prosecution version. They had stated that they had heard the alarm from the house of Mehmood Ahmad appellant. They entered the house and witnessed Mehmood Ahmad appellant armed with a Kassi and Rafique Ahmad appellant armed with Sairoo inflicting injuries on Mst. Siraj Bibi, sister of Mehmood Ahmad appellant. On their inquiry Mehmood Ahmad appellant had stated that they had found Mst. Siraj Bibi in the company of Mehboob Naich in a naked position kissing each other that they had done away with Mehboob Naich and that they were then killing Mst. Siraj Mai also.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them. Appellant Mehmood Ahmad denied the recovery of blood-stained hatchet P.11 at his instance and in answer to the question "Why this case against and why the P.Ws. Have deposed against you?" had stated:--- "Mst. Siraj Mai is my real sister. On the night between 6th and 7th July, 1986 after watering our field I and Muhammad Rafique my co-accused were returning home when we found my sister Mst. Siraj Mai nearby my house within the area of Mouza Jheelan Wall in objectionable position. I lost myself control and out of sudden and grave provocation (Ghairat) chased and killed Mehboob Alam first and then came home where I and Muhammad Rafiq killed my sister Mst. Siraj Mai in the same fit of provocation in the presence of Ghulam Yaseen and Bashir Ahmad C.Ws. Ghulam Yaseen then called Haji Abdur Rasheed and Ghulam Ali Councillor I and Muhammad Rafique confessed before them about killing Mehboob Alam and Mst. Siraj Mai out of Ghairat. I and Muhammad Rafique were taken to P.S. Channi Goath alongwith our weapons Kassi and Dang and the police A.S.I. Arrested us too and seized our clothes after removing the same from our persons and also took into possession my Kassi and the Dang of Muhammad Rafique. In the morning the A.S.I. Took me and Muhammad Rafique to the spot in custody. No other recovery at any other date was effected from me. Din Muhammad, Allah Bachaya, Manzoor Ahmad and Shabbir have deposed falsely owing to their close relation with deceased Mehboob Alam."
' Appellant Rafique Ahmad also denied the recovery of Sairoo P.10 at his instance and made the same answer to the question "Why this case against you and why the P.Ws had deposed against you?" as stated by Mehmood Ahmad appellant. The appellants produced D.W.1 Sardar Ata Muhammad, Advocate and Jam Ghulam Ali, Councillor, as D.W.2. D.W.1 stated that in the month of July, 1986 on the day of occurrence he was present at Tranda Muhammad Panah when he learnt that a murder had taken place in Basti Bobra. He came to Basti Bobra where Abdur Rasheed, Jam Manzoor Ahmed and Khalil Ahmad Bobra met him. They informed him that their girl had been killed, and requestedlo approach the complainant so that they either did not get the case registered or in the alternative should not implicate any innocent person. He went to P.W.3 Din Muhammad complainant who was not present in Mauza Tahirwali and had found the appellants in police custody, where he learnt that the police had gone to the Dera of Malik Iqbal Naich, Advocate, Ahmedpur East. He proceeded there where he found an A.S.I. Of P.S. Channi Goath present alongwith Malik Din Muhammad complainant, Malik Iqbal Naich, Advocate, Jam Abdul Qadir Jhullan, Advocate and Manzoor Ahmad Naich and the F.I.R. Was being drafted. He, alongwith D.W.2 had asked the complainant that the matter should be patched up as the woman had also been killed and innocent persons should not be involved. D.W.2 Jam Ghulam Ali stated that he was sleeping in his house. Ghulam Yaseen (C.W.2) reached and told him about the murder of Mahboob Alam and Mst. Siraj Mai by Mehboob Ahmad and Rafique Ahmad appellants. He went to the house of Mehmood Ahmad and found Mst. Siraj Bibi murdered. The appellants were present. Mehmood Ahmad was armed with Kassi and Rafique Ahmad was armed with a Sota, and their clothes were also stained with blood. On his inquiry the appellants told him that when they were returning after watering their fields, Mahboob Alam and Mst. Siraj Mai were sitting outside in an objectionable position, therefore, they had killed them. They further told that Mahboob Alam had gone to some distance when they had chased him and killed him. They further told that in the same fit of Ghairat they had come home and killed Mst. Siraj Mai. After some time they were taken to the police station with their respective weapons and produced before the police.
9. I have heard the learned counsel appearing for the parties and have perused the record. The learned trial Court vide its impugned judgment have not believed the oral testimony furnished on record by the statements of eyewitnesses P.W.5 and P.W.6. The recovery evidence has also been disbelieved by the trial Court. The learned trial Court has also not accepted the prosecution version and has come to the conclusion that the deceased were done to death by the appellants on grave and sudden provocation after they had seen the deceased in objectionable position. Deceased Mahboob Alam was apprehended by the appellants at some distance when he was running away and was done to death, whereas Mst. Siraj Bibi ran to her house, the appellants followed her and killed her there. Mst. Siraj Bibi is sister of Mehmood Ahmad appellant and paternal-cousin of Rafique Ahmad appellant.
10. P.Ws. Bashir Ahmad and Ghulam Yasin, eye-witnesses of the murder of Mst. Siraj Bibi were given up by the prosecution as having been won over, but they were summoned and examined by the trial Court as C.Ws. 1 and 2, who stated that they had gone to the house of appellant Mehmood Ahmad after hearing the commotion, where they had witnessed the appellants Mahmood Ahmad and Rafique Ahmad armed with Kassi and Sairoo respectively and causingInjuries to Mst Siraj Mai.
C.Ws.1 and 2 further stated that on their inquiry the appellants had stated that the deceased Mst.
Siraj Bibi was found by them in an objectionable naked condition with Mahboob Alam deceased, and they had apprehended Mahboob Alam deceased after chasing him to some distance and done him to death, whereas Mst. Siraj Bibi escaped and rushed to the house and due to Ghairat they had also done her to death.
11. The learned trial Court has disbelieved the prosecution evidence and the Court is left with statements of the appellants and when the prosecution evidence is not believed and relied upon by the Court, the Court is left with one option only i,e, to believe the statements of the accused in totality. The appellants have specifically raised the plea that they had murdered the deceased on grave and sudden provocation when they had found the deceased in naked compromising position. The deceased Mahboob Alam was murdered at the spot whereas Mst. Siraj Bibi who had escaped from the scene, was done to death at the house. C.W.1 Bashir Ahmad and C.W.2 Ghulam Yasin who were eye-witnesses of the murder of Mst. Siraj Bibi were given up by the prosecution and were examined as C.Ws. And during their statements they had supported the plea raised by the appellants.
12. The appellants have raised specific plea of grave and sudden provocation and placing the same in juxtaposition with that of the prosecution case, I am of the view that the appellants had satisfactorily explained the plea 8 raised by them. The plea of the appellants is spelt out from the circumstances appearing in the case and the evidence on record. They have succeeded in establishing their plea.
13. The appellants were charged under sections 302/34 and 302/34, P.P.C. On two counts for committing the murder of Mahboob Alam Mst. Siraj Bibi, but in the impugned judgment the learned trial Court without applying its judicial mind has convicted and sentenced the appellants on one charge only and mentioned nothing in its judgment about the fate of the other charge. The learned counsel appearing with the appellants who are present on bail have been given notice that why they should not be convicted also on the charge of murder of Mst. Siraj Bibi. The verbal notice has been accepted by the appellants, However, the learned counsel for the appellants has prayed for leniency in the matter of sentence.
14. The appellants were arrested on 8-7-1986 and were convicted and sentenced on 23-12-1986 i,e, after five months and sixteen days of their arrest. The appellants' sentence was suspended by this Court on 5-6-1988 i,e, after 2 years and 17 days. The appellants have remained in jail for a period of about 3 years as under trial and convicts. While maintaining the conviction and sentence of the appellants under section 304-I, P.P.C, they are also directed to pay a fine of Rs3,000 each, in default whereof to suffer further R.I. For 6 months. They are also convicted and sentenced for the murder of Mst. Siraj Bibi under section 304-I, P.P.C. To undergo rigorous imprisonment for a period of 5 years'
R.I. Each and a fine of Rs,3,000 each in default whereof to suffer further R.I. For 3 months each. The sentences of the appellants awarded to them on both counts shall run concurrently. They shall also be extended the benefit of section 382-B, Cr.P.C. I am of the view that the period already undergone by them as undertrial and convicts with a fine of Rs,3,000 each on each count, and in default of payment to undergo 6 months' R.I. On each count shall meet the ends of justice. The appellants are present on bail, their bail bonds are discharged. They shall deposit the amount of fine on both the counts within 15 days in the trial Court. The connected revisions have no merit and are dismissed accordingly.