1. Bashir Ahmad 25 years, Allah Yar 35 years, Manzoor Ahmad sons of Sultan with Zahoor Ahmad 22/23 years were sent up for trial by Police Station, Malka Hans for the murders of Abdus Sattar and Mst. Bashiran. Additional Sessions Judge, Pakpattan vide his judgment, dated 25-1-1993 gave the benefit of doubt and acquitted Manzoor Ahmad. Bashir Ahmad, Allah Yar and Zahoor Ahmad, however, were found guilty under section 302(b), P.P.C. And' each of them was sentenced to imprisonment for life for the murder of Abdul Sattar with a direction to pay compensation of Rs.10,000 each to the legal heirs of the deceased or in default six months' imprisonment. Each of them was further convicted under section 201/34, P.P.C. And sentenced to two years' R.I. With a fine of Rs.5,000 each, They however were given the benefit of section 382-B, Cr.P.C. As well. They were acquitted of the charge of murder of Mst. Bashiran as her legal heirs had effected a compromise and forgiven them. The convicts have appealed. Complainant has also filed a revision seeking enhancement of sentence, which was ordered to be heard alongwith the appeal. Both the matters will be disposed of by this judgment Prosecution story in brief as disclosed in the F.I.R. Exh.PD was to the effect that first informant Alam Sher had kept his residence with his brother Abdul Ghafoor where his other brother Abdus Sattar had built a shop of general provisions. On the night of 20-12-1991 at about 12-30, they heard some commotion from the shop. First informant with his brother Abdul Ghafoor came to the spot and saw Manzoor armed with .12 bore gun, Allah Yar with hatchet, Bashir with Sota and Zahoor with Sota present there. They were identified in the moon-light. They called out Abdul Sattar. He raised the shutter of the shop, whereupon Bashir Ahmad picked up 7-MM rifle of first informant's brother and gave a blow with its Butt on the forehead of Abdus Sattar, who fell outside the shop. He gave another blow on the chin. Zahoor gave repeated injuries to Abdus Sattar, and Allah Yar gave injuries with wrong side of his hatchet. Manzoor Ahmad raised a Lalkara if anybody came near he would meet the same fate therefore they did not go to Abdus Sattar, who died at the spot on account of the injuries. Thereafter, the assailants'dragged the dead body of Abdus Sattar to their Dera and they brought Mst. Bashiran wife of Zahoor Ahmad accused and killed her as well. Motive for the occurrence was that the appellants suspected Abdul Sattar of having illicit relations with Mst. Bashiran.
2. Occurrence in this case had taken place on 20-12-1991 at 12-1/2 at night, inside the shop of Abdus Sattar situated within the house of Alam Sher P.W., 16.9 Kilometres from Police Station Malka Hans.
3. F.I.R. PD was got registered the same day at 6-30 a.m. By Alam Sher P.W.4 which was recorded by Muhammad Akram S.H.O. P.W.7.
4. The prosecution in order to establish its case produced eight witnesses in all. P.W.1 Muhammad Aslam had escorted the dead bodies to mortuary and thereafter he had produced the last-worn clothes of both the deceased. Jaffar A.I, A.S.I. P.W.2 was posted as Moharrar. He was entrusted with sealed parcels containing blood-stained earth and rifle. He kept them in custody and thereafter sent them to the respective offices. Farooq Ahmad P.W.3 had prepared site plan Exhs.PC and PC/1 on the direction of the police and pointing of the witnesses. Alam Sher and Abdul Ghafoor P.Ws.4 and 5 had given the ocular account. Waryam P.W.6 had witnessed the recovery of blood--stained earth from the spot. He had also witnessed the recovery of broken pieces of the Butt of the rifle and had signed both the memos. The case was investigated by Muhammad Akram Inspector/S.H.O.
5. P.W.7.
6. Dr. Faqir Ahmad C.M.O., D.H.Q. Hospital, P.W.8 had conducted post-mortem examination on the dead body of Abdul Sattar and found that the body was nude and observed the following injuries:
(1) A contused diffused swelling of 4 c.m. x 4 c.m. On the top of left part of scalp about 8 c.m. Above the left pinna.
(2) A lacerated wound of 3 c.m. x 1/2 c.m. x bone deep, transverse in direction and the left part of forehead just above the left eyebrow.
(3) A lacerated wound of 4 c.m. x 1/2 c.m. Muscle lacerating, transverse in direction between the lower lip and chin.
(4) A lacerated wound of 8, x 6 c.m. On the upper part of front of neck,beneath the chin. The wound was going blind deep.
(5) A bruise of 12 c.m. x 4 c.m. On the front of neck and left side of neck running obliquely from the front of laryngeal prominence to the outer and left side.
(6) A bruise of 15 c.m. x 2 c.m. Obliquely in direction running from front of lower part of neck the front of upper part of right chest.
(7) A bruise of 15 x 2 c.m. Oblique in direction on t1.e front of upper part of left chest.
(8) An abrasion of 3 x 2 c.m. On front of cuter 3rd of left clavicle.
(9) A bruise of 4 x 2 c.m. On the outer aspect of left shoulder-joint.
(10) An abrasion of sixteen x eight c.m. On the back of right chest about in the middle.
(11) A bruise of 15 x 2 c.m. On the fith buttock.
(12) An abrasion 4 x 3 c.m. On the outer aspect of upper part of right thigh.
(13) An abrasion of 2 x 2 c.m. On the under surface of right scrotum.
7. On the same day at, 6-50 p.m. Lie conducted 'the post-mortem examination on the dead body of Mst. Bashiran. The body was nude and following injuries were observed:
(1) A lacerated wound of 5, x 1 c.m. Bone deep on the right part of head about 10 c.m. Above the right pinna wound was longitudinal in direction.
(2) A lacerated wound of 2 x 2 c.m. Skin deep on the back of neck on its right upper part.
(3) A bruise of 10 x 3 c.m. On right side of the neck on its upper part and back of right ear, bruise was oblique ill direction.
(4) A bruise of 6 c.m. x 1.5 c.m. On the upper part of back of right shoulder blade. Bruise was transverse in direction.
(5) A bruise of 6 x 1.5 c.m. On the back of lower part of right shoulder blade. Bruise was transverse in direction.
(6) A bruise of 3 x 2 c.m. On the back of left side of chest about in the middle.
(7) A bruise of 5 x 1.5 c.m. Tranverse in direction on the back of posteriorabominal wall bout in its middle.
(8) A bruise of 6 x 2 c.m. On the right buttock.
8. According to his opinion death had occurred because of injury No.3 which was sufficient to cause death in the ordinary course of nature. He had also taken vaginal- swabs which according to the report of Chemical Examiner were stained with semen. He had also opined that sexual intercourse had been committed with the deceased.
9. At the conclusion of the prosecution evidence appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. Bashir Ahmad in answer to question stated that on the fateful night he woke-up on the alarm of his co-accused Zahoor Ahmad as some body armed with a rifle had trespassed into their house and was committing Zina with the wife of Zahoor Ahmad co-accused, in their Dera. Bashir Ahmad picked up a stick and went towards the Dera. He and Zahoor Ahmad co---accused husband of Mst. Bashiran, found Mst. Bashiran and Abdul Sattar naked in compromising position. On seeing them said Abdus Sattar attacked with his rifle, which missed; thereafter they caused him injuries in self-defence as well as under grave and sudden provocation. The rifle of the deceased Abdus Sattar was broken into pieces in this process, The alarm attracted many people who also belaboured them. He further stated that his co- accused Allah Yar and Manzoor Ahmad were not present at the spot. Zahoor Ahmad accused also stated to the same effect. '
10. It was contended by learned counsel for the appellants that prosecution has failed to establish its case beyond doubt. Argued that the defence version was more plausible than the prosecution case, therefore, the same should be accepted. Argued that the dead body was recovered from the Dera of the appellants. Blood-stained earth was also secured from the same place. Both the dead bodies were found naked which clearly indicates that the version of the appellants was correct.
11. Contentions were opposed by learned counsel for the State.
12. I have heard the learned counsel and gone through the file. The prosecution in order to establish its case mainly relied upon ocular account furnished by Alam Sher and Abdul Ghafoor P.WsA and 5 respectively. Both of them corroborated the prosecution version as given in the F.I.R. But in cross--- examination Alam Sher admitted that he knew about the illicit relations of Mst. Bashiran with Abdus Sattar. The statement of the eye-witnesses does not inspire confidence because they asserted that after the occurrence Abdus Sattar deceased was dragged from his house to the Dera of the appellants. The Investigating Officer however neither observed any dragging marks on the ground nor the doctor found any injury on the person of Abdus Sattar which could be the result of dragging. The explanation how and why Abdus Sattar was naked. It cannot be the case of prosecution that on account of hot weather the deceased had taken off his clothes because the occurrence had taken place in the month of December. The prosecution story is further belied by the report of the Chemical Examiner, according to which vaginal swabs were found stained with semen. The Investigating Officer stated that both the dead bodies were found in the house of the appellants and were naked. The prosecution's own case was that Mst. Bashiran was married one month earlier, yet the doctor found her pregnancy 12 weeks old. This fact also belies the ocular account.
13. Keeping in juxtaposition the prosecution version and the defence version, the defence version appears to be more plausible. The naked dead bodies were found in their house and the report indicated that sexual intercourse had been committed. I feel if a husband or a brother sees his wife or sister indulging in Zina with a stranger, it would be a grave and sudden provocation. Therefore, relying upon the statement of the appellant it is held that they acted under grave and sudden provocation. While partly accepting the appeal the conviction and sentence of the appellants recorded under section 302(b), P.P.C. Is converted to 302(c), P.P.C. And sentence of imprisonment for life of each of the convict is reduced to three years' R.I. The sentence of compensation is set aside. Conviction and sentence recorded under section 201, P.P.C. Is also set aside. They shall be given the benefit of section 382-B of the Cr.P.C. For the same reasons, the Criminal Revision fails, which is, accordingly, dismissed.