SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the Judge of the Division Bench of the High Court whereby, conviction under section 302, P.P.C. And sentence of death awarded to Muhammad Yaqoob, respondent No.1 by the trial Court for committing the murder of Mst. Surayya and Muhammad Wakil and a fine of Rs.15,000 was set aside and he was convicted under section 304, Part I, P.P.C. On two counts and sentenced to undergo R.I. For ten years plus fine of Rs.1,000 on each count or in default whereof to undergo R.I. For three months on each count. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C.
Was also given.
2. According to the F.I.R, Khan Muhammad complainant, P.W.3 lodged a report that he 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 Yaqoob firing twice with his rifle at his sister Mst. Surayya in the room of his father's house, door of which was open. Abdul' Shakoor and Muhammad Yousaf P.Ws. Also came there and they saw the occurrence. The complainant hid himself behind the door of the house of his father-in-law and saw Muhammad Yacloob coming out of his house raising Lalkara and started towards the Bazar saying that he would not spare him (the complainant) and Muhammad Wakil. Abdul Shakoor and Muhammad Yousaf ran after him to catch him. The accused seeing Muhammad Wakil in the Bazar fired twice at him. Abdul Shakoor and Muhammad Yousaf P.Ws. Snatched the rifle from him, which was a licensed weapon of his father Saeed Ahmed Shah. About the motive of the occurrence it was alleged by the complainant that he had started business of oil and fertilizer which with the help of Muhammad Wakil had flourished. One Fiaz Muhammad was also engaged in the same business, but was not prospering ' due to business rivalry, Faiz Muhammad abetted his relative Muhammad Yacloob to murder Muhammad Wakil. Muhammad Yacioob accused in his statement stated that deceased Muhammad Wakil and his sister Mst. Surayya deceased were lying in a compromising position in his house. Under grave and sudden provocation he shot both Muhammad Wakil and Mst. Surayya.
Believing both of them to have died, he went to the house of Mubarik Khan Lambardar alongwith his rifle. Naik Muhammad, and Rashid were also there and he narrated the entire incident. All the three then produced him before the police with the rifle. Defence witnesses were also examined.
The learned Trial Court taking into consideration the evidence of the prosecution as well as defence witnesses and also taking note of the fact that the medical examination of Mst. Surayya to the effect that her organs of generation, external and internal and hymen were intact and uterus was empty, came to the conclusion that the prosecution has succeeded in establishing its case against the accused beyond reasonable doubt and the charge under section 302, P.P.C. Has been proved against Muhammad Yacioob. Accordingly he was sentenced to death as stated above.
When the matter came up for confirmation and appeal, the learned Judge of the High Court while setting aside the conviction under section 302, P.P.C. Convicted respondent No.1 under section 304, Part I P.P C, with the following observation:-- "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 Wakil 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 Wakil 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.
Surayya (deceased) while Muhammad Wakil, 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 grive and sudden provocation."
3. The learned counsel for the petitioner has contended that the question of grave and particularly sudden provocation does not arise in the facts and circumstances of the case as Mst. Surayya and Muhammad Wakil were shot at different places. Mst. Surayya was shot dead in her house while Muhammad Wakil was shot dead in the Bazar. We grant leave to consider, whether on proper appreciation of evidence on record the case could fall under section 304, Part I, P. P. C .