Amanullah (30 years) and Imam Bakhsh (40 years) were sent up for trial by Police Station Bangla Iccha, Rajanpur in case F.I.R. No.91 of 1991 under section 302/34, P.P.C. For the murder of Ghulam Muhammad and Noor Khatoon. Learned Additional Sessions Judge, Rajanpur, vide his judgment, dated 31-10-1993 found them guilty of offence under section 302(c), P.P.C. And sentenced them to 10 years' R.I. With a fine of Rs.4,000 each or in default in payment of fine to suffer further R.I. For three months. It was further ordered that the amount if recovered, would be paid to the legal heirs of Ghulam Muhammad, deceased.
2. Briefly, the facts of the case as narrated in F.I.R. (Exh.P.E.) were that the complainant Khawand Bakhsh alongwith Bangla (P.W.9) and Muhammad Sharif P.W. (not produced) were cutting the grass in the garden. Ghulam Muhammad deceased who was Munshi/personal servant of Ashiq Muhammad Khan (landlord) used to have rounds of the garden. At the eventful time Ghulam Muhammad deceased, was walking on a katcha road from North towards South. Amanullah and Imam Bakhsh, appellants, both armed with guns .12 bore, emerged from the crop and proclaimed that the deceased was their "Kala". Both the appellants simultaneously opened fire which hit on the chest of the deceased. Ghulam Muhammad deceased fell on the ground. Both the appellants then ran towards the East alongwith their weapons. After covering one furlong, they attacked Noor Khatoon, who was also cutting grass. Imam Bakhsh opened fire at Noor Khatoon deceased, which hit the body of Noor Khatoon. Both Noor Khatoon and Ghulam Muhammad died at the spot.
The occurrence took place at 9-00 a.m., on 19-9-1991. F.I.R. (Exh.P.E.) was lodged by Allah Wasaya (P.W.8) on the statement of Khawand Bakhsh at 9-45 a.m. On the same day. Investigation of the case was conducted by Allah Wasaya S.I. According to him, after lodging the F.I.R. (Exh.P.E.), he alongwith the police party and complainant proceeded to the place of occurrence. He picked up blood-stained earth from the place of murder of Ghulam Muhammad and prepared sealed parcel vide memo. (Exh.P.F.). He also picked up blood-stained earth from the place of murder of Noor Khatoon and prepared sealed parcel vide memo Exh.P.G. He picked up the crime empties (P.7-8) and (P.9-11) from the place of murder of Ghulam Muhammad and Noor Khatoon and made sealed parcel vide memo. Exh.P.H. And Exh.P.J. Respectively From the place where dead body of Noor Khatoon was lying, he picked up ' Dranti' (P.12) a bundle of grass (P.13) and Chadar (P.14) which were taken intopossession vide memo. Exh.P.K. He prepared inquest report of both the deceased (Ghulam Muhammad and Noor Khatoon) vide Exh. P. L. And Exh. P. O. Respectively. He also inspected dead bodies of both the deceased and prepared injury statement Exh.P.M. And Exh. P.N.
Respectively. Thereafter he. Despatched both the dead bodies for mortuary. After post-mortem examination, last worn clothes of Ghulam Muhammad (P.1 to P.3) and that of Mst. Noor Khatoon (P.4 to P.6) were produced before him by Mujahid Mehmood (P.W.2) and Abdul Sattar (P.W.5)
Constables, which he took into possession vide memo. Exh.P.A. And Exh.P.D. Respectively. He also got prepared site plan Exh.P.B. And Exh.P.C. By Rashid A.I, Patwari (P.W.3). He arrested both the appellants on 21-9-1991, from front of the house of Amanullah, appellant. After about 45 minutes of the arrest of Amanullah in police custody, led to recovery of gun (P.15), which was taken into possession vide memo. (Exh.PP). Amanullah appellant also produced his licensed gun (P.17), which was taken into possession vide memo (Exh.P.S.). Similarly Imam Bakhsh in police custody also led to recovery of his gun (P.16), which was taken into possession vide memo. (Exh.PQ). He sent the crime empties recovered from the spot to Forensic Science Laboratory, Lahore, for analysis.
4. Dr. Abdul Wahab (P.W.11) Medical Officer, B.V. Hospital, Bahawalpur, conducted the post-mortem examination on the both dead bodies. According to him fire shots on both the deceased were made within 6 feet. On a suggestion he stated that nature of injuries suggest that fire was not made from a distance of about 20 feet. He opined that Ghulam Muhammad deceased might had taken his last meal three hours prior to his death and Noor Khatoon deceased might had taken her last meal more than 6 hours prior to death. He further opined that this period might extend to one day. He had taken urethral and vaginal swabs from the dead bodies of Ghulam Muhammad and Mst. Noor Khatoon and sent the same to Chemical Examiner, Multan, through Abdul Sattar Constable for analysis.
5. Khadim Hussain husband of Mst. Noor Khatoon deceased was prosecution witness but prosecution did not produce him. He presented an application to make statement in Court. He appeared in trial Court as Court witness (C.W.1) and stated that Ghulam Muhammad deceased was living in the garden without his family members and it was his duty to look after the garden and cotton crop. He denied the fact that there was distance of one furlong between places, where dead bodies of Ghulam Muhammad and Mst. Noor Khatoon deceased were laid. He testified the fact that dead body of Ghulam Muhammad deceased lay to the west of road, while dead body of Mst. Noor Khatoon lay on the Eastern side of the road. He stated that Mst. Noor Khatoon deceased did not use to cut the grass as he and his father-in-law had no animals.
He also stated that 25 days prior to the occurrence mother of Mst. Noor Khatoon deceased had taken her to her own house.
6. Ocular account was furnished by Mahi son of Incharge (P.W.6), Khawand Bakhsh, complainant D/O.Darria (P.W.8) and Bangal Khan son of Elahi Bakhsh (P.W.9).
7. At the conclusion of prosecution evidence, the appellants were examined without oath under section 342, Cr.P.C. Both the appellants refuted all the allegations including the recovery of weapon, pleaded innocence and stated that in fact Bangal Khan P.W.9, wanted to have sexual connection with Mst. Noor Khatoon, deceased. Ghulam Muhammad deceased was also her lover. Bangal Khan committed the murder and falsely implicated them in connivance with the local Sardars and police.
8. It is contended by the learned counsel for the appellants that Khawand Bakhsh, complainant, Bangal Khan, P.W.9 and Mahi P.W.6 were unnatural, not truthful, interested witnesses, also inimical to the appellants and that Barkat A.I, Chairman, Ahmad Jan, Accountant and Baildars of the garden were present in the garden, they were natural witnesses, but they were not cited as P.Ws; and that all the P.Ws. Did not attend injured Ghulam Muhammad and preferred to follow the accused and as such exhibited unnatural conduct, they should not have chased the accused, who were shown to be carrying lethal weapons and their first anxiety or preference would have to attend the' Ghulam Muhammad deceased; and that complainant admitted that towards West of Mst. Noor Khatoon deceased, garden of citrus and guava extended up to one furlong, Mst. Noor Khatoon was not visible from the place, where Ghulam Muhammad was killed,' as such, they were not truthful witnesses; and that ocular account is not corroborated with, medical evidence as the complainant stated in clear words that Ghulam Muhammad deceased was fired from a distance of 10 karams (about 55 feet), while Doctor opined that fire hit both the deceased within a distance of 6 feet; that distance of place of occurrence and police station, one mile according to complainant, as he reached at police station at 9-45 a.m. And after recording the F.I.R., came back to the place of occurrence at 10-15 a.m. Alongwith police party, while he travelled on foot, both sides and police could not be there at place of occurrence within such a short span of time; that police did not associate any person from the vicinity/locality rather, they accompanied with Bangal Khan P.W.9, who was inimical towards the accused and as such violated the mandatory provision of section 103, Cr.P.C. He argues that the reports of Chemical Examiner, Multan clearly shows that both the urethral and vaginal swabs are stained with semen. He further urged that the occurrence took place due to the grave and sudden provocation and had requested lenient view, in view of the material contradiction in the ocular account as also in the medical evidence.
9.The contentions are opposed by the learned State Counsel.
10. I have heard the arguments and gone through the file. Prosecution m order to establish its case has mainly relied upon Mahi P.W.6, Khawand Bakhsh complainant P.W.8, Bangal Khan, P.W.9, and report of Forensic Science Laboratory. I have given my anxious consideration to the evidence produced. There are negligible contradictions between ocular account and medical evidence.
Khadim Hussain husband of Mst. Noor Khatoon deceased, appeared as C.W.1 clearly contradicted the statements of P.Ws and also the investigation.
11. Before forming any definite conclusion, I proceed to critically examine, evaluate and discuss the evidence. Amanullah appellant is real brother of Mst. Noor Khatoon deceased. Prosecution case is that the appellants had a suspicion that Ghulam Muhammad deceased had illicit liaison with Mst.
Noor Khatoon deceased. Occurrence took place in the garden which consists of mango, citrus and other trees. Patwari stated that there were plants of citrus in dense area round the place, where dead body of Mst. Noor Khatoon lay. He deposed that there was jantar crop around the place, where dead body of Ghulam Muhammad deceased lay. Patwari further stated that garden existed in six squares. It is in evidence that jantar crop and cotton crop were present in the vicinity. Khadim Hussain CW.1 had given altogether different story about the occurrence. He stated that he had no suspicion that Mst. Noor Khatoon was carrying on liaison with Ghulam Muhammad. He further stated that Anamullah and Imam Bakhsh had not murdered Ghulam Muhammad and Mst. Noor Khatoon considering them, as "kala kali". He reached the spot prior to the police party. In cross- examination he had stated that when he reached the spot Bangal Khan alongwith two persons were present there and Bangal Khan had gun in his hand and other two persons were carrying sticks. He has further stated that after burial of Mst. Noor Khatoon, he had gone to police station, where Bangal Khan P.W.9 was present as a suspect accused. Barkat A.I, Chairman, Ahmad Jan, Accountant and Riaz Chaungli were present there. In the last he had stated that both the accused were innocent. The doctor while conducted post-mortem had taken urethral and vaginal swabs from the dead bodies of Ghulam Muhammad and Mst. Noor Khatoon. Report of Chemical Examiner to this effect was that urethral and vaginal swabs were stained with semen. Report of the Forensic Science Laboratory was that the cartridges were fired from the recovered guns.
12. Keeping in view entire gamut of the circumstances and evidence of the case, I, conclude that both the deceased Ghulam Muhammad and Mst. Noor Khatoon had assembled in a thick place of garden for sexual affair. Somehow the accused persons became cognizant of their presence at the venue of occurrence they reached the spot duly armed and found both the lovers a pari delicto position. The appellants lost power of self-control and acted on grave and sudden provocation.
They fired at both the deceased and caused their death. The trial Court has rightly convicted the appellants under section 302(c), P.P.C So far as the quantum of sentence is concerned, the appellants are behind the bar, ever since their arrest and while maintaining the conviction, I reduce the sentence from 10 years' R.I. To 4 years' R.I. The sentence of fine and compensation, however, maintained. The appellants shall also be entitled to the benefit of section 382-B, Cr.P.C.