1. This is an appeal filed by appellant Rehmatullah son of Muhammad Yousuf Soomro against the judgment dated 20-9-1994 passed by learned Sessions Judge, Sukkur whereby the appellant, was convicted under section 304, P.P.C. And sentenced to suffer R.I. For 10 years and also to pay a fine o f Rs.10,000 or in default to suffer R.I. For one year more. If the amount of fine is realised to be paid to the legal heirs of the two deceased in equal shares as compensation under section 544-A, Cr.P.C.
2. No benefit of section 382-B was given to the appellant.
3. The case of prosecution as set up by complainant Muhammad Sachal son of Rasool Bux Kolachi in his F.LR. Crime No.82 of 1989 is that P.C. Manzoor Ahmed was son of his sister, who was deputed as Guard at microwave station on that day complainant and P. W, Khuda Bux were on their way to microwave and when they reached at Gadani Chowk they saw Manzoor Ahmed and P.C.
4. Hamadullah alongwith one lady coming towards them and on reaching nearer complainant enquired from Manzoor Ahmed as to what was the matter on which the latter replied that, that lady had gone to microwave and had enquired about H.C. Deedar Hussain who was not on duty and on request of the ladY they were going to leave her at her house. By that time accused. Rehmatullah having double barrel gun, accused Abdullah, A.I Muhammad soomo and two unknown persons are said to have reached there and told that the lady was their and they asked that lady and deceased P.O. Manzoor Ahmed for accompanying them. On enquiry made by the complainant as to why they were taking Manzoor Ahmed, they threatened the complainant. The complainant and P. Ws. Due to fear kept silent and proceeded further. It was 10-00 P.M. When the complainant noticed fire shot reports as such complainant and P. W. Khudadad returned and went towards the directions of the fire shot and saw Rehmatullah having double barrel gun, Abdullah, A.I Muhammad and two unknown persons having Lathis coming out by opening a door and on seeing the complainant, Rehmatullah and others asked them not to go nearer they had killed Manzoor Ahmed and their lady, and they then are said to have gone towards western side. Inside the door complainant and P. W. Khudadad found dead bodies of Manzoor Ahmed and of that lady and then complainant leaving P. W. Khudadad and Hamadullah over the dead bodies rushed to P.W. 'B'
5. Section Sukkur where he lodged his report.
6. After registration of case S.I.P. Abdullah Khan, Additional S.H.O., Police Station 'B Section took over the investigation and after completion of investigation handed over case papers to S.H.O., Police Station 'B' Section who finally challaned the appellant and co-accused, who were tried by learned Sessions Judge who by acquitting co-accused, convicted and sentenced the appellant as above.
7. On 29-10-1990 charge against accused was framed to which they pleaded not guilty and claimed to be tried.
8. The prosecution at the trial examined seven witnesses namely complainant Muhammad Sachal who has produced his F.I.R. P.W.2 eye-witness Khudadad who produced his 164, Cr.P.C. Statement P.W.3 M.O. Dr. Waqar Hussain who produced post-mortem examination report of deceased Mst.
9. Khalillan and post-mortem examination report of deceased Manzoor Ahmed, P.W.4 Abid A.I who produced his 164, Cr.P.C. Statement. P.W.5 eye-witness Hamadullah who has produced his 164, Cr.P.C. Statement, P.W.6 Mashir Abdul Jabbar who has produced Mashirnama of Wardat, inquest report of deceased Manzoor Ahmed, inquest report of deceased Mst. Khalillan, Mashirnama of arrest of accused A.I Muhammad, Mashirnama of securing Lathi from accused A.I Muhammad, Mashirnama of arrest of accused Abdullah, P.W.7 Abdullah Awan who has produced Mashirnama of arrest and securing of gun from accused Rehmatullah Mashirnama of blood-stained clothes of two deceased, chemical examiner's report.
10. Accused were examined under section 342, Cr.P.C. Wherein they denied the allegations of the prosecution. Appellant in his statement further stated as under:--- "On 4-7-1989 my family had gone to attend a ceremony held on a Mazar on our village. I and my niece Mst. Khalillan remained back in the house Sukkur. I took meals at about 8-00 p.m. And went asleep. At about 10-00 p.m. I came out for going to ease myself. I saw my niece Mst. Khalillan and deceased Manzoor Ahmed sleeping on a cot near the bath room of the house. They embracing each other. I was enraged. I picked up a licensed gun of my brother Abdullah and ran towards that place and fired gun shot at both the deceased as a result of which Mst. Khalillan fell down on the cot while Manzoor Ahmad got up from the cot and started running. I gave blow with butt of the gun on his thigh, hence he fell down. Both the deceased died at the spot. Ghulam Murtaza, Akram and other neighbour came there. Ghulam Murtaza and Akram advised me. To lodge report as it was a matter of grave provocation. They accompanied me at the P.S. 'B' Section, Sukkur where I approached the Sobedar and narrated the facts to him. I 'showed him my willingness to confess. I was locked up. Afterwards Muhammad Sachal alongwith A.S.-I. Rasool Bux came at P.W. They talked to the Sobedar and got involved my brother Abdullah and other relatives at the instance of first informant and A.S.-I. Rasool Bux. Despite my confess. I was not produced before any Magistrate for recording my confession or for any other purpose. I had produced the licensed gun of my brother Abdullah before police. I had also produced licence before them but mala fidely they did not mention that fact. I produced the photostat copy of the extract from the licence as the original was with police."
11. Appellant also examined himself on oath under section 340(2), Cr.P.C, and was cross-examined at length.
12. I have heard Mr. Nooruddin Sarki, learned counsel for the appellant and Mrs. Nasreen Zaffar learned counsel for the State and have gone through the evidence of prosecution witnesses and the observations of trial Court while going through the impugned judgment which reads as under:--- "I have very carefully examined the evidence of three eye-witnesses namely Muhammad Sachal P.W. Khudadad and P.C. Hamadullah and find that it has been very well established by the defence that all these three witnesses have not witnessed actual incident, first of all these three eye- witnesses have been belied by prosecution own witness P.W.4 Abid A.I who in his deposition has stated that: 'About 3/4 years back at about 7-30 p.m. When I was posted and was on my duty as watchman at the microwave station in front of Numaish ground one lady came inside the gate and enquired about H.C. Who used to be on duty. His name was perhaps Manzoor Ahmed, he was not there at that time'. "
13. Mr. Nooruddin Sarki has mainly pressed appeal for reduction of sentence whereof Mrs. Nasreen Zaffar, counsel for the State has supported the judgment of trial Court by contending that the trial Court has already taken a lenient view in circumstances of the case.
14. Mr. Sarki contended that the prosecution has very miserably failed to prove its case as observed by the trial Court, co-accused have been acquitted on same set of evidence appellant was also entitled to benefit of doubt. But conviction in this is based only on admission of the appellant made by him in his section 342 and section 340(2), Cr.P.C. Statements.
15. Mr. Sarki contended that the case is of grave and sudden provocation, trial Court should have taken more lenient view while deciding the case, and should not have awarded compensation to the heirs of deceased. Learned counsel has cited, Rehmatullah Khan v. Crown PLD 1950 Lah. 109; Mewa v. The State PLD 1968'Lah. 468, The State v. Akbar PLD 1961 Lah. 24, Muhammad Sadiq v. The State PLD 1966 Lah. 104, The State v. Muhammad Hanif and others 1992 SCMR 2047, A.I Muhammad v. The State 1993 PCr.LJ 557 and Mahmood Ahmed v. The State 1994 MLD 331.
16. I have gone through the record of this case and have also heard the learned counsel for the appellant and learned counsel for the State, and have considered observations of learned trial Judge made in the impugned judgment.
17. The appellant has admitted the killings and explained the circumstances in which he found his niece and deceased Manzoor Ahmed sleeping on cot near the bathroom of the house and they were embracing each other. This plea of defence was accepted by the learned Judge of trial Court, who by disbelieving the whole prosecution version acquitted co-accused while convicted and sentenced appellant as above.
18. The concluding para. Of the judgment is reproduced which is as under:-- "In view of the above discussions of the prosecution evidence I am fully convinced and satisfied that the prosecution has very miserably failed to prove its case against the accused and in absence of unreliable and unimpeachable evidence it will therefore be unsafe to rely on the prosecution evidence. However, I am satisfied that the defence has been able to prove its version beyond any doubt and under the peculiar circumstances of this case accused A.I Muhammad, Abdullah and Ghulam Mustafa have become entitled for their acquittal and they are hereby acquitted from the charge. Since it has been admitted by accused Rehmatullah that he killed two deceased with grave and sudden provocation and he has been able to prove this plea, as such his case comes under the ambit of exception I to section 300, P.P.C. And he is therefore convicted for offence under section 304, P.P.C. And is sentenced to suffer R.I. For ten years and also to pay a fine of Rs.10,000 and in default of the payment of the fine, the accused shall further undergo R.I. For one year more. The amount of fine if realized be paid to L.Rs. Of two deceased in equal shares as compensation under section 544-A, Cr.P.C."
19. I agree with the findings and observations of the learned trial Judge but do not agree with the quantum of sentence and awarding compensation to heirs of deceased. Appellant/accused acted under grave and sudden provocation. No compensation is to be awarded in circumstances of the case. The sentence of fine is accordingly set aside.
20. It was contended by the learned counsel for the appellant, that the appellant has remained in jail for 3 years as an under trial prisoner and after his conviction and the same will meet the ends of justice to which learned counsel for the State has opposed.