' ASIF SAEED KHAN KHOSA, J.---Imam Bakhsh appellant was convicted by the learned Sessions Judge, Muzzafargarh vide judgment, dated 22-7-1996 on two counts of an offence under section 302(a), P.P.C., and was sentenced to death as Qisas on both the counts. Through the same judgment his brother Muhammad Bakhsh and stepfather Khuda Bakhsh were acquitted by the learned Trial Court of the charges against them. Imam Bakhsh convict has challenged his conviction and sentences before this Court through Criminal Appeal No,260 of 1996 filed by him through jail and also through Criminal Appeal No,261 of 1996 filed by him 'through a learned counsel which have been heard by us along with Murder Reference No,221 of 1996 seeking confirmation of the sentence of death passed against him. We propose to decide these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Karim Bakhsh complainant and his brother- in-law Noor Muhammad went to the house of Imam Bakhsh appellant at 10-00 p.m. On 20-8-1994 as Noor Muhammad had to get a sum of Rs,10,000 back from Imam Bakhsh appellant who was also a brother-in-law of Noor Muhammad. Finding Imam Bakhsh appellant present in his house Noor Muhammad demanded repayment of his money by Imam Bakhsh whereupon Imam Bakhsh flew into a rage. Imam Baldish appellant then started abusing Noor Muhammad and said that Noor Muhammad had disgraced him at the appellant's own house for which he would be taught a lesson right-away. Imam Bakhsh appellant then brought out his licensed .12 bore gun from his room. The hue and cry raised by the complainant and Noor Muhammad attracted their relatives Ahmad Yar and Ghulam Qadir to the spot who reprimanded Imam Bakhsh appellant. At about 11- 00 p.m. Imam Bakhsh fired a shot at Noor Muhammad hitting him on the left side of his front chest upon which Noor Muhammad fell down and died. The fire-report and the noise, thus, created attracted Muhammad Bakhsh and Khuda Bakhsh to the place of occurrence who came there empty-handed and armed with a rota respectively. Imam Bakhsh appellant's wife Mst. Kalsoom Mai complained to the appellant as to why her brother-in-law had been murdered by the appellant when the appellant owed to him the money demanded by him. Upon that intervention of Mst. Kalsoom Mai Imam Bakhsh appellant and his relatives Muhammad Bakhsh and Khuda Bakhsh flared up and reprimanded her for interfering in their matter despite being a woman. Muhammad Bakhsh then raised a Lalkara that even Mst. Kalsoom Mai should not be spared. Thereafter, Khuda Bakhsh gave her two Sota blows which landed on the left side of the head of Mst. Kalsoom Mai.
Imam Bakhsh fired at her hitting at her front chest. After receipt of those injuries Mst. Kalsoom Mai fell down. In that fallen state Mst. Kalsoom Mai was given repeated blows of the butt of his gun by '
Imam Bakhsh appellant. Mst. Kalsoom Mai died at the spot. The complainant and his companions tried to intervene but they were threatened by the assailants and warned of similar treatment by Imam Bakhsh appellant. The complainant and his companions, therefore, did not go near the two deceased on account of fear. Imam Bakhsh appellant then fled away from the place of occurrence with his gun. Leaving Ahmad Yar and Ghulam Qadir P.Ws. At the spot to guard the dead body.
Karim Bakhsh complainant then proceeded to report the matter to the police.
3. Upon the statement of Karim Bakhsh complainant in respect of that incident F.I.R. No,233 was registered at 7-50 a.m. On the next morning, i,e,, 21-8-1994 at Polke Station Shah Jamal, District Muzaffargarh by Asmatullah, S.I. (P.W.7) for offences under section 302/34, P.P.C.
4. After recording the F.I.R. Asmatullah, S.I. (P.W.7) took up the investigation of this case, went to the place of occurrence, prepared injury statements and the inquest reports in respect of the dead bodies of Noor Muhammad and Mst. Kalsoom Mai and dispatched the dead bodies to the mortuary for autopsy. He then inspected the place of occurrence, prepared a rough site-plan of the same and collected blood-stained earth from the places where the dead bodies were lying.
5. The post-mortem Examination of the dead body of Noor Muhammad was conducted by Dr. Asif Saleem (P.W.8) at 9-15 a.m. On 22-8-1994. He found 3 injuries on the dead body which were all antemortem. All the injuries were caused by firearm. According to the doctor death was caused by severe haemorrhage and shock due to injuries to vital organs by injuries Nos.1 to 3 which were fatal and grievous and were individually as well as collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be within 24 to 36 hours.
6. The post-mortem Examination of the dead body of Mst. Kalsoom Mai was conducted by the same doctor at 9-45 a.m. On the same day. He found 8 injuries on the dead body which were all antemortem. Injuries Nos.1 to 6 were caused by blunt weapon whereas injuries Nos.7 and 8 were caused by firearm. According to the doctor, death was caused by severe haemorrhage and shock due to injuries Nos.1 to 8 which were fatal and grievous and were individually as well as collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be within 24 to 36 hours.
7. After the post-mortem Examinations of the two dead bodies on 22-8-1994 Asmatullah, S.I. (P.W.7), the Investigating Officer, took into possession the last-worm clothes of the two deceased. The investigation of this case was then entrusted to Barkhurdar Ahmad, Inspector/S.H.O. (P.W.9) who arrested Imam Bakhsh appellant and his two co-accused on 29-8-1994. Thereafter, the investigation was again transferred to Asmatullah, S.I.' (P.W.7). On 11-9-1994 he recovered a gun from Imam Baldish appellant and a Seta from Khuda Bakhsh accused. Subsequently he got a site- plan of the place of occurrence prepared by a revenue Patwari. He then completed the other formalities, finalized his investigation and submitted a challan in 1'z-spec% of this case.
8. At the commencement of the trial the learned Trial Court framed a Charge with two heads under sections 302 and 302/34, P.P.C., against all the three accused persons to which they pleaded not guilty and claimed a trial.
9. During the trial the prosecution produced as many as nine witnesses it support of its case against the accused persons. Karim Bakhsh, complainant (P.W.4`, and Ghulam Qadir (P.W.5) furnished that ocular account of the incident. Karim Bakhsh complainant (P.W.4) also deposed about that motive. Asmatullah, S.I. (P.W.7) stated about the recoveries of weapons of offend affected from the accused persons. Dr. Asil Saleem (P.W.8) provided the medical evidence.
Asmatullah, S.I. (P.W.7) and Barkhurdar Ahmad, Inspector/SHO (P.W.9) stated about various steps taken by then during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In their statements recorded under section 342, Cr.P.C., all the accused persons denied and controverted all the allegations 431 fact levelled against them by the prosecution and professed their innocence. Imam Bakhsh appellant maintained that the prosecution witnesses were related inter se, they were residents of a place about seven miles away from the place of occurrence and they had a motive to falsely implicate him in this case While answering a question Imam Bakhsh appellant stated as follows: "None of the P. Ws. Was present a the spot. On the night of 20-8-1994 at 8-00 p.m. I had gone to attend the funfair of Eunuchs at the bridge c Ahmad Mohana along with m licensed Gun. 'The funfair was still going on and the Loudspeaker was also functioning but I came back to my house at about 1-30 or 2-00 am in the night. The night was moonlight When I reached my house, I saw Noor Muhammad deceased and wife Mst. Kalsoom Mai deceased a compromising position. No Muhammad was entirely naked, his chadar was removed and he was not wearing any turban, shirt or shoes. On seeing both the deceased in compromising position, I got infuriated, I fired at Noor Muhammad and Mst. Kalsoom Mai with my licensed Gun. I flew into a rage at my wife, hence I beat her with the butt of my Gun which was broken and then I picked up Soti and started beating my wife Mst. Kalsoom Mai. Meanwhile, my paternal uncle Khuda Bakhsh was also attracted there, empty handed, on hearing the Gun fire, at that time I was beating Mst. Kalsoom Mai with the stick which was snatched by Khuda Bakhsh. Thereafter, my brother Muhammad Bakhsh reached empty handed. Khuda Bakhsh and Muhammad Bakhsh, co-accused, have no concern with this occurrence and they are innocent. I alone killed both the deceased in a grave and sudden provocation. The prosecution story is false. Then I sent Muhammad Bakhsh co-accused at the police station immediately; whereas, I myself, co-accused Khuda Bakhsh and other villagers, who had turned up on hearing the gun fire, remained at the spot. The police did not take any steps on the statement of Muhammad Bakhsh and made him sitting at the police station. The police reached the spot in the morning along with Muhammad Bakhsh. The police then concocted the false story and manoeuvred the false evidence of Karim Bakhsh and Ghulam Qadir. We have been falsely implicated in this case. The police has suppressed the real story and has lodged the F.I R., concocting false story. When the police reached the spot I and Khuda Bakhsh co-accused were present there and all the accused joined the police investigation. The police took me and my co- accused with them but I do not know when our arrest was shown in the papers. The version of the police that we were arrested subsequently, is totally false."
' Imam Bakhsh appellant and Khuda Bakhsh accused also made statements on oath under section 340(2), Cr.P.C., as D.W.1 and D.W.2 respectively. However, none of the accused persons produced any other witness in their defence.
11. At the conclusion of the trial, as mentioned above, the learned Sessions Judge, Muzaffargarh convicted and sentenced Imam Bakhsh appellant as noticed above while his two co-accused were acquitted. Hence, the present appeals and the connected Murder Reference both this Court.
12. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General representing the State and have also gone through the record of this case with their assistance.
13. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has further argued that the eye- witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. According to the learned counsel for the appellant the version put forth by the appellant was more plausible and the same, therefore, merited to be accepted. As against that the learned Assistant Advocate-General has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence.
14. After hearing the learned counsel for the parties and going through the record it has been noticed by us that the appellant had admitted killing the two deceased and that, broadly speaking, the time of occurrence, the place of occurrence and the weapons used in the occurrence were not in dispute between the parties to this case. However, the circumstances wherein the said killings had taken place were seriously disputed between them. Putting the prosecution and the defence versions in juxtaposition we have found that the version put forth by the appellant appeared to be nearer the truth and merited acceptance.
15. Karim Bakhsh complainant (P.W.4) was a brother-in-law of Noor Muhammad deceased and admittedly a chance witness of the occurrence. He admittedly lived 5/6 miles away from the place of occurrence. In the F.I.R. He had failed to give any explanation whatsoever for his visit to the house of Noor Muhammad deceased so as to lend credibility to his claim of visiting the house of Imam Bakhsh appellant with the said deceased subsequently. Even at the trial he had completely failed to furnish any explanation, not to talk of a plausible explanation, in that regard. Visiting a relative living 5/6 miles away from one's home may not be an abnormal phenomenon but being with him at 11-00 p.m in another village surely called for an explanation. In the absence of any explanation regarding his claimed presence at a particular place where he was ordinarily not expected to be present makes the statement of such a chance witness unreliable on a capital charge. Ghulam Qadir (P.W.5) was also a brother-in-law of Noor Muhammad deceased. Although he was a resident of the village where the occurrence had taken place yet he has also failed to inspire our confidence. He was admittedly not present with Noor Muhammad deceased at the latter's house before the occurrence and had not accompanied the said deceased to the house of Imam Bakhsh appellant. His being attracted to the place of occurrence at the inception of the quarrel between Noor Muhammad deceased and Imam Bakhsh appellant even before the first shot had been fired is a claim which can be accepted only with a lump of salt. The prosecution has required the Court to believe its version of the incident which 14. w is, coincidentally, witnessed by two theirs-in-law of Noor Muhammad deceased, one of whom did not even live in that village and the other was not even with the said deceased at the beginning of the incident! It is true that coincidences do happen in life but for believing them in a case involving a capital charge they must inspire fullest confidence of the Court. In the peculiar circumstances of this case we have no hesitation in observing that both the eye- A witnesses produced by the prosecution have failed to inspire our confidence. In this context how can we ignore the fact that both the said eye-witnesses had not been believed even by the learned Trial Court qua participation of the appellant's co-accused Muhammad Bakhsh and Khuda Bakhsh in the occurrence in question despite the said witnesses' claim that Khuda Bakhsh accused had repeatedly caused Sota blows on the head of Mst. Kalsoom Mai deceased. The acquittal of the said co-accused recorded by the learned Trial Court has not been challenged before us either by the complainant or by the State. Delayed lodging of the F.I.R., is also a circumstance which hints at the absence of the said witnesses at the time of occurrence and supports the argument that the said witnesses were procured and planted subsequently.
16. The prosecution story has, even otherwise, appeared to us to be unreasonable and, thus, unbelievable. People normally do not go to others' house at 10/11-00 p.m. For demanding return of money, and that too in the villages. Apart from that Noor Muhammad deceased was a brother-in- law (hum-zulf) of Imam Bakhsh appellant and such a reaction over such a sensitively related person's legitimate demand is not to be ordinarily expected in our society. Multiplicity of such extraordinary happenings alleged by the prosecution has also contributed towards shaking of our confidence in its version.
17. We have also noticed with care that the prosecution had failed to set up any ongoing motive against Imam Bakhsh appellant. Even the prosecution case is that the incident in question was a result of a sudden flare up after Noor Muhammad deceased had himself gone to the house of the appellant. Apart from that we have also noticed that the alleged borrowing of money by Imam Bakhsh appellant from Noor Muhammad deceased or the previous demands of the deceased from the appellant regarding return of the said money were never proved by the prosecution through any evidence whatsoever. Karim Bakhsh complainant was the only witness who had stated about the said borrowing but even he had stated that the said borrowing of money did not take place in his presence. He had also admitted, and the same was confirmed by the Investigating Officer (P.W.7), that during the investigation of this case the alleged borrowing or any dispute over the same was never probed into. Thus, it can safely be concluded by us that the prosecution had completely failed to establish that Imam Bakhsh appellant had any motive at all to murder his own brother-in-law.
18. The medical evidence and the evidence regarding recovery of a gun from the appellant during the investigation of this case do not advance the case of the prosecution in any -manner as the causing of injuries to both the deceased with his licensed gun had been admitted by the appellant in so many words. The said pieces evidence produced by the prosecution were not in any manner of evidence destructive of the defence version. In fact with the acquittal of Khuda Bakhsh accused by the learned Trial Court the injuries to Mst. Kalsoom Mai deceased attributed by the prosecution to him remained unexplained and went on to support the defence version.
19. This brings us to the version of the incident put forward by Imam Bakhsh appellant in his statements recorded under sections 342 and 340(2), Cr.P.C. In this context we have noticed the following factors available on the record which have a direct bearing on the issue:
(a) Imam Bakhsh appellant was aged 65 years, his wife Mst. Kalsoom Mai deceased was aged 28/29 years and Noor Muhammad deceased was aged 33/34 years. Thus, chances of the young wife being dissatisfied with her old husband and going astray with her brother-in-law were not extraordinary or unbelievable.
(b) Noor Muhammad deceased was a brother-in-law (Behnoi) of Mst. Kalsoom Mai deceased and, therefore, he had an easy access to the appellant's house.
(c) The complainant had admitted that Noor Muhammad deceased's house was only 2 'Canals away from the house of the appellant and Mst. Kalsoom Mai deceased and that there was no other house in between their houses. Thus, an access between them was facilitated by proximity of their houses.
(d) Both the eye-witnesses produced by the prosecution and admitted that the night of occurrence was a dark night.
(e) Sajid Pervaiz, Constable (P.W.2) had stated that the dead body of Noor Muhammad deceased was naked. Ghulam Qadir (P.W.5) had stated that they had brought clothes from the market so as to cover the two dead bodies. The Investigating Officer (P.W.7) had stated that Noor Muhammad deceased was wearing a chadar only with no shirt or shoes.
(t) The Report of the Chemical Examiner regarding Mst. Kalsoom Mai's vaginal swabs had been withheld by the prosecution.
(g) The appellant had not just fired at his wife from his gun but had also given her severe butt blows. The butt of the gun was used so ferociously that the same was broken. Such an unusual conduct of the appellant could not be a result of a mere verbal reprimand by the deceased as alleged by the prosecution.
(h) The large number of very serious injuries (breaking of skull bone and coming out of brain matter from more than one places of the head) caused by the appellant to his wife Mst. Kalsoom Mai deceased showed extreme provocation received by the appellant at her hands.
(i) The killing of Noor Muhammad deceased first through a solitary fire-shot and then killing of Mst.
Kalsoom Mai deceased through a fire-shot as well as ferocious beating with the butt of the gun as well as a stick by the appellant shows that he was mainly angered by the conduct of his wife. This was possible only if the defence plea was correct.
(j) Alleged joining in of the relatives of the appellant in causing injuries to Mst. Kalsoom Mai deceased showed disgrace and dishonour brought by her to the whole family by her conduct. The other relatives could not think of hitting her if it was just a matter of a verbal reprimand by her to her husband.
(k) It is the prosecution's own case that it were Noor Muhammad deceased's relatives who had stood guard at the dead bodies of the two deceased when the complainant had gone to the police station to lodge the F.I.R., went with the dead bodies to the hospital, identified the dead bodies at the time of their postmortem examinations, brought the dead bodies back after the autopsy and produced the last-worn clothes of both the deceased before the Investigating Officer. Had it not been a case of murders committed under grave and sudden provocation and bringing dishonour to the appellant's family by his wife there was no reason why the dead body of the appellant's wife should not have been handled by the immediate family of the appellant himself. This conduct of the appellant's immediate family shows that they had virtually disowned the appellant's wife and her dead body because of what she had done.
(1) Sajid Pervaiz, Constable (P.W.2) had stated that Imam Bakhsh appellant was very much available in his own house and was not arrested by the police when it had visited his house on the evening after the night of occurrence. He could be present in his house and still not arrested by the police only if the police also knew that he had committed the murders on account of grave and sudden provocation. Thus, initially even the police appeared to have appreciated and sympathized with his cause.
(m) The F.I.R., in this case was lodged in the next morning and not during the night of occurrence despite the fact that the complainant had allegedly gone to the police station during the same night. This showed deliberations and fabrication of an untrue story on the part of the complainant and the police.
(n) The post-mortem examinations of the two dead bodies were conducted not on the next day but on the second day of the occurrence.
(o) The appellant had maintained his plea of grave and sudden provocation not only in his statement recorded under section 342, Cr.P.C. And the suggestions to the prosecution witnesses but he had also made a statement on oath under section 340(2), Cr.P.C., in that regard.
(p) Both the Investigating Officers produced by the prosecution had admitted that the first plea of the appellant at the time of his arrest was the one taken by him at the trial.
' After a careful scrutiny of all these factors available on the record we are of the view that the appellant's version of the incident could reasonably be true. As a matter of fact his version appears to be more plausible and thus, acceptable.
20. For what has been observed above these appeals are hereby partly allowed, the convictions and sentences of the appellant recorded by the learned Sessions Judge, Muzaffargarh on 22-7- 1996 on both the counts of section 302(a), P.P.C., are set aside and the same are substituted by convictions for an offence under section 302(c), P.P.C., on both the counts and sentences of seven years' R.I. On both the counts. Both the sentences shall run concurrently and he shall also be extended the benefit under section 382-B, Cr.P.C. As the deceased were done to death while caught in an immoral act, therefore, we are not inclined to, order payment of compensation of the appellant to the heirs of the deceased.
21. As both the sentences of death passed against Imam Bakhsh appellant by the learned Trial Court have been set aside by us, therefore, Murder Reference No,221 of 1996 is hereby answered in the negative.
Death sentences are not confirmed.