BASHIR A. MUJAHID, J.- This judgment will dispose of Criminal Appeal No. 1063/1996 and Criminal Revision No. 461/1996 as both are the outcome of one and the same judgment.
2. Khan Muhammad (75) alongwith acquitted co-accused Rab Nawaz, . Ghulam Jillani were tried by learned Sessions Judge, Khushab under Sections 302/34, PPC and was convicted and sentenced vide his judgment dated 23.11.1996, for 10 years' R.I. Under Section 302(c) and a fine of Rs.10,000/- and in default of payment of fine to further undergo R.I. For one year on each count for committing murder of Muhammad Ramazan and Mst. Kalsoom Bibi. Both the sentences were ordered to run concurrently.
3. Brief facts of the case are that F.I.R. No. 12, dated 1.3.1996 was got registered at the instance of Muhammad Khan PW-6 complainant stating therein that Kalsoom deceased was wife of Muhammad Afzal (son of the appellant) was putting up with the accused alongwith her children in mauza Jhugi Manda Dakhli Botala. Muhammad Afzal was in Army and in absence of Muhammad Afzal, Kalsoom had developed illicit relations with Muhammad Ramazan deceased on which the appellant and his close relations co-accused had a grudge against them. On 29.2.1996 at about 3 p.m. Acquitted co-accused Ghulam Jillani went to the dera of Muhammad Ramazan deceased where apart from Muhammad Ramazan deceased, his brother (complainant) Muhammad Khan, Muhammad Ramazan s/o Alam Sher and Ghaus Muhammad were present. Said Ghulam Jillani asked Muhammad Ramazan to accompany him for settlement of accounts. Muhammad Ramazan deceased showed his inability due to death of his brother-in-law but promised to come at night on which Ghulam Jillani asked him to come at the dera of accused Khan Muhammad, where he would wait alongwith Khan Muhammad, Rab Nawaz, Muhammad Matta and Muhammad Akhtar.
Muhammad Ramazan went to the dera of accused Khan Muhammad at about 9 p.m., where three accused alongwith Muhammad Matta and Muhammad Akhtar were present. Rab Nawaz and Ghulam Jillani accused were present with guns. Muhammad Matta and Muhammad Akhtar were armed with rifles while Khan Muhammad accused was armed with hatchet. Muhammad Ramazan PW-8, Muhammad Feroz PW-7 and Muhammad Sher PW-10 were returning home from the dera of one Khan Muhammad s/o Muhammad Sher who were coming towards their own dera. When Muhammad Ramazan deceased had reached the dera of Khan Muhammad accused, Muhammad Ramazan deceased was made to sit in a room. PWs Muhammad Feroz and Muhammad Sher saw the deceased entering into the room of Khan Muhammad, where Rab Nawaz and Ghulam Jillani find at deceased Muhammad Ramazan with their guns. Then they find at Mst.
Kalsoom who was already present in the said room. Khan Muhammad appellant who was armed with hatchet inflicted injuries on the persons of deceased Muhammad Ramazan and Mst. Kalsoom.
Both died at the spot. On their way to their houses the witnesses informed Muhammad Ramazan s/o Alam Sher about the incident. Said Muhammad Ramazan further informed Murid Hussain.
4. After registration of the case on the report of complainant Muhammad Khan, Ahmad Khan, SI/SHO PW-15 reached the place of occurrence, prepared the injury statements, site plan and inquest reports of both the dead-bodies. Bloodstained earth was collected from underneath both the dead-bodies. Three empty cartridges were also taken into possession from the spot. One lantern which was burning at the spot was also taken into possession. The dead-bodies were taken into possession and were despatched for post-mortem examination. Dr. Mahmood Akhtar PW-16 on 1.3.1996 conducted the post-mortem examination on the dead- body of Muhammad Ramazan and found the following injuries on his dead-body:--
(1) A circular ante-mortion fire-arm entry wound on the left temple 2x2 c.m. Edges blackened and burnt directed forward, upwards and rightwards.
(2) An oblique ante-mortem fire-arm lacerated wound 5" x 1.5" on the right cheek, exit of injury No.1 extending upto left side of nose upper lip on one side and upto right temple on the other side.
Cheek bone was fractured with brain matter coming out of the wound.
(3) An incised longitudinal ante-mortem wound 2.5 x 0.75" on the right side of fore head, bone unde meeth fractured with brain matter coming out of the wound.
(4) An incised wound 6x2 c.m. Or. The middle of head, bone unde meeth is fractured with brain matter coming out of bone.
(5) An antemortem fire-arm entry wound 3x3 c.m. On the right hypochondrium, 4 c.m. Below right nipple directed backwards, downwards and leftwards. Edges blackened and burnt.
(6) An ante-mortem fire-arm entry wound 3x3 c.m. On the left flank edges blackened and burnt omentum and intestine with faecal matter was coming out of the wound directed rightwards, forwards and upwards.
(7) an ante-mortem fire-arm exit wound 3x3 c.m. On the right flank directed leftwards, backwards and upwards. Edges blackened and burnt intestine was out of this wound.
(8) Four ante-mortem fire-arm exit wound on left side of middle of abdomen 1 x 0.75 c.m. Each, 3 c.m. Apart from each other, 5 c.m. Above and left to umbilicus in an area of about 6x5 c.m. (exit of injury No.6).
(9) A circular fire-arm exit wound 0.5 x 0.5 c.m. On the right side of back of lower chest (exit of injury No.5).
(10) An incised wound 4 x 3 c.m. On the back of base of right index finger and thumb bones under neeth clean cut and is almost completely amputated and was hanging down with wound.
(11) An ante-mortem fire-arm entry and exit wound 9x5 c.m. On the middle of front and inner side of right thigh into skin deep.
On 2.3.1996 the same Doctor conducted the post-mortem examination of the dead-body of Mst.
Kalsoom and found the following injuries on her dead-body :-
1. An ante-mortem fire-arm entry wound 3.5. x 3.5 c.m. On the left hypochondrium 6 c.m. Below left nipple, edged blackened and burnt directed backward, rightward and slightly downward.
2. An ante-mortem fire-arm entry wound 3.5 x 3.5 c.m. On the back of lower part of left side of chest directed forward upwards and slightly rightwards. Edges were blackened and burnt.
3. Ten fire-arm ante-mortem exit wound 0.5 x 0.5 c.m. Each in an area of about 14 x 12 c.m. On the left side of upper front of the chest.
4. Nine ante-mortem entry and exit wounds 0.5 x 0.5 c.m. Each in the front and inner side of middle left forearm in an area of about 7x6 c.m.
5. On 4.3.1996 all the accused except Ghulam Jillani were arrested by Ahmad Khan, SI PW-15. On 8.3.1996 while in police custody accused Rab Nawaz led to the recovery of 12 bore gun P-12 which was taken into possession vide recovery memo. Exh. P-8. Khan Muhammad led to the recovery of hatchet P-13 which was taken into possession vide recovery memo. Exh.PG. On 26.3.1996 Ghulam Jillani accused was arrested by Agha Hussain, ASI, PW-12 While in police custody on 29.3.1996 he led to the recovery of Gun P-14 which was taken into possession vide memo. Exh.PK. After completion of the investigation the I.O. Submitted the challan to the Court to face the trial. The accused denied the allegation and claimed the trial.
6. The prosecution examined as many as I6 witnesses in support of its case. PW-6 Muhammad Khan is the complainant who supported the story of the F.I.R, while PW-9 Muhammad Feroz and PW-10 Muhammad Sher are the eyewitnesses of the occurrence who have also supported the prosecution version. PW-9 Dost Muhammad attested the recovery of gun P-14 which was got recovered at the instance of Ghulam Jillani. Haji Noor Muhammad PW-5 attested the recovery memo. Exh.PG in which accused Rab Nawaz got recovered gun P-12. On the same day blood- stained hatchet P-13 was got recovered from Khan Muhammad accused which was attested by him vide memo. Exh.PH.
7. The accused persons were examined under Section 342, Cr.P.C. Appellant Khan Muhammad took specific plea while answering the question No.20 which is as under:- Since he was challanged for the murder of one Falak Sher, therefore, on account of fear, he used to sleep in the chobara of his co-accused Ghulam Jillani at his dera. During the night of occurrence at about mid night time. He went from the dera of his co-accused Ghulam Jillani to his dera to have a round. He was carrying hatchet P-13 with him. The door of the room of my house was found bolted from inside. He heard talks of a male and Mst. Kalsoom. He knocked the door of the room, It was opened by Kalsoom. When he was going to enter the room, he found that deceased Muhammad Ramazan was present there. He was hiding himself behind the plank of the door. He tried to run away from the room. He inflicted some hatchet blows on his person inside the kotha.
Muhammad Ramazan fell down on the cot. Mst. Kalsoom snatched my hatchet from him. The licenced gun of his son was hanging by the wall at that time. He picked up the same. After picking up the gun he find at Mst. Kalsoom as well as at deceased Muhammad Ramazan. Both of them died there. He had himself informed the complainant and after cooking up a false story, he and his co-accused were involved in this case. On the very next day of the occurrence, he had produced blood-stained hatchet P-13 and licenced gun of his son P- 12 before the police. It was on a grave and sudden provocation that he had caused injuries to both the deceased and he killed them. His co- accused had not participated in the occurrence.
8. Learned counsel for the appellant has 'argued that the learned Trial Court has dis-believed the eye-witnesses of the occurrence and also has not relied upon the witnesses of recovery and acquitted the co-accused Rab Nawaz and Ghulam Jillani. Khan Muhammad appellant has only been convicted on his own statement recorded under Section 342, Cr.P.C, and has been sentenced to 10 years' R.L It has been argued that the exception available in old law, of grave and sudden provocation now is available in the exceptions of Section 300, PPC. (In this regard he has referred to 1996 SCMR 274 relevant page is 290). The appellant has stated in his statement that he committed the murder of Muhammad Ramazan and Mst. Kalsoom under grave and sudden provocation as he lost control over himself while being both the deceased in compromising position in a room of his dera. Learned counsel has also referred the report of Chemical Examiner in which the swabs of Kalsoom were found stained with semens, when admittedly her husband was away from the home. The learned counsel has also argued that after dis-carding the evidence of prosecution, while convicting the accused on mere his statement under Section 342, Cr.P.C., the sentence is always awarded not more than 7 years but in the present case 10 years' R.I. Is top. Harsh, particularly keeping in view the age of the appellant who was 75 years old at the time of commission of offence. The learned counsel has referred to Munir Ahmad v. The State (1994 SCM R 80) and Maqsood Ahmad v. The State (1995 SCM R 359). In the earlier case the sentence of six years, already undergone by the appellant, was considered sufficient while in the later case sentence was reduced to 7 years, when the appellant was convicted mere on his own statement, after dis-believing the prosecution evidence. It is further argued that since it was immoral act of the deceased persons therefore, imposition of fine is not legal and proper.
9. Learned counsel for the complainant has opposed the acceptance of appeal and has argued that it is not the act of an old man of 75 years alone. The dead-bodies were found on separate cots. It is also admitted fact that gun was stated to be hanging on the will inside the room and Muhammad Ramazan being a young man could retaliate easily and with the help of Kalsoom could over power the old man if he would have been a single accused in the case. It has been maintained by him that circumstances show that the offence has not been committed in the manner as has been explained by the accused. The dead-bodies were found in a room of the accused appellant, therefore, it was for him to explain the death of the deceased persons. Learned State counsel has supported the impugned judgment.
10. I have considered the arguments of the learned counsel and have gone through the record.
11. It is not denied that Muhammad Afzal husband of Kalsoom was not at home when the offence was committed and the report of Chemical Examiner in which the swabs were found stained with semens clearly shows that Zina was committed prior to the occurrence. The testimony of the eye- witnesses has rightly been dis-carded by the learned Trial Court being un-natural witnesses. The conviction has been passed only on the statement of the accused who clearly admitted for causing the death of the deceased persons in the state of grave and sudden provocation. PW-6 who is the complainant does n6t claim to be the eyewitness of the occurrence while PW-7 and PW- 8 who claimed to be the eyewitnesses, their testimony do not inspire confidence as Muhammad Ramazan PW-5 stated that he was informed by Muhammad Feroz PW-7 and Muhammad Sher PW10 about the occurrence but they had not told the names of the eye-witnesses. The eye- witnesses have not been nominated in the F.I.R., therefore, the prosecution story appears to be concocted and after-thought. The prosecution has failed to prove its case on the basis of evidence. The conviction can be passed even on mere statement of the appellant. The impugned judgment does not suffer from any infirmity or lacuna calling for interference by this Court in appeal which is dismissed.
12. But following the principles laid down in 1994 SCM R 80 and 1995 SCM R 359 (supra) the sentence awarded to the appellant is reduced to 7 years' R.I. Since the cause of this incident was an immoral act, punishment of fine is set aside. The benefit of Section 382-B, Cr.P.C, will be available to the appellant.
13. The revision petition No. 461/96 is dismissed for above said reasons.