' This judgment will dispose of Criminal Appeal No,63 of 1996 filed by Ghulam Hussain Alias Kala, who was convicted and sentenced by learned Additional Sessions Judge, Bahawalpur on 9-6-1996 under section 302(b), P.P.C., to undergo life-imprisonment as "Tazeer".
2. The occurrence in this case took place in the area of Chak No,4/DNB at a distance of four k.Ms. Away from Police Station, Head Rajkan at 12-15 mid night on 11-5-1994 and the matter was reported by Fida Hussain complainant P.W.8 at 4-00 a.m. Early in the morning on the same day, while the formal F.I.R., Exh.P.G. Was recorded by Khan Muhammad S.I./S.H.O., on the same day.
3. According to the F.I.R., Exh.P.G. The facts of the prosecution case as narrated by Fida Hussain, complainant are that Ghulam Shabbir was his son and Ghulam Hussain alias Kala had promised to marry his daughter with him and he (Ghulam Shabbir) was living with him at the Dera of Abdullah.
Arain situated in Chak No,4/DNB. On the night of occurrence, he, his brother Talib Hussain and Fida Hussain s/o Karim Bakhsh went to see Ghulam Shabbir and about 12-15 a.m. (night) when reached nearby Dera of Abdullah and heard the cries of Ghulam Shabbir. They rushed to the Dera of Abdullah and in the light of torch they saw that Ghulam Hussain alias Kala was cutting throat of his son Ghulam Shabbir with churri and then he also cut the throat of his wife Mst. Mumtaz Mai alias Bhirawan whose hands and feet were tied. He threatened them with death and fled away alongwith churri from the spot. Both the injured died at the spot.
4. The motive behind the occurrence was stated that Ghulam Hussain alias Kala suspected illicit relations of Ghulam Shabbir with his wife Mst. Mumtaz Mai alias Bhirawan.
5. After the registration of case, Walayat Khan S.I. P.W.11 reached at the spot and prepared inquest reports Exh.P.F'. And Exh.P.D. Respectively. He took into possession blood-stained earth from underneath both the dead bodies and made the same into sealed parcels separately vide recovery memos Exh.P.H. And Exh.P.I. Respectively. He also took into possession torch P.7 vide recovery memo. Exh.P.J. From the place of occurrence. He also prepared rough site plan Exh.P.M. On 14-5-1994, he arrested Ghulam Hussain alias Kala, accused/appellant. On 15-5-1994, the appellant while in police custody led to the recovery of blood-stained churri Exh.P.8 at his instance from underneath the bush in the said dunes falling within the area of Chak No,4/DNB, which was taken into possession vide memo Exh.P.K. Investigating Officer also recovered blood-stained chadar Exh.P.9 and blood-stained shirt Exh.P.10 from the appellant and took the same into possession vide recovery memo. Exh.P.L. He also prepared site plan of the place of recovery of Churri Exh.P.N. And that of clothes of the appellants Exh.P.O.
6. Prosecution in order to prove its case produced 11 witnesses in all, thereafter, the learned D.D.A.
Has tendered in evidence the report of Chemical Examiner Exh.P.P., Serologist Exh.P.Q. Regarding blood-stained earth, Chemical Examiner's report Exh.P.R., and Serologist Exh.Police Station regarding Churri, report of Chemical Examiner Exh.P.T. And that of Serologist Exh.P.U. Regarding clothes of the appellant and report of Chemical Examiner Exh.P.V. Regarding penis swabs and the report of Chemical Examiner Exh.P regarding vaginal swabs and then the statement of the appellant was recorded under section 342, Cr.P.C., in which, he had denied to have taken apart in the occurrence.
7. Learned counsel for the appellant., who has been appointed at State expense to defend the appellant submits that presence of both the eye-witnesses namely Fida Hussain P.W.8 and Talib Hussain P.W.9, father and real uncle of the deceased is not believable because they are not resident of place of occurrence. He further submits that for the just. Decision of the case, statement of Dr.Shaukat Ali Bajwa, P.W.7, who had conducted the post-mortem examination on the dead bodies of both the deceased namely Ghulam Shabbir and Mst. Mumtaz Mai is very essential because swa bs were taken from the vagina of Mst. Mumtaz Mai and also from the penis of Ghulam Shabbir and according to the reports of Chemical Examiner both were stained with semens. Further submits that though the plea of grave and sudden provocation has not been taken by the appellant but this Court can take notice of the fact as borne out from the medical evidence.
8. On the other hand, learned A.A.-G. Submits that the appellant is an only accused in this case, that it is a settled law that substitution is a rare phenomena, that appellant has committed the murder of two innocent persons, that he was named in the promptly lodged F.I.R., that he was also named by the P. Ws. Before the learned Trial Court, that there was no previous background of enmity between complainant and the present appellant, so in the above said circumstances, the conviction and sentence awarded to the appellant by the learned Trial Court be maintained.
9. 1 have heard the learned counsel for the parties and have also gone through the prosecution evidence with their assistance. In the instant case, both the eye-witnesses namely Fida Hussain P.W.8 and Talib Hussain P.W.9 are father and real uncle of the deceased Ghulam Shabbir respectively. They had no business to be present at the spot at the time of occurrence because they are not resident of place of occurrence. They are living 15/16 k.Ms. Away from the place of occurrence.
10. For the just decision of the case, the statement of Dr. Shaukat Ali Bajwa, P.W.7 is very essential, which is reproduced below.
' On 11-5-1994, I was posted as M.O. At R.H.C. Head Raikan. On the same day, I conducted the post- mortem on the dead body of Mumtaz Mai wife of Ghulam Hussain and Muhammad Abdullah son of Seraj Din Observations are as under:--- EXTERNAL APPEARANCE.
' A middle aged female was lying supine on mortuary table with open eyes and open mouth She had following injuries on her body: ' An incised wound measuring 11 c.m. x 5 c.m. x vertebra deep on front of neck. It has cutted Aorte, Trachea, esophagus with carotid vessels. The wound had caused excessive bleeding and stoppage of respiration and death.
' No injury was found on skull and vertebrae.
' Thorax..............................................................................
' Abdomen ' One external viginal swa b and one internal swab were taken and sent to Chemical Examiner.
Uteres was empty.
No injury to any bone and joint.
' After external and internal examination of the dead body, I was of the opinion that injury No,1 was the cause of death which caused severe bleeding and stoppage of respiration and this injury was antemortem. Duration between injury and death within five minutes and between death and post- mortem within 12 hours.
' On the same day, I conducted the post-mortem examination of Ghulam Shabbir son of Fida Hussain Observations are as under: EXTERNAL APPEARANCE...... He had following injuries on his body.
(1) An incised wound measuring 14 c.m. x 7 c.m. On the front and middle of neck. It had cutted Aorta, Trachea, esophagus, both carutid vessels spearing only vertebrea.
(2) Blisters were formed on both fore-arm near wrist joints.
' Thorax...................................................
' Abdomen..............................................
' One swa b from external genitalia was taken and sent to Chemical Examiner.
' No injury was found to bones and joints.
' After thorough external and internal examination of the dead body, I was of the opinion that injury No,1 was the cause of death which had caused excessive bleeding and stoppage of respiration and injury No,1 was the antemortem. Duration between injury and death within five minutes and between death and post-mortem within 12 hours.
11. After the perusal of the said statement and the reports of the Chemical Examiner as mentioned above it has been proved on record that the deceased Ghulam Shabbir had illicit relations with Mst.Mumtaz Mai, who was wife of the appellant and on that night Ghulam Shabbir son of the complainant come there to commit sexual intercourse with Mst. Mumtaz Mai and after seeing both of them in a compromising position, appellant committed this murder. Although the appellant did not say any such thing before the Trial Court in his statement recorded under section 342, Cr.P.C., but it is the duty of the Court to look into all the material which had been brought on record, specially the post-mortem reports of both the deceased. I am of the considered view, that appellant has committed the murder of his wife Mst. Mumtaz Mai and Ghulam Shabbir son of the complainant under grave and sudden provocation when he saw both of them while committing intercourse with each other. Appellant was arrested in this case on 14-5-1994 and since then he is behind the bars, so in this view of the matter, the conviction and sentence awarded to the appellant by the learned Trial Court under section 302(b), P.P.C., is converted under section 302(c), P.P.C., and the sentence which he has already undergone is treated to be sufficient to meet the ends of justice. . Appellant is behind the bars. He shall be released forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.