RIAZ KAYANI, J. Muhammad Usman son of Sher Muhammad, Abdul Rehman son of Suleman, Muhammad Luqman son of Muhammad Ramzan, Khalid son of Muhammad Tufail and Muhammad Yousaf son of Din Muhammad have through this appeal assailed the validity of the judgment, dated 17-9-1995 passed by the Additional Sessions Judge, Chiniot whereby all of them were convicted under section 302/149, P.P.C. For Qatle-Amd of Muhammad Aslam and Mst. Razia and each one of them was sentenced to death on two counts. All the appellants were also sentenced under section 148, P.P.C. To undergo two years' R.I. Each. Sentence of death awarded to the appellants was subject to confirmation by this Court under section 374, Cr.P.C.
2. Sher Muhammad complainant has filed a revision against the order of acquittal of Muhammad Haroon which has been impugned in the present petition. We intend to deal with all these matters through this single judgment.
3. The occurrence which resulted in the double murder of Muhamme Aslam and Razia Bibi took place on the night of 11th October, 1992 at 10/11 p.m. In the house of Muhammad Ismail husband of Mst. Razia situated Chak No,151/J.B. 20 miles from Police Station Saddar, Chiniot, Jhang. The complaint was made by Sher Muhammad son of Rehmatullah closely related to deceased Muhammad Aslam and was recorded by Saeed Akhtar, S.H.O. At the police station on 11-10-1992 at 6-05 a.m.
4. The prosecution version succinctly described in the complaint, authored by Sher Muhammad, is that he alongwith Muhammad Iqbal son of Muhammad and Muhammad Eisa his brother were present in the house of Muhammad Hussain when at 10/11 p.m. Muhammad Aslam alias Bhola son of Muhammad Hussain was coming back to his house from his lands and had hardly reached the door of his house when all of sudden Muhammad Haroon armed with .12 bore gun, Muhammad Yaqoob armed with Sota, Khalid armed with Khanjar, Abdul Rehman, Usman and Laqman all armed with Sotas and Muhammad Yousaf empty-handed residents of the village who were all standing at the door of Muhammad Ismail son of Muhammad Ibrahim encountered Muhammad Aslam. Muhammad Yousaf took Aslam in his fold, picked him up from the ground and started taking him towards the house of Ismail. On the hue and cry raised by Muhammad Aslam, he alongwith Eisa were attracted and started going after the accused but due to threats meted out by Haroon and others that if they come near they would be killed; they stood in the lane whereas Muhammad Aslam was taken inside the house of Ismail and they saw from the door of the house of Ismail that Haroon fired with his .12 bore gun which hit Aslam on the left side of his knee from the back. Simultaneously, Khalid gave repeated blows with his Khanjar on the abdomen, right finger, left hand at the knee joint and left shin. Muhammad Usman and Muhammad Laqman kept on raising Lalkaras that if anybody comes near them he would be murdered. Muhammad Aslam succumbed to his injuries at the spot. The accused thereafter dragged the dead body of Muhammad Aslam inside the room. Yaqoob and Usman exhorted their companions that Razia Bibi should be brought and murdered and the dead bodies should be kept in one room upon which Haroon, Abdul Rehman and Yousaf ran towards the room where Mst. Razia Bibi was present and forcibly dragged her out whereby Yaqoob and Abdul Rahman caught hold of her and Khalid gave her repeated blows with his Khanjar striking on her abdomen and other parts of the body killing her at the spot. The dead body of Razia was dragged and kept in the same room where already the dead body of Aslam was lying. He alongwith Eisa saw the occurrence who the light of an electric bulb. On their hue and cry lot of persons who were residents of the village gathered but Haroon resorted to aerial firing and dispersed all of them. Murders were committed it was submitted at the behest of Muhammad Shafi son of Noor Muhammad.
5. Motive for the occurrence is that Luqman and others were suspicious that Mst. Razia Bibi and Muhammad Aslam had illicit connections and for this reason all the accused in furtherance of their common object caused death of Muhammad Aslam and Mst. Razia Bibi. Dead bodies of Aslam and Razia Bibi are lying in the room inside the house of Muhammad Ismail.
6. Saeed Akhtar, Investigating Officer P.W.11 after recording the complaint left for the place of occurrence and prepared the inquest reports Exh.P.D./II and Exh.P.D./III whereafter the dead bodies were sent to the Tehsil Headquarters Hospital, Chiniot for post-mortem examination. Bloodstained earth from the place where Aslam was murdered was taken in possession vide memo. Exh.P.F. And earth from the place where Razia Bibi was murdered was also taken in possession vide memo.
Exh.P.G. Statements of the witnesses were recorded under section 161, Cr.P.C. On 15-10-1992 all the accused were arrested and on 26-10-1992 Khalid got recovered bloodstained dagger P.7 which was taken in possession vide memo. Exh.P.N. Haroon on 27-10-1992 got recovered gun P.6 from his residential room which was without licence and was secured vide memo. Exh.P.J. On the same day Usman got recovered Sota which was taken in possession vide memo. Exh.P.A. Abdul Rahman got recovered Sota vide memo. Exh.P.L. Similarly, Luqman got recovered Sota which was secured vide memo. Exh. P.M.
7. Dr. Altaf Hussain, Medical Officer, Tehsil Headquarters Chiniot appeared as P.W.3 and stated that on 11-10-1992 he performed the postmortem examination on the dead body of Muhammad Aslam aged 25 years and found the following injuries:-
(1) Stab wound 3 c.m. x 1 c.m. On front of abdomen in right hypochondrium.
(2) Stab wound 6 c.m. x 3 c.m. On front of abdomen wound is 5 c.m. To the right of umblicus.
(3) Incised wound 3-1/2 c.m. x 1/2 c.m. On front of lower part of left upper arm towards inner side.
Wound is 2 c.m. Above the elbow joint.
(4) Incised wound 3 x 2 c.m. On the back of middle part of left forearm.
(5) Incised wound 3 x 1 c.m. On the back and outer aspect of right index finger.
(6) Lacerated wound 5 x 5 c.m. With inverted margins on medial aspect of left knee joint.
Blackening was present. It is wound of entry.
(7) Lacerated wound 12 x 6 c.m. On the back of left knee joint, joint cavity open, muscle, blood vessel cut. Margins everted. It is wound of exit.
In the opinion of the doctor death was result of haemorrhage, shock and injury to vital organs under injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature.
Injuries Nos.6 and 7 were grievous. Rests of the injuries were simple. Injuries Nos.1, 2,3 , 4 and 5 were caused by sharp-edged weapon whereas injuries Nos.6 and 7 by fire-arm weapons. All^ the injuries were ante-mortem. Duration between injuries and death was immediate and between death and post-mortem about 18 hours. There were cuts on Qameez and Bunian which were signed by him,
8. On the same day post-mortem examination on the dead body of Mst. Razia, aged 35 years was also conducted. The doctor found the following injuries on her person:--
(1) Incised wound 4 x 3 c.m. In front and top of head bone deep.
(2) Incised wound 2-1/2 c.m. x 1 c.m. On back of lower part on right upper arm skin deep.
(3) Incised wound 3 c.m. x 1 c.m. On the back of upper part of right fore-arm, below 4 c.m. Of elbow joint.
(4) Incised wound 2-1/2 c.m. On the palmer surfaces of right hand in between thumb and index finger, it is muscle deep.
(5) Incised wound 3 x 1 c.m. On back of left elbow joint.
(6) Incised wound 1-1/2 c.m. x 1 c.m. On the lateral aspect of right breast, 6 c.m. Away and below of nipple.
(7) Stab wound 3 x 1 c.m. In right hypochondrium.
(8) Stab wound 2-1/2 x 1 c.m. In epeigastrin.
' In the opinion of the doctor death was caused due to haemorrhage, shock and injuries to vital organs by injuries Nos.7 and 8 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp weapon and were ante-mortem. Injuries Nos.1 to 6 were simple. Probable duration between injuries and death was immediate and between death and post-mortem about 19 hours.
9. Doctor also took vaginal swa bs of Razia and sent the same to the Chemical Examiner for opinion.
The report of the Chemical Examiner Exh.P.O. Indicated that vaginal swabs, three in number, were stained with semen.
10. After submission of the challan appellants were indicated, they denied the charge and pleaded not guilty. During the examination the prosecution examined as many as 11 witnesses. The ocular testimony account was furnished by Sher Muhammad P.W.9 and Eisa P.W.10.
11. Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.P. Which concluded that Khanjar recovered at the instance of Khalid was stained with blood and report of the Serologist Exh.P.O./1 further proved that the blood was of human origin.
12. All the appellants when examined under section 342, Cr.P.C. Denied their participation in the occurrence as well as recovery of weapons from them and stated that the case against them was false and the P.Ws. Gave evidence because of enmity.
13. Learned counsel appearing for the appellants vehemently contested the ocular testimony and submitted that both the eye-witnesses were chance witnesses and no reason whatsoever acceptable to a prudent mind was given showing their presence at the spot when the occurrence took place. A feeble attempt was made to argue in the alternative that both the deceased were done to death as they were seen in a compromising position. Conversely, counsel for the complainant argued that no relationship on record was brought between Mst. Razia and the appellants to show that there was relationship by blood or contract so as to provoke them to kill both of them after seeing them in pario-delicto, and that there was no reason for the witnesses to falsely implicate them in the present case.
14. We have given our anxious consideration to the whole case by attending to the arguments of the respective counsel and perusing the record. The plea of grave and sudden provocation is only available to a person who happens to be related to the lady with whom love-making is being made, as relationship either by blood or contract can only deprive a person of his power of self- control in such a situation and under the influence of his impulse he can be driven to the extreme end of causing death of both the lady and her paramour. It is only in this eventuality that punishment is awarded under section 302(c), P.P.C. Persons not connected or related with the lady cannot be given benefit of this plea because that would entail extreme dangerous ramifications. A lover will have a licence to kill his beloved in case she is seen with a new and changed paramour.
In the instant case except for Luqman who happens to be the nephew of Ismail husband of Mst.
Razia no other accused is shown to be related to Mst. Razia. Further nothing has come on record to show any relationship of Luqman either with the remaining appellants or with the acquitted accused Haroon. Luqman has not been attributed any role except for being present at the spot rather we have in evidence that Khalid was hired as an assassin to kill both the deceased. None of the appellants in their statements under section 342, Cr.P.C. Has taken the plea that they lost their power of self-control by grave and sudden provocation and whilst deprived of their feelings they committed the double murder. Though a brittle attempt has been made by suggesting in cross- examination to the witnesses that the killing was committed when the deceased was seen in compromising position but for reasons referred to above benefit of such plea cannot be extended.
15. Coming to the merits of the case, the occurrence is said to have taken place at 10/11 p.m. In the month of September. The ocular testimony account has been furnished by Sher Muhammad P.W.9 who also happens to be complainant and brother of Eisa. Sher Muhammad although is resident of the same village but admits that his house is at a distance of 2-1/2 Killas from the house of Muhammad Hussain where he happened to be present at the time of occurrence. The reason for his presence at the house of Muhammad Husain is that he works with Iqbal at his fertilizer shop and due to settlement of accounts with Iqbal a dispute had arisen which was to be settled at the house of Muhammad Hussain and he was present in the house in this connection. He admits that he or his brother Eisa had no share of fertilizer business with Iqbal neither he remembers how many bags of fertilizer were purchased from Iqbal for which the accounts was to be settled. He also is unaware as to when he obtained fertilizer bags from Iqbal and whether he paid any cash to him by himself or through Eisa. Register where such accounts were written was with Iqbal but could not be produced. Similarly, Eisa P.W.10 admitted that he was an Inspector in the WAPDA Department and on the day of occurrence although he was not on leave yet he remained absent from his duty and came to his village to settle the accounts with Iqbal regarding fertilizer and subsequently he made an application in his office and got the leave sanctioned. His village, according to him, was 17 miles away from Faisalabad. The discussion would lead us to the conclusion that the presence of these two witnesses at the house of Muhammad Hussain, where they claimed to have seen the occurrence, becomes highly doubtful. Both of them are closely related to the deceased and the house where they were stated to be present at the time of occurrence belongs to Muhammad Hussain father of the deceased. Undoubtedly, no enmity has been brought on record between, these two witnesses and the appellants, but their presence being doubtful their testimony does not inspire confidence and it seems that in order to claim to have seen the occurrence they have shown their presence in the house of Muhammad Hussain. Their inactivity to save Aslam from being dragged in the street towards the house of Ismail or at least an attempt to raise hue and cry so as to attract the inhabitants of the locality has further cemented our doubt that these two witnesses were not present when the occurrence took place. Their statement that while standing in the door of the house of Ismail they saw the occurrence in the light of an electric bulb is further belied by the absence of any such bulb being indicated in the site-plan.
16. Investigating Officer Saeed Akhtar, Inspector while appearing as P.W.11 admitted that he did not see any broken door of the house of Ismail where the occurrence took place and also did not notice any sign of dragging from the spot of murder to the room where the dead bodies were lying and no sign of struggle was either shown to him or noted by him from where Aslam was lifted and taken to the house of Ismail. He admits that Sher Muhammad and Eisa P. Ws. Did not disclose to him reasons of their presence in the house of Muhammad Hussain, when the occurrence took place and that no paper about settling of the disputed account regarding fertilizers between Iqbal and the witnesses was ever produced before him during the investigation. The Investigating Officer further belied the version of the eyewitnesses that Aslam was lifted from the street in front of his house and taken to the house of Ismail where he was murdered alongwith Mst. Razia because according to his investigation Aslam was not lifted, from, in front of the house of his father Muhammad Hussain and in fact Aslam and Razia were found in the house of Razia committing Zina when they were murdered in the room.
17. Upshot of the discussion leads us to the firm conclusion that the occurrence was not witnessed by anyone. However, one thing has become clear that both the deceased were found in compromising position as authenticated by report of the Chemical Examiner Exh.P.Q. Who found the three vaginal swa bs taken from the vagina of Mst. Razia to be stained with semen. Her husband Ismail, as it has come in evidence worked at Faisalabad and was not present when the occurrence took place. This fortifies the stark fact that both the deceased were done to death in the room of the house belonging to Ismail. Who was responsible for causing death has not been proved by the prosecution. Therefore, extending benefit of doubt in favour of the appellants we accept their appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 17-9-1995. The appellants shall be set free if not required in any other case. Murder Reference is answered in the negative and death sentence imposed upon Muhammad Usman, Abdur Rehman, Muhammad Luqman, Khalid and Muhammad Yousaf is not confirmed.
18. Criminal revision against the order of acquittal is not maintainable. We would have converted it into an appeal had it not been barred by 1 year and 1 month. Therefore, the same stands dismissed.