' Said son of Atta Muhammad has through this criminal appeal challenged the validity of the judgment dated 18th of August, 1999 passed by the Additional Sessions Judge, Jhang, whereby, he was convicted under section 302(c), P.P.C. For the murders of Tahir and Mst. Kaneez Fatima and was sentenced to 20 years' R.I. For each murder. Benefit of section 382-B, Cr.P.C. Was not extended.
2. Muhammad Akram, appellant has filed Criminal Revision bearing No,564 of 1999 for enhancement of sentence awarded to Said.
3. I intend to deal with both these matters through this single judgment.
4. The occurrence which resulted in the deaths of Kaneez Fatima and Tahir took place between the night of 12/13 of November, 1996 in the deserted Ihata situated in the vicinity of Chak No,144/JB, Tehsil Chiniot at a distance of 13 miles from the Police Station Chiniot. Complaint was made by M.
Akram, brother of Tahir deceased and was recorded by Muhammad Sadiq, P.W.7, S.H.O., at the police station.
5. Prosecution version disclosed in the First Information Report authored by Muhammad Akram is that his brother namely Tahir was an employee of Canal Department and posted at Bangalow Kot Wasawa. At about 10-30 p.m. He alongwith Ahmed acquitted accused, were coming from the said Bungalow towards their house to take evening meal when Tahir reached near the tubewell of one Sher Ali Shah, they found Said, Muhammad Khan and Mian Khan present through a pre-plan and conspiracy to murder his brother. On seeing his brother all of them got up and caught hold of his brother and threw him on the ground whereupon Said, appellant fired with his gun and injured him grievously. Azeem son of Muhammad Hussain, and Nazir Ahmad son of Allah Dad Khan alongwith himself reached the place of occurrence. Since Said was armed with a gun and threatened them that if they came near they would be killed, consequently they stood at some distance, whereafter, the accused caught hold of Tahir from his hands and legs who was injured, lifted and placed him in an uninhabited Ihata, from where sounds of fire-shots were heard and after some time, Said dragged his sister Mst. Kaneez Fatima aged 19/20 years who was virgin from her house and brought her to the deserted Ihata by throwing her near the dead body of his brother and fired upon her killing her. Reason for these murders was that Said and his relatives suspected that his brother Tahir had illicit relations. With Mst. Kaneez Fatima. It was stated that since it was dark being night time he could not immediately go to inform the police.
6. Chaudhry M. Sadiq Maiken, S.H.O., Police Station Saddar, Chiniot after recording the F.I.R.
Proceeded to the spot, prepared the injury statement Exh.P.B. And Inquest Report Exh.P.C. Of the dead body of Tahir. Similarly he prepared injury statement Exh.P.G. And inquest report Exh.P.H. In respect of the dead body of Mst. Kaneez Fatima and despatched the bodies to the mortuary for post-mortem examination. Since the bodies were lying on the grass, no blood-stained earth was collected. On 15-11-1996 Said was arrested and while in police custody he led to the recovery of gun (P.1) from a residential room from underneath the bedding which was taken in possession vide memo. Exh.P.F.
7. Doctor Saifullah, Medical Officer, Rural Health Centre, Bhowana on 13-11-1996 at 3-45 p.m.
Conducted the post-mortem examination on thedead body of Tahir and found the following injuries on his person:--
(1) A lacerated wound 4 x 3 c.m. On left eye ball. It was wound of entry underlying skull bone was fractured.
(2) A lacerated wound 10 c.m. x 6 c.m. Of entry on right eye ball, underlying skull bone was fractured into pieces. Brain matter was coming out.
(3) A lacerated wound of entry 6 x 4 i.m. On the right temporal area, underlying skull bone was fractured.
(4) A lacerated oval wound of entry 4 c.m. x 4 c.m. On front of right middle abdomen. There was corresponding hole on the Qameez and Bunian.
(5) Five lacerated oval wounds of entry of different sizes in an area of 10 x 8 c.m. On left buttock with corresponding hole on Shalwar.
' In the opinion of the doctor, cause of death was due to shock resulting from external and internal haemorrhage because of injuries Nos.1 to 4 who were sufficient to cause death in the ordinary course of nature and were fatal to life. Injuries were ante-mortem and inflicted by a fire-arm. Time between death and injuries was immediate and that of between death and post-mortem examination was 12 to 16 hours.
8. Fida Hussain, Dispenser, T.H.Q. Hospital, Chiniot appeared as P.W.8 and stated that Doctor Amtul Raqeeb remained posted in the said hospital for about 2 years and, therefore, he is conversant with her handwriting and signatures. He identified the signatures of the Lady Doctor on Exh.P.K. Which was post-mortem report of Mst. Kaneez Fatima who had been examined by the aforesaid Lady Doctor and had gone abroad and there was no likelihood of her arrival in Pakistan in near future.
Exh.P.K. Indicated 5 fire-arm injuries on the different parts of the body of Mst. Kaneez Fatima, examined on 13-11-1996 at 2-50 p.m. Injuries Nos.1, 2 and 4 were stated to be sufficient to cause death in the ordinary course of nature.
9. The trial Judge extending benefit of doubt to Muhammad Khan, Mian Khan and Ahmed acquitted them.
10. After completing the investigation, challan was submitted in the Court. Appellant was indicted, he denied the charge and pleaded not guilty.
' During trial, prosecution examined as many as 10 witnesses. Ocular testimony account was furnished by M. Abram as P.W.3 as complainant and Nazir Ahmed.
11. Three vaginal swa bs taken at the time of post-mortem examination were found to be not stained with semen by the Chemical Examiner vide his report Exh.P.M.
12. Said appellant aged 25 years while in his statement under 'section 342, Cr-.P.C. In reply to the question as to why prosecution has brought the case against him has stated that on the fateful night he was coming back to his house from his agriculture land after irrigating his fields and when he reached near the Ihata situated closed to his residential house he heard whispering sound and found both the deceased in a compromising position and committing Zina with each other. Kaneez Fatima was his unmarried sister and getting highly provoked under grave and sudden provocation he murdered both of them at the spot by firing with his gun and after the occurrence he himself appeared before the, police. None of his co-accused was present at the spot at that time. The complainant involved his entire family after distorting the facts.
13. Learned counsel appearing for the appellant pleaded for lesser penalty and stated that in such- like situation where the paramour and the female relative of the accused is found in an actual compromising position, lesser penalty of 2 to 3 years at the most is imposed. Conversely, learned counsel appearing for the State appeared and supported the conviction and sentence recorded by the trial Judge.
14. The ocular testimony account has been furnished by M. Akram, P.W.3 and Nazir Ahmad, uncle of the deceased as P.W.4. Apart from reiterating the contents of the First Information Report certain improvements have been made. The delay in lodging the F.I.R. Casts serious doubt about the presence of these witnesses and. Secondly the story of firing at the deceased Tahir on one place and then picking him up and placing him at the deserted Ihata whereafter firing the remaining shots and then bringing his sister from the house and throwing her next to the dead body of the deceased Tahir and also killing her with fire-arm shots is not appealable to the reason and logic.
15. Story has been innovated by the eye-witnesses to give the colour of deliberate murders based on suspicion. This is too far-fledged an idea of conceiving that on the basis of mere suspicion a brother would bring his sister from the house to throw her on the dead body of her paramour and then kill her. The occurrence took place in the dead of the night in the deserted Ihata affording an opportunity to two lovers to meet and attempt to co-habitate. They were seen by the appellant who by losing total control over his passion shot dead his sister namely Kaneez Fatima alongwith her paramour. These murders came to light when the morning dawned and it was at that time when the complainant came and saw the dead body of his brother alongwith her beloved and went to the police station and made a report. However, since the appellant has admitted the murders, therefore, his culpability stands determined and the only question, which requires consideration is the sentence. Conviction already had been made under section 302(c), P.P.C.
Which according to the latest law pronounced by the apex Court takes into consideration the old exceptions to section 300, P.P.C., which are now being dealt with by penal clause under section 302(c), P.P.C.
16. Report of Dr. Saifullah who conducted the post-mortem examination on the dead body of Tahir while describing injury No,5 has observed a corresponding hole on his Shalwar. Meaning thereby that the deceased had not removed his Shalwar at the time of occurrence. Similarly, the vaginal swa bs examined by the Chemical Examiner which were taken from the vagina of the deceased lady were found to be not stained with semen. Both these facts lend credence to the observation that Mst. Kaneez Fatima and Tahir had not yet commenced co-habitation. Admission by the appellant himself that he was attracted by the whispering sound indicates that the deceased were talking to each other in low tone and may be the talk was strictly amorous in nature, however, the coitus has not yet started.. The beneficial admission made by the Investigating Officer, Chaudhry M. Sadiq Maiken, Inspector who appeared as P.W.7 have to be taken with a pinch of salt. Trial Court had already criticised the manner of his investigation. I endorsed that view. The appellant, therefore, found his sister in the company of her paramour although they were dressed in their clothes and the sexual intercourse had not commenced, therefore, losing one's emotions to such an extent as to riddle both the deceased with bullets indicates doing of a frenizied mind. There is no doubt that any respectable person will lose his power of self-control when he sees his sister in the arms of a paramour at night but yet one has to control his passions and allow law to take its own course.
17. Arguments of the learned counsel that the lesser penalty of 2/3 years for killing of two persons would meet the ends of justice may have been appropriate and apt if the couple was seen actually committing sexual intercourse but for reasons discussed above that not being the position, reducing the punishment to the period prayed for would be grossly inadequate to the dictates and the demands of justice. By observing this I by no means want to hold that the appellant was not deprived of power of his self-control. However, the sentence of imprisonment which runs up to 25 years has to be lessened or increased depending upon the amount of provocation given. The provocation given in this case neither calls for sentence of imprisonment to 25 years as imposed by the learned trial Judge being on the extreme side and similarly pleading for sentence of imprisonment for 2 to 3 years is on the other extreme side of being too light and inadequate. Keeping in juxtaposition, the complete facts and circumstances while maintaining the conviction I reduce the sentence of imprisonment to 10 years' R.I. Imprisonment shall be concurrent in nature and benefit of section 382-B, Cr.P.C. Is also extended
18. With this modification, appeal is dismissed.
19. Criminal Revision No,564 of 1999, for reasons rendered in the instant Criminal Appeal, Criminal Revision is accordingly dismissed.