DOST MUHAMMAD KHAN, J.----Appellant Fazalay Muhammad alias Khangai alongwith acquitted co-accused Umar Gul and Zoor Talab Khan was tried by, the learned ASJ-II/Izafi Zila Qazi, Swat on a murder charge under sections 302/109/188/13, A.O. And upon conviction has been sentenced to life R.I. With a fine of Rs.20,000 or in default to suffer 5 years' S.I. For the murder of Muhammad Akbar Khan. He was also directed to pay Rs.1,00,000 as compensation to legal heirs of the said deceased.
Similarly he was sentenced to life R. I. With a fine of Rs.20,000 or in default of payment of fine to further S.I. For five years for the murder of Mst. Bakhti Jehan, his were. He was further convicted and sentenced to two years' R.I. With a fine of Rs.1,000 or in default to suffer six months further S.I. For an offence under section 13, A.O. For having in his possession an unlicensed pistol of .30 bore. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to him.
2. According to the prosecution version both the deceased were killed inside his house by the appellant by firing at them with pistol. The report of the occurrence was made by Bawar Khan father of the male deceased wherein he squarely stated that both were killed by the appellant because of their illicit relations inter se. The occurrence is stated to have been witnessed by Tajbari and Azizur Rehman's. The acquitted co-accused were charged only for abetment.
During spot inspection the Investi--gating Officer took in his possession the blood-stained clothes of the deceased through memos. Exh.P.W.1/1 and Exh.P.W.2/2 and the suspected semen stained swa b sent by the doctors through memo. Exh.P.W.1/3. The .30 bore crime pistol allegedly produced by the appellant in presence of the witnesses was also taken into possession through memo.
Exh.P.W.1/4. Similarly through Exh.P.W.1/5 two crime bullets recovered from the dead body of deceased and a cloth having suspected menstrual blood on it was secured which were witnessed by P.W.1, namely, Salahuddin Head Constable.
After necessary investigation charge --sheet against all the three accused was submitted in the trial Court where the trial ended in conviction of the appellant.
So far the F.I.R. Lodged by Bawar Khan is concerned, it appears that the same was lodged after deliberation and full inquiry and despite that fact he has squarely mentioned that both the deceased were done to death by the appellant for having illicit relation between them. The lady deceased was the, were of the appellant who had entered into wed-lock with the appellant a month back.
3. The learned counsel for the appellant was much critical of the role played by the eye-witnesses, namely, Tajbari and Azizur Rehman's both at pre and post events stages as none of them moved to inform-the police or lodge the F.I.R. Albeit they stuck to then stand of being eye-witnesses till the last leg of the trial thus no justification afforded for their silence at the spot and not reporting the matter.
4. The learned counsel for the complainant and the State, however, contended that both the witnesses are independent witnesses and no malice or ill --will has been attributed to them, therefore, their testimony cannot be discarded for the reasons advanced by the learned counsel for the defence.
We have gone through the entire record and evidence recorded at the trial.
No doubt P.W.3 Tajbari and P.W.4 Azizur Rehman's have shown reluctance in informing the police to lodge the report but there is a strong reason for not becoming complainant in a murder case as the area to which they belong is ruled by the stringent and harsh customs, therefore, they avoided wrath of the accused in not becoming complainant in the case.
They have given consistent evidence on main features of the case while giving the ocular account of the occurrence. They were cross-examined at considerable length but except few contradictions and improvements their testimony has almost gone unchallenged. Moreover, the defence has failed to suggest them any personal motive ill-will or grudge against the appellant for his false implication in a double murder case, therefore, their testimony cannot be discarded altogether for the above simple reason.
It is an undeniable fact that both the deceased were done to death in the house of the appellant at one and the same time, close to each other. From both the places blood was recovered.
Apart the above the appellant disappeared after the occurrence and was arrested after some days knowing well that his new bride was killed and that he has also produced the crime pistol to the police in presence of the witnesses.
Further, Abdul Wahab P.W.5 the brother of deceased Mst. Bakhti Jehan has appeared and deposed that the appellant after committing the crime appeared before him on the following night and disclosed that he has killed both the deceased for having and indulging in illicit, relations inter se.
The medical evidence given by both, the doctor and lady doctor also lend support to the prosecution case regarding the cause of death, therefore, we entertain no amount or doubt that the appellant alone is the killer of both the deceased and nobody else.
5. The pivotal question confronted by us, however, is the one as to whether it was a cold-blooded murder or was a result of sudden and grave provocation caused to the appellant by the inter se illicit relations of the two deceased. The appellant has not specifically taken the said plea in defence and his plea is of double denial of the crime, however, we cannot ignore the establishes facts on record.
It is settled principle of criminal justice that accused person is not required to prove his defence plea or to be definite in his defence and benefit of doubtful circumstances must be given to him and if defence plea is spelt out from the prosecution evidence itself then the benefit of fit cannot be denied to him.
6. There is no evidence that the deceased Muhammad Akbar Khan was coming Within the prohibitory degree to deceased Mst. Bakhti Jehan. The place where he was killed according to the site-plan is note only inside the house of the appellant but is close to the place where Mst. Bakhti Jehan was killed. The trespass of the deceased Muhammad Akbar Khan into the house of the appellant at a time when the deceased Mst. Bakhti Jehan was all alone could not be for any other purpose but for a detestable design to have illicit intercourse with her. The time of occurrence as shown in the F.I.R. And as has gleaned from the statements of the two witnesses was digger (Asar) prayers time when by then the appellant and all other co-- villagers must 'be present in the mosque for prayers thus the time selected by them also is a supporting proof for the above view.
Again Abdul Wahab, the brother of Mst. Bakhti Jehan deceased, has also confirmed in his statement that while making extra-judicial confession the appellant disclosed to have killed both the deceased for having illicit relations. On the other hand Bawar Khan, the father of the deceased Akbar Khan, has also admitted this fact while lodging the report. He also confirmed at the trial that there was no previous enmity or ill-- will between the appellant and his deceased son.
7. Besides, the above evidence the Chemical Examiner report is on the file which was relied upon by the prosecution. The expert has detected semen on the cloth collected by the lady doctor from the lady deceased which is another strong circumstance and indicator that both the deceased were in compromising position at the time of occurrence.
The above principle of law was reiterated by the apex Court with somewhat wider and comprehensive amplitude in the case of Zahid Parvez and another v. State PLD 1991 SC 558, the relevant para. Is reproduced below:-- "APPRECIATION OF EVIDENCE"-- ----both parties had introduced vital false hood in their respective versions---prosecution had failed to explain the injuries on the person of sister of accused person while accused person had withheld the whole truth regarding having almost killed their own sister and assumption was that but for the incident of their sister, there might have not been any murder at all---Held, only alternative for the Court was to follow the guidelines given in the ibid case of Syed Ali Bepari PLD 1962 SC page 502. It. Was not only legally possible but also a legal necessity to act on the third highly probable version which is shorn of the embroidery and falsehood introduced by both the interested parties---Court after considering the matters before it could act on the genuine probability and adopt the said course. "
While applying the above principle of law, and after considering the entire facts and evidence on record we are squarely firm in our view that both the deceased were killed under sudden impulse of grave provocation caused to the appellant because both the deceased were found by him in compromising position, therefore, the sentence awarded to him requires to be reduced.
As the appellant married the deceased Mst. Bakhti Jehan 25 days or so prior to the occurrence, therefore, at such earlier stage when she was still bride of the appellant, her developing illicit relations with a young boy of 14/15 years in all circumstances must have caused very grave provocation to the appellant and he acted under the same. In our view, therefore, sentence of 10 years R.I. On two counts under section 302(c), P.P.C., would meet the ends of justice which is reduced accordingly. The sentence of fine imposed on one count is also set aside because the same cannot be awarded under the new law, however, the compensation amount awarded to the L.Rs. Of the first deceased is maintained. Similarly while maintaining his conviction, the sentence given under section 13, A.O. Is also maintained. The benefit given under section 382-B, Cr.P.C. Is also maintained. All the sentences shall run concurrently as the benefit was given by the trial Court too.
With the above modification in the sentence while maintaining conviction of the appellant, the appeal is partly allowed.