1990 P Cr (PLP)

4. A.S.I. Abdullah Khan (P.W.14) after registration of the case visited the place of occurrence same day and after preparing injury-statements and inquest reports sent both dead bodies to the mortuary for post-mortem examination under police escort. Dr. Saeed Ahmad Usmani (P.W.5) conducted post-mortem examination on 29-4-1983 al 4 p.m. and noted seven injuries on the dead body of Rustam. Of them, one was incised wound on the left cheek extending upto left angle, two were gunshot injuries (entry and exit wound), two abrasions and two lacerated wounds on the left arm caused with blunt weapon whereas 13 injuries were found on the dead body of Mst. Sine, (deceased) which included lour incised wounds and rest were abrasions. Of them, two incised wounds 15 c.m. x 5 c.m. were on the head under which the skull and brain were cut, and under another incised injury 5 c.m. x 2.5 c.m. on the right forearm, both the radius/ulna bones were cut. The two head injuries mentioned above had proved fatal. Lady Dr. Khudeja (P.W.16) examined Mst. Shahnaz and Mst, Hawa P.Ws. at 1-OS a.m. on 30-4-1983 and found four injuries on the person of Mst. Shahnaz, three of which were gunshot injuries and one was an abrasion, whereas Mst. Hawa had suffered two lacerated wounds on her left arm caused the blunt weapons. Injuries of both the ladies were found to be simple

5. Muhammad Basharat Inspector (P.W.15) arrested Shamla, Latif and Piranditta on 30-4-1983 and Mahmood was arrested on 10-5-1983. On 17-5-1983 Mahmood and Shamla got recovered Soti P.9 and P.10 respectively from their residential Kotha and were seized under memos. EX11s.P.R. and P.S. On 12-5-1083, Piranditta got recovered pistol (P.7) from his house, which was seized under memo. Exh. PP. On the same day Latif (appellant) got recovered blood stained hatchet (P.8) from his residential Kotha which was seized under memo. Exh P.Q All these memos. were attested by Faqir Bakhsh complainant (P.W.6) and the Investigating Officer (P.W.15). According to Chemical Examiner's report Exh.P.X and that of Serologist Exh. P.Y., blood-stained earth and the hatchet recovered from Latif appellant were found stained with blood of human origin.

6. At the trial the prosecution examined 16 witnesses in all. Of them, Faqir Bakhsh, complainant (P.W.6), Mst. Shahnaz (P.W.7) and Mst. Hawa (P.W.O) stated that Rustam deceased was killed,, in his house by Latif appellant and Piranditta in their presence whereas Badla (P.W.12) and Mst. Subhal (P.W.13) deposed about the murder of Mst. Sino by Latif alone. Faqir Bakhsl, complainant (P-W.6) so stated about the recovery of blood-stained hatchet also from Latif appellant.

7. On 20-5-1983, after the prosecution evidence had concluded, the learned defence counsel informed the Court that Piranditta and Mahmood accused were absent. They never appeared thereafter despite issuance of non-bailable warrants of arrest, therefore, proceedings under section 87, Cr.P.C. were taken out against them and they were ultimately declared as proclaimed offenders and the trial proceeded qua Latif and Shamla accused only.

8. In their statements, under section 342, Cr P.C. Shamla denied his presence and participation, whereas Latif appellant set up plea of grave and sudden provocation in the following words: "On the night of occurrence I had been working on my thrashing machine and after finishing my work after mid-night, I was coming back to my house, when 1 reached at a distance of two acres from my house, I abruptly saw Rustam and Mst. Sino deceased together in an objectionable condition in a jungle as they were kissing with each other in a compromising position. I was carrying a hatchet at that time. On seeing them in an objectionable condition I lost my self-control and attacked Rustam and Mst. Sino deceased. Rustam deceased ran away after receiving one hatchet blow and while running he left behind a pistol. I murdered Mst. Sino then and there with hatchet. I took pistol and then chased Rustam deceased to his house where Mst. Hawa and Mst. Shahnaz tried to save him and I fired at Rustam deceased which hit him and also Mst. Shahnaz P.W. while Mst. Hawa was not hit. When I was murdering Mst. Sino deceased, Badla and Mst. Sabhal P.Ws. also reached there and witnessed the occurrence and I told them about the above incident. Except the abovesaid P.Ws. all other family members had gone to attend the Out ceremony of Nur Muhammad Chang. The other three accused were not present with me at the time of occurrence. I alone had murdered Mst. Sino and Rustam deceased under the impulse of grave and sudden provocation. Faqir Bakhsh and Bahawal P.Ws. were not present at the time of occurrence. After the occurrence I was going to police station when Abdullah A.S.1. met me on the way and I produced before him the hatchet and pistol of Rustam deceased and narrated him the incident. He reached the spot alongnvith me and summoned Faqir Bakhsh and then made him a complainant in the case and also cooked up a false story. Mst. Sino and Rustam deceased were bachelor at the time of occurrence. The P.Ws. are closely related with each other, therefore, they have deposed against me due to their relationship with Rustam deceased."

9. Learned trial Court on consideration of the material on record observed that as the F.I.R. Exh. P.F. on complainant's own showing was recorded on the spot, therefore, it could not be used as corroborative evidence for it appears to have been recorded after preliminary investigations. About recovery of weapon made from the accused it remarked that it was of no consequence, firstly because Latif appellant would not have kept blood-stained hatchet intact for so many days and secondly the provision of section 103, Cr.P.C. were not adhered to. As for the ocular testimony learned trial Court in para, 24 of its judgment held that evidence of Faqir Bakhsh and Mst. Shahnaz P.Ws. `with regard to the occurrence and the manner in which it took place, inspires confidence, therefore ... the prosecution case stands proved beyond reasonable doubt' but at the same time in the following para. of the judgment it remarks that `possibility of the defence version of Latif accused .. being true cannot be ruled out' and in consequence thereof Shamla accused was acquitted and Latif appellant alone was convicted and sentenced under sections 304, Part 1 and 307, P.P.C. as indicated in para. 1 above.

10. Learned counsel appearing on behalf of the appellant did not challenge conviction on merits and only asked for reduction in sentence as imprisonment for life in this case of grave and sudden provocation is harsh and excessive.

11. I have carefully gone through the evidence and find that learned trial Court's findings that F.I.R. being a document prepared on the spot could not be used as corroborative evidence is unexceptionable. As for the recovery of weapon of offence, it is true that none of the witnesses from public has supported it but since the recovery of hatchet (P.8) has been admitted by Latif appellant, therefore, it is immaterial that recovery witness Sardar Muhammad (P.W.1) had turned hostile.

12. The occurrence is not denied by the defence. The parties are at one about the motive also. They differ only about the manner in which the occurrence had taken place. According to prosecution, the appellant alongwith his other co -accused at the relevant time having trespassed into the house of Rustam deceased A attacked and killed him there and thereafter they killed Mst. Sino declaring her as Kali. In support of this version the prosecution has relied on the testimony of Faqir Bakhsh (P.W.6), Mst. Shahnaz (P.W.7) and Mst. Hawa (P.W.9). To the contrary, the defence version is that Mst. Sino, niece of appellant, was unmarried lady who had illicit connection with Rustam deceased. At the relevant time both the deceased were found flagrant delicto in the fields by Latif appellant who killed Mst. Sino and injured Rustam deceased. Rustam deceased escaped from the spot whom Latif appellant had chased into his house and killed him there and in that process h1st. Shahnaz P.W. was also injured. The defence has relied on the medical evidence showing that Mst. Sino deceased was pregnant, besides evidence of Badla (P.W.12), brother of Mst. Sino, deceased, and Mst. Subhal (P.W.13) who stated that they saw Latif appellant alone killing Mst. Sino deceased having seen her in compromising position with Rustam deceased. 13. 1 have gone through the entire record with the assistance of learned counsel for the parties. None of the eye-witnesses implicated Shamla accused that he caused any injury to either of the deceased, therefore, I Find that learned trial Court had rightly given him benefit of doubt and acquitted him.

14. There is no direct evidence whatsoever showing that Rustam was murdered first and Mst. Siuo subsequently. Again there is no evidence that Mist. Sino was murdered by other 'accused alongwith Latif appellant. Badla (P.W.12) (brother of Mst. Sino deceased) and Mst. Subhal (P.W.13) have clearly stated that Mst. Sino was murdered in a field two acres away from her house by Latif alone under fit of grave and sudden provocation. The only evidence on record to show that Mst. Sino was murdered after Rustam had been done to death is the statement of Faqir Bakhsh (P.W.6) who stated that after killing Rustam, Latif appellant had shouted and exhorted his companions to finish Mst. Sino for being Kali with Rustam but Faqir Bakhsh P.W. is not supported, on this point, by Mst. Shainaz P.W. Mst. Hawa (P.W.9) had been declared hostile as she did not support the prosecution at all saying that she had weak eyesight and that she did not know the assailants at the time of occurrence and thoir names were rather told to her by her brother Faqir Bakhsh P.W.

15. The testimony of Faqir Bakhsh,, and Mst. Shahnaz P.Ws. the two eye witnesses is belied by the medical evidence. According to them, Piran Ditta, absconder had fired at Rustim deceased, Mst. Shahnaz and Mst. Hawa P.Ws. as well but the doctor did not find any lire-arm injury on the person of Mst. Hawa P.W. Again, fire-arm injury on the person of Mst. Shahnaz has blackening around it but fire-arm injury on [lie person of Rustam deceased did not have blackening at all. This belies the story of Mist. Shahnaz P.W. that she lay upon Rustam 4.6 deceased and then Piranditta had fired at them because their injuries show that they were fired at from different distances. It is worth noting that the occurrence took place at night, time and the witnesses, do not say if any source of light was available at the place of occurrence, therefore, the identification of the assailants by the P.Ws. was not possible. For all these reasons I find the testimony of Faqir Bakhsh and Mst. Shahnaz incredible. Thus, there remains in the field the statement of Latif appellant only wherein he has pleaded grave and sudden provocation. This plea finds support from evidence of Badla (P.W .12) and Mst. Subhal (P.W.13) also, therefore, I find that learned trial Court rightly accepted the appellant plea and connected him under section 304, Part I, P.P.C. which is hereby- upheld.

16. This brings me to the question of sentence. The Supreme Court of f Pakistan, in Muhammad Saleh's case P L D 1965 SC 366 wherein sister of j appellant: at night time was missing from her bed whom the appellant having found in the fields in compromising position with her paramour killed both of them, was convicted under section 304 Part 1, P.P.C. and sentenced to ten years' R.L, therefore, I would also reduce the sentence of the appellant from imprisonment for life to ten years' R.I. The sentence of fine imposed by the trial Court is maintained. Similarly his conviction under section 307, P.P.C. is altered toy section 308, P.P.C. and his sentence is reduced to the period already undergone which comes to about three years. The sentence of fine under this charge is remitted. The appeal is partly allowed in the terms indicated above. H.B.T./L-85/L Order accordinglyOrder accordingly.