2003 P Cr (PLP)

5. According to F.I.R., the complainant was resident of Mouza Haroonabad within the vicinity of Police Station Pacca Laran, District Rahim Yar Khan. His son Muhammad Nadeem (deceased) was running a grocery shop in his house and used to sleep in the house after closing his shop. On the fateful night Muhammad Nadeem was sleeping in his house when at about midnight Muhammad Siddiq-appellant alongwith Faiz Muhammad came to the house of the complainant and knocked the door. The complainant opened the door and saw Muhammad Siddiq and Raiz Muhammad, who asked the complainant to wake up Muhammad Nadeem, as their mother was suffering from some ailment and they intended to purchase sugar, tea etc. from the shop. As Muhammad Siddiq and Faiz Muhammad were the neighbours, the complainant sent his son alongwith them. After a short while, the complainant heard cries of Muhammad Nadeem, which were coming from the house of Muhammad Siddiq -appellant. The complainant alongwith his nephew Muhammad Ajmal P.W.9, Mushtaq Ahmad and Muhammad Akmal reached the scene of occurrence and saw in the light of the electric bulb that Muhammad Siddique armed with Kassi, Faiz Muhammad and Habib armed with hatchets were causing injuries to Muhammad Nadeem. Within the view of P.Ws. Muhammad Siddiq gave a Kassi blow, which landed on the head of Muhammad Nadeem. Faiz Muhammad gave a hatchet blow, which caused injury on the right side of the face of Muhammad Nadeem. Habib Ahmad gave hatchet blow, which landed on the backside of Muhammad Nadeem. Muhammad Akbar gave hatchet blow on the face of Muhammad Nadeem. The complainant and the accompanied witnesses tried to rescue Muhammad Nadeem but they were threatened with life by the accused. Muhammad Nadeem succumbed to the injuries at the spot. The complainant and other P.Ws. came back to the village in order to wake up other residents and when, after a short while, they returned to the scene of occurrence they saw that Muhammad Siddiq, Faiz Muhammad, Habib Ahmad and Muhammad Akbar were causing injuries on the person of Mst. Maqsood Mai, wife of Muhammad Siddiq-appellant. It was added in the F.I.R. that when Muhammad Nadeem was being inflicted injuries, Mst. Maqsood Mai was not present. However, Mst. Maqsood Mai also succumbed to the injuries at the spot. Thereafter the accused left the scene of occurrence.

6. The motive as set down in the F.I.R. was that Muhammad Siddiq suspected that Muhammad Nadeem had illicit relationship with Mst. Maqsood Mai and in spite of the fact that one month prior to the occurrence the complainant had assured the appellant about the innocence of Muhammad Nadeem yet he kept grudge in his heart.

7. During trial Rai Jan Muhammad-complainant and his nephew Muhammad Ajmal appeared as P.W.8 and P.W.9 respectively and furnished the ocular account. P.W.9 also stated about the recoveries affected from the spot. Dr. Farina Tahira appeared as P.W.2 and stated that Mst. Maqsood Mai had received eight injuries on her person and all the injuries were incised wounds caused by sharp-edged weapon. Swabs were taken from the vagina and sent to the Chemical Examiner, so she could give opinion about the rape after going through the report of the Chemical Examiner. However, according to the report of the Chemical Examiner Exh.P.CC. the swabs were found to be not stained with semen. P.W.3 Dr. Abdul Malik, stated that he conducted the post-mortem on the dead body of Muhammad Nadeem, who had received eight injuries on his body. Out of those, four injuries were incised wounds and were caused by sharp-edged weapon. No independent witness qua the motive, except P.W.8 Rai Jan Muhammad, was produced before the learned trial Court. P.W.10 Muhammad Afzal stated about the recovery effected from the appellant. Muhammad Nawaz, S.-I. appeared as P.W.11 and verified the signatures on various documents including F.I.R. prepared by Abdul Rasheed, S.-I./S.H.O., who had registered the case and conducted investigation. Rest of the witnesses were formal in nature.

8. After the closure of prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. wherein he stated as follows:-- "I am innocent. The whole investigation is dishonest. In fact I had gone to have a round of my cotton crops and came back at about Rozay Wela and saw both Nadeem and Maqsood sleeping in my room on the same cot committing Zina. Having lost self -control I gave Kassi blows to both the deceased under grave and sudden provocation. No P.W. was present at that time at the place of occurrence. The other accused were also not present at the place of occurrence not they participated in the commission of this occurrence in any manner. I myself appeared before the police and informed about the occurrence. The police took Kassi from the spot on the very first day of the occurrence but afterwards concocted wrong story in conspiracy with the complainant party involving falsely me and my other co -accused." The appellant did not lead any defence.

9. The learned counsel for the appellant, at the very outset, has stated that he would only pray for reduction in sentence and remittance of compensation, in the circumstances of the case.

10. The learned counsel for the complainant has argued that the learned trial Court has erred in law by discarding the statement of P.W.8 Rai Jan Muhammad and P.W.9 Muhammad Ajmal, who were the natural witnesses and had explained their presence at the scene of occurrence. He has further argued that the deceased was taken alone with him by the appellant on a false pretext and, therefore, it was not a case of reduction of sentence and remittance of compensation.

11. The learned counsel appearing on behalf of the State has supported the judgment passed by the learned trial Court.

12. I have heard the learned counsel for the parties and gone through the entire record of the case. It has been noticed that the appellant was convicted on the basis of his statement recorded under section 342 Cr.P.C. and the prosecution version was rejected in toto, as the same-was found to be untrue. Admittedly the occurrence has taken place in the mid of very cold night of the month of November and both the deceased were, done to death in the house of Muhammad Siddiq-appellant. According to the inquest report Exh.P.B. the dead bodies of both the deceased were lying on one cot and a Kassi was also lying nearby. P.W.8 and P.W.9 who are real father and cousin of the deceased were allegedly accompanied by two other P.Ws. Mushtaq and Akmal, who were not produced during the trial, did not in any manner try to save the life of Muhammad Nadeem. It is in evidence that P.W.8 had licensed Revolver and gun. This P.W. according to his own version, had g6ne to the scene of occurrence twice but on both the occasions he had gone empty-handed. This version of P.W.8 does not appeal to reasoning. It is also noteworthy that the complainant, who is father of the deceased, would not allow his son to accompany the appellant and his brother in the mid of night in the background of motive. Both these P.Ws. had stated that the acquitted co -accused were not only present at the scene of occurrence but they had caused injuries to both the deceased. The acquittal of the co-accused has not been challenged either by the State or by the complainant, which has attained finality. Now it is well-settled that if evidence of eye-Witness has been found false or doubtful in respect of acquitted accused, it is necessary for the Court to look after additional strong circumstantial evidence in the nature of corroborative testimony against the accused who is sought to be convicted upon the testimony of some Witnesses whose evidence was not partly acted upon in respect of acquitted accused. Reliance is placed on the cases of Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220 and The State v. Muhammad Sharif 1995 SCMR 635.

13. As far as the recovery of blood-stained hatchet from the possession of the appellant is concerned, the learned trial Court has rightly not placed any reliance on it. The presence of blood-stained Kassi has been mentioned at Serial No. 3 in Column No. 24 of the inquest report and in normal circumstances, the same should have been taken into possession by the Investigating Officer when he visited the place of occurrence.

14. Muhammad Afzal P.W.10 can hardly be termed as an. independent witness, as he is real brother of the complainant Rai Jan Muhammad. He admitted during cross-examination that both the accused persons were jointly taken to their house and recoveries were effected.

15. As far as the medical evidence is concerned, it reveals that the assailant had all the time available to him to cause as' many injuries as he chose.

16. The upshot of the whole discussion is that I am of the firm opinion that the learned trial Court has rightly rejected the prosecution case and has correctly based conviction on the statement of the appellant recorded under section 342, Cr.P.C. In such situation the statement of the appellant is to be accepted as a whole. Thus it was under the grave and sudden provocation that the appellant committed the murders of Muhammad Nadeem and Mst. Maqsood Mai, who were found to be lying together by the appellant. I, therefore, maintain the conviction of the appellant for offence under section 302(c), P.P.C. on two counts. However, I reduce the sentence of the appellant Muhammad Siddiq from rigorous imprisonment for 25 years to 10 years' R.I. on each count, as the same would serve the ends of justice in the circumstances of the case. I am fortified in my view by placing reliance on the case of The State v. Muhammad Hanif and 5 others 1992 SCMR 2047. Both the sentences would run concurrently. Benefit of section 382-B, Cr.P.C. already extended to the appellant is maintained.

17. Now coming to the point of compensation. It has been noticed that Mst. Maqsood Mai, wife of the appellant was aged about 20/22 years, while Muhammad Nadeem who was unmarried, was 27/28 years old. Both were lying on the same cot on the fateful night. According to the statement of the appellant they were committing Zina. Both the deceased were killed while they were committing immoral act therefore their heirs are not entitled to any compensation. Thus, I remit the amount of compensation imposed upon the appellant under section 544-A, Cr.P.C. I am fortified in my view by placing reliance on the cases of Ghulam Murtaza v. The State 1985 PCr.LJ 1191, Maqsood Ahmad v. The State 1985 PCr.LJ 2236, Muhammad Bakhsh v. The State 1990 MLD 1996 and Muhammad Saleh v. The State PLD 1965 SC 466.

18. With the above modification in the period of sentence and remittance of the amount of compensation. This appeal is partly accepted. H.B.T./M-1956/L Order accordingly.