1993 PLP 208 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑In this murder case leave to appeal was granted on petition of the appellant for re‑appraisal of evidence for the grounds stated m the order for grant of leave to appeal dated 21‑12‑1991. As against the prosecution version of a planned attack by the appellant and the resultant two murders, the defence version given by the appellant was as follows:‑‑‑ "In fact Mst. Zohran, my sister was married to Abdullah. She was present at our house when she slipped away. It was about a month prior to the occurrence. I had been making efforts to locate her but I could not trace her whereabouts. Abdullah husband of Mst. Zohran held us responsible for the slipping away of his wife and was pressing hard to search her and to return her to her husband. In connection with the search of Mst. Zohran on 28‑8‑1983 I reached late by bus at Arifwala. From Arifwala I went to Chak No.27/EB to the house of my sister Mst. Aisha on foot. I arrived at the house of my sister Mst. Aisha and her husband Asghar at about 11.30 p.m. There I found that Mst. Aisha and her husband were not present while their children were present in the courtyard and were asleep. I heard whispering sound from the roof of the house. I went upstairs to the roof. There to my astonishment Mst. Zohran my sister was lying on the cot with Muhammad Arif deceased. I got enraged and I was provoked and this happened so suddenly that I could not control myself. Under sudden and grave provocation I picked up a `kulhara' lying near the cot and inflicted injuries to both Muhammad Arif and Mst. Zohran. When I realised that both of them had died as a result of the injuries inflicted by me I slipped away. No person saw me giving the injuries. I had thrown the hatchet on the roof. Shaukat PW is brother of the deceased and he resides at a distance of three miles from the place of occurrence. Asghar brother of the deceased is a `mueen' of Basharat P.W. and Basharat P.W. resides at a distance of 1‑1/2 miles from the place of occurrence. These P.Ws. have made statements against me because of the above connection. I am innocent. When Mst. Zohran left our house she was pregnant so there could not be any occasion for her divorce from Abdullah and re marriage with Arif deceased. Though I am a poor man yet the occurrence had taken place because of sudden and grave provocation." Abdullah the husband of the deceased lady supported the defence version to a considerable extent as follows:‑‑‑ "I am originally resident of Chak No.50/GD. Mst. Zohran deceased and her parents were residents of Chak No.49/GD. I was married to Mst. Zohran about nine years back. I had only one issue from her who died in infancy. She went to her parents about 4‑5 months prior to the occurrence. She was pregnant at that time. After one month of her going to house of her parents I went to the house of my in‑laws and enquired about her. I was informed that Mst. Zohran had gone in Chak No.27/EB to attend to her sister who was to give birth to a child. I had been asking my in‑laws for the return of my wife but I was continuously informed that she was with her sister in Chak No.27‑EB. All of a sudden I came to know that she had been murdered and Muhammad Arif had also been murdered with her. I came to know that my wife had given birth to a daughter and that kid is still in Chak No.27/EB where she was born. I never divorced my wife Mst. Zohran. I produce that copy of my Identity Card (Original seen and returned). I also produce photo copy of Identity Card of Mst. Zohran (original seen and returned)." As against this the prosecution version as contained in the testimony of Shaukat Ali P.W. is as follows:‑‑‑ "About two years and seven months back I was asleep at my house at night time in my courtyard. Mst. Zohran deceased was asleep on the roof. Arif deceased was asleep near the grinding machine which is just adjacent to the residence. At about mid‑night I felt necessity to pass urine and on this I went outside the house. On my return Muhammad Ali and Basharat met me in the `bazar'. They accompanied me towards the grinding machine. When all of us arrived near the grinding machine, we found the accused Noor Muhammad standing with a hatchet in his hand near the cot of Arif deceased. Two sisters of Noor Muhammad were married, one to Arif deceased and the other to Asghar Ali. He was also sleeping on that night in the courtyard. The accused gave a hatchet blow on the neck on the throat side of Arif deceased. After hitting Arif deceased the accused went up the roof with the hatchet in his hand and he gave two hatchet blows to Mst. Zohran deceased hitting on her throat and the other just below the same. The accused left the hatchet on the roof and himself jumped in the street. When we came to see Arif we found him dead and when we approached Mst. Zohran, she was also dead. Arif deceased had abducted Mst. Zohran and had brought her to his house. Subsequently there was a compromise and the deceased started visiting the accused and his mother while the accused and his mother started visiting our house. Mst. Zohran was previously married to one Abdullah from whom divorce was obtained and Mst. Zohran was married to Arif deceased. I went to the police station in the morning and narrated the facts there. My statement was recorded and after reading it over to me and I had admitted the contents. I was asked to thumb‑mark my statement which is Exh.PF." Learned counsel for the appellant argued that although it was the prosecution case that Abdullah had divorced Mst. Zohran and Arif had performed a Nikah with her, no definite finding to affirm this could be rendered on account of several infirmities in this story particularly, the element of Abdullah's position. But at the same time he very candidly stated that in view of the several features of the prosecution as well as the defence case it would remain a marginal case of classical nature in which neither it can be said than the prosecution story is without any reasonable doubt nor it could be said that the appellant had told the whole truth. Be that as it may, learned counsel further argued, in such a situation the conviction cannot be upheld, because the benefit of reasonable doubt regarding the prosecution case is to result in the acceptance of the defence version; namely, that of gave and sudden provocation. W e have noticed the site plan in which the two deaths were caused at different places. There was considerable chase. The nature and gavity of the injuries also show that it must have been with a heavy weapon like `Kulhara'. It also appears that although the appellant might have known that Mst. Zohran was residing with his other sister Mst. Aisha but there was no reason for him to assume if she had contracted a lawful marriage with Arif. There is a strong possibility that he was not only surprised but shocked when he saw the two of them in compromising position as stated by him. ' After 'hearing both the sides it is not possible for us to hold that the version given by the accused is absolutely false. The result in such a situation would be that the benefit of reasonable doubt would go to appellant. Accordingly the appeal is allowed. While setting aside his conviction under section 302, P.P.C. we set aside the sentence of life imprisonment and instead convict him under section 304, Part 1, P.P.C. and sentence him to 7 years R.I. We also grant him the benefit of section 382‑B of the Criminal Procedure Code. Both the learned counsel, after calculating the period in custody served as convict and as under‑trial prisoner stated that it would cover 7 years. Accordingly, the appellant shall be released forthwith if not required in any other matter. M.BA./N‑319/S Order accordingly.