1999 PLP 579 (YLR)

(5) An antemortem firearm entry wound 3 x 3 c. m. on the right hypochondrium, 4 c.m. below right nipple directed backwards, downwards and left wards. Edges blackened and burnt. (6) An antemortem firearm entry wound 3 x 3 c.m. on the left flank edges blackened and burnt omentem and intestine with faecal matter was coming out of the wound directed rightwards, forwards and upwards. (7) An antemortem firearm exit wound 3 x 3 c.m. on the right flank directed leftwards, backwards and upwards. Edges blackened and burnt intestine was out of this wound. (8) Four antemortem firearm exit wound on left side of middle of abdomen 1 x 0.75 c.m. each, 3 c.m. apart from each other, 5 c.m. above and left to umblicus in an area of about 6 x 5 c.m. (exit of Injury No.6). (9) A circular firearm exit wound 0.5 x 0.5 c.m. on the right side of back of lower chest (exit of Injury No.5). (10) An incised wound 4 x 3 c.m. on the back of base of right index finger and thumb bones underneath clean cut and is almost completely amputated and was hanging down with wound. (11) An antemortem firearm entry and exit wound 9 x 5 c.m. on the middle of front and inner side of right thigh into skin deep. On 2‑3‑1996 the same doctor conducted the post‑mortem examination of the dead body of Mst. Kalsoom and found the following injuries on her dead body:‑‑‑ (1) An antemortem firearm entry wound 3.5 x 3.5 c.m. on the left hypochondrium 6 c.m. below left nipple, edges blackened and burnt directed backward, rightward and slightly downward. (2) An antemortem firearm entry wound 3.5 x 3.5 c.m. on the back of lower part of left side of chest directed forward upwards and slightly rightwards. Edges were blackened and burnt. (3) Ten firearm antemortem exit wound 0.5 x 0.5 c.m. each in an area of about 14 x 12 c.m. on the left side of upper front of the chest. (4) Nine antemortem entry and exit wounds 0.5 x 0.5 c.m. each in the front and inner side of middle left forearm in an area of about 7 x 6 c.m.

4. On 4‑3‑1996 all the accused except Ghulam Jillani were arrested by Ahmad Khan S.I. P.W.15. On 8‑3‑1996 while in police custody accused Rab Nawaz led to the recovery of .12 bore gun P.12 which was taken into possession vide recovery memo. Exh.P

8. Khan Muhammad led to the recovery of hatchet P.13 which was taken into possession vide recovery memo. Exh.PG. On 26‑3‑1996 Ghulam Jillani accused was arrested by Agha Hussain A.S.I., P.W.12. While in police custody on 29‑3‑1996 he led to the recovery of Gun P.14 which was taken into possession vide memo. Exh.PK. After completion of the investigation the investigating Officer submitted the challan to the Court to face the trial. The accused denied the allegation and claimed the trial.

5. The prosecution examined as many as 16 witnesses in support of its case. P.W.6 Muhammad Khan is the complainant who supported the story of the F.I.R. while P.W.9 Muhammad Feroze and P. W .10 Muhammad Sher are the eye‑witnesses of the occurrence who have also supported the prosecution version. P.W.9 Dost Muhammad attested the recovery of gun P.14 which was got recovered at the instance of Ghulam Jillani. Haji Noor Muhammad P.W.5 attested the recovery memo. Exh.PG in which accused Rab Nawaz got recovered gun P.12. On the same day blood‑stained: hatchet P.13 was got recovered from Khan Muhammad accused which was attested by him vide memo. Exh.PH.

6. The accused persons were examined under section 342, Cr.P.C. Appellant Khan Muhammad took specific plea while answering the question No.20 which is as under: Since he was challaned for the murder of one Falak Sher, therefore, on account of fear, he used to sleep in the Chobara of his co‑accused Ghulam Jillani at his Dera. During the night of occurrence at about mid night time, he went from the Dera of his co‑accused Ghulam Jillani to his Dera to have a round. He was carrying hatchet P.13 with him. The door of the room of my house was found bolted from inside. He heard talks of a male and Mst. Kalsoom. He knocked the door of the room. It was opened by Kalsoom. When he was going to enter the room, he found that deceased Muhammad Ramzan was present there. He was hiding himself behind the plank of the door. He tried to run away from the room. In inflicted some hatchet blows on his person inside the Kotha. Muhammad Ramzan fell down on the cot. Mst. Kalsoom snatched my hatchet from him. The licenced gun of his son was hanging by the wall at that time. He picked up the same. After picking up the gun he fired at Mst. Kalsoom as well as at deceased Muhammad Ramzan. Both of them died there. He had himself informed the police about the occurrence. The police summoned the complainant and after cooking up a false story, he and his co‑accused were involved in this case. On the very next day of the occurrence. He had produced blood‑stained hatchet P.13 and licensed gun of his son P.12 before the police. It was on a grave and sudden provocation that he had caused injuries to both the deceased and he killed them. His co‑accused had not participated in the occurrence.

7. Learned counsel for the appellant has argued that the learned Trial Court has disbelieved the eye‑witnesses of the occurrence and also has not relied upon the witnesses of recovery and acquitted the co -accused Rab Nawaz and Ghulam Jillani. Khan Muhammad appellant has only been convicted on his own statement recorded under section 342, Cr.P.C., and has been sentenced to 10 years R.I. It has been argued that the exception available in old law, of grave and sudden provocation now is available in the exceptions of section 300, P.P.C. (In this regard he has referred to PLD 1996 SC 274 relevant page is 290). The appellant has stated in his statement that he committed the murder of Muhammad Ramzan and Mst. Kalsoom under grave and sudden provocation as he lost control over himself while seeing both the deceased in compromising position in a room of his Dera. Learned counsel has also referred the report of Chemical Examiner in which the swabs of Kalsoom were found stained with semens, when admittedly her husband was away from the home. The learned counsel has also argued that after discarding the evidence of prosecution, while convicting the accused on mere his statement under section 342, Cr.P.C., the sentence is always awarded not more than 7 years but in the present case 10 years' R.I. is too harsh, particularly keeping in view the age of the appellant who was 75 years old at the time of commission of offence. The learned counsel has referred to Munir Ahmed v. The State (1994 SCMR 80) and Maqsood Ahmad v. The State (1995 SCMR 359). In the earlier case the sentence of six years, already undergone by the appellant, was considered sufficient while in the later case sentence was reduced to 7 years, when the appellant was convicted mere on his own statement, after disbelieving the prosecution evidence. It is further argued that since it was immoral act of the deceased persons, therefore, imposition of fine is not legal and proper.

8. Learned counsel for the complainant has opposed the acceptance of appeal and has argued that it is not the act of an old man of 75 years alone. The dead bodies were found on separate cots. It is also admitted fact that gun was stated to be hanging on the Wall inside the room and Muhammad Ramzan being a young man could retaliate easily and with the help of Kalsoom could over power the old man if he would have been a single accused in the case. It has been maintained by him that circumstances show that the offence has not been committed in the manner as has been explained by the accused. The dead bodies were found in a room of the accused appellant, therefore, it was for him to explain the death of the deceased persons. Learned State counsel has supported the impugned judgment.

9. I have considered the arguments of the learned counsel and have gone through the record.

10. It is not denied that Muhammad Afzal husband of Kalsoom was not at home when the offence was committed and the Report of Chemical Examiner in which the swabs were found stained with semens clearly shows that Zina was committed prior to the occurrence. The testimony of the eye witnesses has rightly been discarded by the learned Trial Court being unnatural witnesses. The conviction has been passed only on the statement of the accused who clearly admitted for causing the death of the deceased persons in the state of grave and sudden provocation. P. W.6 who is the complainant does not claim to be the eye witness of the occurrence while P.W.7 and P. W .8 who claimed to be the eye‑witnesses, their testimony do not inspire confidence as Muhammad Ramzan P. W.5 stated that he was informed by Muhammad Feroze P.W.7 and Muhammad Sher P.W.10 about the occurrence but they had not told the names of the accused and the manner in which the murders were committed. The eye‑witnesses have not been nominated in the F.I.R., therefore, the prosecution story appears to be concocted and after thought. The prosecution has failed to prove its case on the basis of evidence. The conviction can be passed even on mere statement of the appellant. The impugned judgment does not suffer from any infirmity, or lacuna calling for interference by this Court in appeal which is dismissed.

11. But following the principles laid down in 1994 SCMR 80 and 1995 SCMR 359 (supra) the sentence awarded to the appellant is reduced to 7 years R.I. Since the cause of this incident was an immoral act, punishment of fine is set aside. The benefit of section 382‑B, Cr.P.C., will be available to the appellant. The Revision Petition No.461 of 1996 is dismissed for above said reasons. Order accordingly. Q.M.H./M.A.K./K‑105/L