P L D 1997 Lahore 213 (PLP)

SH. IJAZ NISAR, J.

Zulfiqar son of Shamir Khan 22 was tried for the murders of his sister Mst. Shamshad Bibi deceased and her paramour Shaukat Ali deceased. By judgment dated 17-1-1993, learned Additional Sessions Judge, Chiniot convicted him under section 302, P.P.C. and awarded him death penalty as Qisas on two counts.

2. Challenging his conviction, he has filed this appeal while the learned trial Court has made a reference for the confirmation of his death sentence. Both the matters are being disposed of together by this judgment.

3. The prosecution case, in brief, is that on the night between 16th and 17th May, 1991, Hoat Khan P. W. 2 and Manzoor Hussain P. W. 3 were asleep in front of the house of the former. At about 2-00 a.m. they woke up and on an alarm, coming from the house of Shamir Khan father of the appellant 'and rushed towards that place and saw Zulfiqar appellant giving brick blows to Mst.Shamshad Bibi deceased and Shaukat Ali deceased who were lying on a cot in a semi-naked condition. Declaring that he could not tolerate immoral act of the two deceased he left the spot. Mst. Shanmshad Bibi and Shaukat Ali died instantaneously on the spot. 3-A. The motive for the occurrence was that Shaukat Ali and Mst. Shamshad Bibi deceased were cousin inter se. They had developed illicit relations with each other and were lying together in a semi-naked condition on the fateful night when they were surprised by Zulfiqar appellant who killed both of them with a brick.

4. Manzoor Hussain P.W. 3 proceeded to Police Station Bhowana, District Jhang and lodged the F.I.R. Exh.PK on 17-5-1991 at about 5-00 a.m. The distance between the spot and the Police Station, being 12 miles. After recording the F.I.R., Nazir Ahmad P.W. 7 proceeded to the place of occurrence and prepared the injuries and inquest reports of the two deceased and sent their dead bodies to the mortuary for autopsy. He took into possession shirt P.4, Chaddar P.5 of Mst. Shamshad Bibi deceased which were lying under her pillow. He arrested the appellant on 25-5-1991 and secured brick P.6, Bunyan P.7 and Chaddar P.8 at his instance. He got prepared the site plans Exh.PA and Exh.PA/I from the Draftsman and after completing investigation, challaned the appellant.

5. Dr. Muzaffar Ahmad P.W. 4 conducted an autopsy on the dead body of Mst. Shamshad Bibi (25) on 17-5-1991 and found the following injuries thereon:

(i) A lacerated wound 10 c.m. x 4 c.m. on the top of skull. Skull bone was fractured and brain matter was coming out of the wound. (ii) A lacerated wound 4 c.m. 4 x c.m. on the right of forehead. Brain matter had come out of this wound as well. (iii) A contused wound 5 c.m. x 8 c.m. on the right cheek, right misilla was depressed and fractured. (iv) A lacerated wound 2 c.m. x 1/2 c.m. on the upper lip and nose. Nosal bone was fractured. Face was covered with lot of blood. Skull was fractured and hymen had old tears. Vagina admitted three fingers. He took her vaginal swabs and sent them to the Chemical Examiner who found them stained with semen vide report Exh.PQ.

6. The same Doctor also conducted post-mortem examination on the dead 'body of Shaukat Ali deceased (28) and found the following injuries:

(i) A lacerated wound of 3 c.m. x 1/2 c.m. x bone deep on right side of skull. Skull bone was fractured. (ii) A lacerated wound 2-1/2 c.m. x 1/2 c.m x bone deep on the top of skull. (iii) A lacerated wound of 9 c.m. x c.m. x bone deep on the top of skull behind injury No.2. (iv) A lacerated wound 2 c.m. x 2 c.m. x bone deep on the back of skull (v) A lacerated wound 2 c.m. x 1/2 c.m. on the lower lip and chin mendable was fractured at the chin. (vi) Nose was depressed and nosal bone was fratcured (vii) A contusion 3 c.m. x 2 c.m. on the top of right shoulder (viii)A lacerated wound 2 c.m. x 1/2 c.m. x bone deep on the right eye brow. (ix) A contusion 8 cm. x 3 c.m. on the right cheek Skull bone was fractured on the top and front. Brain was injured on the front

7. Cause of death of the two deceased was shock haemorrhage and injuries to the vital organs. All the injuries were caused by blunt-edged weapon and were anti-mortem.

8. To prove its case, the prosecution examined seven witnesses. Hoat Khan P.W. 2 and Manzoor Hussain P.W. 3 were examined as eye-witnesses. Hoat Khan is father of Shaukat Ali deceased and uncle of Mst. Shamshad Bibi deceased. According to him, he was asleep alongwith Haq Nawaz (not produced) and Manzoor Hussain P.W. 3 outside his Ahata and on hearing an alarm, rushed to the Ahata of Shamir Khan, the father of Zulfiqar appellant and saw the appellant giving brick blows to the two deceased. When he alongwith his companions tried to intervene the appellant threatened them with dire consequences. According to him, Mst. Shamshad Bibi deceased was married to his son Shaukat Ali deceased since about two years before the occurrence, and it was an exchange marriage. Manzoor Hussain P.W. 3 complainant in the case did not support the prosecution and was declared hostile. According to him, he simply informed the police that Shaukat Ali and Mst. Shamshad Bibi were lying dead. He denied the marriage between Mst. Shamshad Bibi deceased and Shaukat Ali deceased. In the cross-examination, he stated that Hoat Khan P.W.2 was not present on the spot on the night of occurrence. The other witnesses examined by the prosecution were of formal nature. Haq Nawaz P.W. mentioned as an eye-witness in the F.I.R. was given up as having been won over.

9. The appellant denied the prosecution allegations as also the marriage between his sister Mst. Shamshad Bibi deceased and Shaukat Ali deceased. He attributed the case to enmity but did not adduce any evidence in defence, nor did he himself appear under section 342(2), Cr.P.C. as witness.

10. Relying the evidence of Hoat Khan P.W. 2, the learned trial Court convicted and sentenced the appellant, as described above but, however, admitted the story of the motive as set up in the F.I.R. to be correct and observed that from the material on record, it appeared that the appellant had lost control over himself on seeing his unmarried sister sleeping with Shaukat Ali deceased.

11. Challenging the conviction and sentence of the appellant, learned counsel appearing on his behalf contends that solitary statement of Hoat Khan P.W.2, father of Shaukat Ali deceased in the absence of any corroboration was not sufficient to bring home guilt to the appellant, particularly in the wake of the statement of Manzoor Hussain complainant denying his presence at the spot.

12. Learned counsel appearing on behalf of the State submits that the prosecution case stands established from the circumstances of the case. The presence of the two dead bodies in the house of the appellant coupled with the motive set up in the F.I.R. proves the prosecution version.

13. After hearing the learned counsel for the parties and perusal of the record, our observations are that the mere relationship of Hoat Khan with A Shaukat Ali deceased will not be sufficient to discard his testimony, in toto. According to him, his son had been married to Mst. Shamshad Bibi about two years prior to the occurrence but this fact doesn't stand established firm any material on record. Had it been so, there would have been no reason for the appellant to have killed his own sister. On the other hand, the evidence on record establishes that she was unmarried and the presence of semen on her vaginal swabs goes a long way to establish the prosecution version. Although the appellant has denied to have killed the two deceased under grave and sudden g provocation, the circumstances show otherwise. We are reminded of the saying that men may lie but the circumstances do not. ,

14. From the material on record, it is fully established that the two deceased were maintaining illicit intimacy and were done to death by the appellant under grave and sudden provocation while engaged in the sexual act.

15. The events, referred to above, fully bring home guilt to the appellant. So far as the question of the offence committed by him is concerned, we are of the view that instead of section 302, P.P.C. it would more appropriately fall under section 304, Part I, P.P.C. as the appellant was deprived of control over p his passions on seeing his real sister engaged in the sexual act with her paramour right in his house. We, therefore, alter his conviction from section 302, P.P.C. to section 304, Part I, P.P.C. and think that the ends of justice would be met ii he is sentenced to the period of imprisonment already undergone by him because he is stated to be behind the bars since May, 1991. We order accordingly ana dispose of the appeal in the above terms. He shall be released from the jail, provided he is not required in any other case. 16 The Murder Reference is answered in the negative N.H.Q./Z/20/L Order accordingly