MAZHAR HUSSAIN Versus State

ORDER

KAZIM ALI MALIK, J .--Murder Reference No.500 of 2002, Criminal Appeal No.1275 of 2002 and Criminal Appeal No.16-J of 2003 have arisen out of the judgment dated 20-6-2002 passed by the learned Sessions Judge, Toba Tek Singh in a case F.I.R. No.362, dated 28-2-2000 of Police Station Rajhana and we find it convenient to dispose of all these interconnected matters by this single judgment.

2. Lal Din and Allah Bukhsh, son of Muhammad Bukhsh, Mazhar Abbas, Azhar Abbas, sons of aforesaid Lal Din and Mst. Beebo, wife of afore-mentioned Allah Bukhsh, caste Kumhar, residents of Chak No.256 G.B. District Toba Tek Singh were challaned to the Court of Session in the above said case to stand trial on the charge of murder. Before inception of trial, Mst. Beebo, accused died and trial to her extent stood abated. Mst. Tasleem Kauser, (20/22) daughter of Lal Din appellant, Muhammad Ashraf, (40/42) husband of maternal aunt of Mst. Tasleem Kauser and Mst. Sahiban, (55/60) mother of aforementioned Muhammad Ashraf suffered death in this happening on the night between 27/28-8-2000 inside a room of the house of Allah Bukhsh, accused and his wife Mst. Beebo (since dead) located within the area of village Phaloor, six miles away from Police Station Rajhana, District Toba Tek Singh and was reported to the police station on 28-8-2000 at 7-15 a.m. by Muhammad Aslam, complainant, P.W.8, resident of Chak No.124 SB, District Sargodha.

3. On conclusion of trial, Mazhar Abbas, Azhar Abbas and their father Lal Din, appellants were convicted under section 302(c), read with section 34, P.P.C. on two counts for having committed Qatl-i-Amd of Muhammad Ashraf and Mst. Tasleem Kauser under grave and sudden provocation and each one of them was sentenced to 20 years rigorous imprisonment on two counts with a direction to pay Rs.30,000 compensation to the legal heirs of Muhammad Ashraf, deceased. They were also convicted under section 302(b) read with section 34 of the P.P.C., for having committed Qatl-i-Amd of Mst. Sahiban Bibi. Mazhar Abbas, appellant was sentenced to death whereas his father Lal Din and brother Azhar Abbas, appellants were sentenced to imprisonment for life each and with a direction to pay Rs.30,000 compensation to the legal heirs of Mst. Sahiban Bibi deceased. The substantive sentence of imprisonment on two counts was ordered to run concur rently with the benefit of section 382-B, Cr.P.C. However, Allah Bakhsh, accused was acquitted of the charge.

4. The prosecution case set up in the F.I.R. Exh. P. G. in brief, is that Muhammad Ashraf (40/42) resident of Chak No.124 SB, District Sargodha was brother-in-law of Lal Din, appellant being husband of a real sister of his wife. On 26-8-2000 Mazhar Abbas, appellant, a real sister's son of the wife of Muhammad Ashraf, deceased reached house of the later located in Chak No.124 SB, District Sargodha and informed him about serious ailment of his mother Mst. Sakina. Upon receiving the above-said information, Muhammad Aslam, complainant, Muhammad Ashraf, deceased, his mother Mst. Sahiban and Sher Muhammad, (given up P.W.) along with Mazhar Abbas, appellant left for village Phaloor, District Toba Tek Singh and reached there in the evening. They inquired about the health of Mst. Sakina Bibi, took evening meal with her and then slept in the house of Allah Bakhsh (acquitted accused) situated close to the house of Lal Din, appellant. At about 12-15 a.m. Lal Din, appellant armed with .12 bore carbine Mazhar Abbas, appellant having repeater gun .12 bore, Azhar Abbas, appellant possessed with .12 bore gun, Allah Bakhsh (acquitted accused) and Mst. Beebo (since dead) came there while dragging Mst. Tasleem Kauser (daughter of Lal Din and sister of Mazhar Abbas and Azhar Abbas, appellants). All the above-named accused persons pushed Mst. Tasleem Kauser inside a room. Thereafter Mazhar Abbas and Azhar Abbas, appellants caught hold of Muhammad Ashraf, deceased and took him inside the room. Allah Bukhsh (acquitted accused) and his wife Mst. Beebo (since dead) removed Shalwars of Mst. Talseem Kauser and Muhammad Ashraf forcibly. Mazhar Abbas, appellant fired with his gun striking Muhammad Ashraf on his face followed by a fire shot by Lal Din, appellant which landed on the back of hand of Muhammad Ashraf, upon which he fell down on the cot. Azhar Abbas, appellant fired hitting his sister Mst. Talseem Kauser on her head. Subsequent to this, all the above-named accused persons caught hold of Mst. Sahiban who was present there and had been raising alarm since inception of the occurrence. They removed her to the courtyard of the house, where Mazhar Abbas, appellant fired hitting her face followed by a shot fired by Azhar Abbas appellant, which landed on her head. The P.Ws. unsuccessfully chased the assailants and also raised alarm, which attracted Mushtaq Ahmad and Muhammad Amin, P.Ws. who also witnessed the occurrence. Motive for the occurrence was that the accused persons cast doubt of illicit intimacy of Muhammad Ashraf, deceased with Mst. Tasleem Kauser, deceased.

5. On 29-8-2000, Dr. Ghazala Shaheen, P.W.13 conducted post-mortem examination on the dead body of Mst. Tasleem Kauser, (20/22) unmarried daughter of Lal Din (appellant) and observed a fire-arm grazing wound 13 c.m. x 11 c.m. extending from central part of the forehead to the frontal part of the head with fracture of frontal bone with laceration of the brain matter. On dissection scalp and skull were found injured. Membrane and brain were also injured. The cause of death was haemorrhage and neurogenic shock due to injury to the brain. The above-said injury was sufficient to cause death in the ordinary course of nature, which was ante-mortem and by fire-arm. Probable time, which elapsed between the injury and death, was immediate and between death and post-mortem examination was between 30/40 hours. The post-mortem examiner also took vaginal swabs of the examinee for analysis. The P.W. recorded post-mortem report Exh.P.M. in this regard.

On the same day, P.W.13 made autopsy on the dead body of Mst. Sahiban Bibi and found a fire-arm entry wound 2 c.m. in diameter on the left side of head 6 c.m. away from the left ear making an exit wound of 10 c.m. x 8 c.m. on the right side of face extending from mouth angle to right ear lobule with fracture of right mendible, right manillary bone, of anterior crinal fossa of skull, left parietal bone with laceration of brain matter. Blackening was present around the entry wound. The post-mortem examination opined that Mst. Sahiban died of haemorrhage and neurogenic shock due to severe bleeding and damage to the brain. The above-said injury was ante-mortem by fire-arm and sufficient to cause death in the ordinary course of nature. Probable time, which elapsed between injury and death was immediate and between death and post-mortem examination was 30 to 40 hours. The doctor confirmed that Mst. Sahiban suffered death by violence.

6. On the same day, Dr. Raja Nasr Iqbal, P.W.14 conducted post-mortem examination on the dead body of Muhammad Ashraf, clad in shirt only with mouth and eyes closed. The post-mortem examiner noted the following injuries on the dead body.

(i) Fire-arm entrance wound 4 in number each measuring 1 c.m. x 1 c.m. in an area 16 c.m. x 5 c.m. on left side of face with blackening and inverted margins.

(ii) An exit wound 3 c.m. x 2 c.m. on right side of head 3 c.m. above the right ear.

(iii) An exit wound 3 c.m. x 2 c.m. on right side of head 2.5 c.m. above injury No.2.

(iv) A fire-arm entrance wound 2 c.m. x 2 c.m. on palmer side of right hand with exit wound 22 c.m. x 4 c.m. on dorsal side of right hand cutting the blood vessels and tenders.

On dissection, skull was fractured and brain matter was damaged making an exit wound on the right side of the head 3 c.m. above the right ear. The post-mortem examiner found two pellets; one from the left mendible bone and the other from brain matter which were sealed. The P.W. recorded his report Exh.P.T. and found that Injury No.1 had caused damage to the brain resulting in death of Muhammad Ashraf. The injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem by fire-arm. Time between injuries and death was immediate and between death and post-mortem examination was 24 to 36 hours.

7. Javaid Ali, Sub-Inspector, P. W.16 recorded F.I.R., Exh. P. G. on 28-8-2000 at 7-15 a. m. about the occurrence which took place on the preceding night at 12-15 a.m. Thereafter he reached the spot (house of Allah Bakhsh, acquitted accused) and examined the dead bodies of Mst. Tasleem Kauser and Muhammad Ashraf lying naked on a cot and that of Mst. Sahiban. He prepared injury statements and inquest reports Exh.P.O., P.R. and P.U. & Exh.P.N., P.S. and P.V. respectively about the above-said bodies and dispatched the same to the dead house for post-mortem examination. On asking of the Investigating Officer, Shahid Nadeem, photographer, P.W.2 snapped the naked dead bodies and produced photographs (P.7 to P.10), which were taken into possession by the investigator under memo. Exh. P. D. Blood-stained earth from the place of murder had been secured and sealed by means of memo. Exh.P.L. Three crime empties (P.25 to P.27) were taken into possession from the place of murder of Mst. Tasleem Kauser and Muhammad Ashraf under memo. Exh.P.K. while two crime empties (P.23 and P.24) lying out of the room, were seized vide memo. Exh. P. K. Blood-stained cot with blood-stained bed sheet on which Mst. Talseem Kauser and Muhammad Ashraf were killed and three pairs of shoes (P.15 to P.22) of the deceased persons were taken into possession by the investigator vide memo. Exh.P.J. The Investigating Officer found Shalwar of Mst. Tasleem Kauser, deceased (P.13) and that of Muhammad Ashraf, deceased (P.14) lying near the cot, which were secured through memo. Exh. P.I. After post-mortem examination, the escorting constable Khalid Hussain, P.W. produced the last worn clothes of the three deceased persons, sealed phial said to contain vaginal swabs of Mst. Tasleem Kauser deceased and a sealed phial said to contain pellets which were taken into possession vide memo. Exh. P. A. and Exh. P. B. The Investigating Officer arrested the accused persons and challaned them to Court after required completion of investigation.

8. At the commencement of trial, the challaned accused were charged under section 148, P.P.C. for having formed an unlawful assembly, which resulted in violence and under section 302 read with section 149, P.P.C. on three counts for having committed Qatl-i-Amd of Mst. Tasleem Kauser, Muhammad Ashraf and Mst. Sahiban in prosecution of the common object of that unlawful assembly. The challaned accused denied and dismissed the charge and claimed trial.

9. The prosecution examined 16 P.Ws. in all in support of the charge out of whom Muhammad Aslam, complainant, P.W.8 is brother-in-law of Muhammad Ashraf, deceased being husband of his sister. He lodged the F.I.R. at 7-15 a. m. on 28-8-2000 about the occurrence which took place on the preceding night at 12-15 a. m. claiming to be an eye-witness. Mushtaq Ahmad, P.W.9 also claimed to have witnessed the occurrence. Khadim Hussain resident of Chak No.124 SB, District Sargodha entered the witness-box as P.W.10 and deposed about the motive. He attested the recovery memos. by means of which Shaiwars of Muhammad Ashraf and Mst. Tasleem Kauser, deceased were seized. He also attested the recovery memo. in respect of the crime empties. Zafar Abbas, P.W.11 deposed that his father Muhammad Ashraf, deceased and his grand mother, Mst. Sahiban left or Phaloor with Mazhar Abbas, appellant on 27-8-2000 after receiving an information that his mother Mst. Sakina had fallen ill. He further deposed that later on he received telephonic message from Muhammad Aslam, complainant that his father and grandmother had been murdered. Muhammad Amin, P.W.12 is a co-villager of the accused persons. He made his statement before the police on 30-8-2000 about the occurrence, which took place on the night between 27/28-8-2008. He claimed that on 27-8-2000 he along with Hafeez-ur-Rahman (given up P.W.) reached the house of his friend Lal Din (appellant) to see his ailing wife and overheard that Lal Din had been asking his sons, Mazhar Abbas, Azhar Abbas, his brother Allah Bakhsh and his wife Mst. Beebo to kill the guests who had come from Sargodha along with his (Lal Din's) daughter Mst. Tasleem Kauser. The P.W. further deposed that he remained with Lal Din and his wife for 5/10 minutes, inquired about her health and then returned home. Saeed Akhtar, S.H.O., P.W.15 also partly investigated this case. On 20-9-2000. Mazhar Abbas, appellant led to the recovery of repeater gun .12 bore (P.11) along with its license (P.12) which were taken into possession vide memo. Exh. P. H.

10. Excepting Mazhar Abbas, rest of the accused persons denied their presence at the spot at relevant time and their participation in the occurrence. However, Mazhar Abbas, appellant came forward with specific counter-version. In an answer to a question Mazhar Abbas, appellant put forward his defence version as under:--

"I am innocent. The case against me as alleged by the prosecution is false and fabricated one. Factual position is that I am serving Army man and was on annual leave on the day of occurrence. Muhammad Ashraf, deceased was my real Khalu. His daughter Mst. Aasia was engaged to me whereas in exchange, my real sister Mst. Tasleem Kauser, deceased was engaged to his son Zafar Abbas (P.W.11).

On the fateful night, I had returned from Sahiwal District Sargodha where I had gone to see my cousin, Ghulam Rasool. Reaching home, I found none of my family members present except Mst. Khatoon Bibi, my paternal grandmother. On query she told me that my father Lal Khan, brother Azhar Abbas, uncle Allah Bakhsh and mother Mst. Sakina had taken my aunt Mst. Beebo co-accused since dead to Toba Tek Singh for treatment, as she being the chronic patient of cancer had suddenly became seriously ill. She further told that Muhammad Ashraf and his mother Mst. Sahiban, both deceased had come in connection with fixing the date of our marriages, and were present in the house of my co-accused Allah Bakhsh. I proceeded to house of Allah Bakhsh to see them. I heard music on tape-recorder and found the light on inside the room. The door was closed but not bolted as the operative part of the bolt was not in proper order. I opened the door and found both Muhammad Ashraf and Mst. Tasleem Kauser, deceased committing Zina with each other. The shameful scene caused me grave and sudden provocation. I lost my self-control and it prompted me to use my licensed repeater .12 bore gun, which I was carrying with me. Under the impulse of Ghairat and family honour, I could not restrain myself from ruthlessly firing at them resulting in the instantaneous death. Four close shots had hit Muhammad Ashraf, one on his right hand and other on left side of his face. One shot had hit Mst. Tasleem Kauser, deceased on her forehead upwards to her head. In the meantime, I do not know that how and when Mst. Sahiban had suddenly come in between and lay herself on Muhammad Ashraf, deceased. A fire incidentally hit her too on right side of her face resulting her instantaneous death. I left all the three dead bodies laying on one and the same cot inside the room, which subsequently the police with mala fide intention managed to shift the dead body of Mst. Sahiban to the courtyard just to change the venue of occurrence to her extent. Immediately after the occurrence, I, at my own, along with the crime weapon i.e. my repeater .12 bore gun and its license proceeded to Police Station Rajana where I surrendered myself before the law. I disclosed the actual whole story as stated above to the Sub-Inspector (Investigating Officer) who instantly arrested and put me in the lock up and took my gun and license thereof in his possession. However, the Investigating `Officer with mala fide intention and just to prove his efficiency showed me in police papers as to have been arrested after a few days. The fake recovery of my gun and licence thereof was allegedly shown to have been effected after further delay on 10/12 days. In the morning, Lai Khan along with Allah Bakhsh and Azhar Abbas, co-accused appeared in the police station as asked the Sub-Inspector (Investigating Officer) to register a case, who arrested them also and put them in the same lock-up.

I honestly and voluntarily admit that I am all alone responsible for the incident. I acted only in defence of my family honour, under grave and sudden provocation and due to my Ghairat. My co-accused Lal Khan, Azhar Abbas, Allah Bakhsh and Mst. Beebo, since dead, were not present on the spot at the time of occurrence and none of them had participated in the occurrence in any manner whatsoever.

The present case is totally false fabricated and concocted by the prosecution in connivance with the Investigating Officer who registered and investigated the case malafidely and dishonestly under the influence and pressure of the complainant party, which had full practical and effective support of PAF officials and local adversaries of our family. None of the P.Ws. were present at the spot at the time of occurrence, nor anyone of them witnessed the occurrence. It was an un-witnessed occurrence and P.Ws. being planted ones, have falsely deposed against me and my co-accused as being interested as well as inimical towards me and my family."

11. This is a case of version and counter-version. We, therefore, proceed to examine the counter claims in the light of available evidence by placing them in juxtaposition.

Muhammad Aslam, complainant, P.W.8 deposed that on 26-8-2000 Mazhar Abbas, appellant reached Chak No.124 SB, District Sargodha and took him besides Muhammad Ashraf, deceased and his mother Mst. Sahiban deceased, to village Phaloor, District Toba Tek Singh deceitfully on the pretext that his mother had fallen ill. The P.W. further claimed that on the night between 27-/28-8-2000 he along with the above-named deceased persons slept in the house of Allah Bukhsh (acquitted accused) when the appellants came there while dragging Mst. Tasleem Kauser and that within his view, the Shalwar of Mst. Tasleem Kauser and that of Muhammad Ashraf were removed and they both were pushed inside a room where they were killed. It was the prosecution case supported by the P.Ws. that after killing Muhammad Ashraf and Mst. Tasleem Kauser inside the room the appellants came out and murdered Mst. Sahiban in the courtyard.

On the other hand Mazhar Abbas, appellant put forward his defence version to the effect that on the fateful night he found his unmarried sister, Mst. Tasleem Kauser missing; that he reached the house of his uncle Allah Bakhsh in search of her and found Mst. Tasleem Kauser and Muhammad Ashraf in compromising position inside the room upon which he lost self-control and killed both of them under grave and sudden provocation. The appellant further explained that Mst. Sahiban physically intervened in order to save her son Muhammad Ashraf when she was also hit.

12. The learned counsel for the appellants contended that Muhammad Aslam, P.W.8 and Mushtaq Ahmad, P.W.9 were not present at the spot at relevant time nor they witnessed the occurrence and that the Investigating Officer introduced them as the eye-witnesses dishonestly. The learned counsel supported his argument with reference to cross-examination on the two witnesses coupled with attending circumstances of the case. On the other hand the learned Law Officer supported the impugned conviction and sentence with the plea that Muhammad Aslam, P.W.8 was not inimical towards the appellants being closely related to both the sides and that Mushtaq Ahmad, P.W.9 being co-villager of the appellants, his presence at the spot at relevant time should not be doubted.

13. Now we propose to scrutinize, examine and analyse the evidence on record in order to arrive at the truth. We take up motive part of the case first. Muhammad Aslam, complainant alleged in the F.I.R. (Exh.P.G.) and also deposed at trial that the appellants cast doubt of illicit intimacy of Muhammad Ashraf, deceased with Mst. Tasleem Kauser, deceased and that they abused Muhammad Ashraf, deceased 2/3 times before the occurrence and also extended life threats. Here we would say 1-hat the motive set up in the F.I.R. and adopted by the complainant at trial has demolished his claim to the effect that one day before the occurrence Muhammad Ashraf, deceased had accompanied Mazhar Abbas, appellant to the residential village of the latter in order to see his ailing mother. Had Mazhar Abbas, appellant doubted illicit intimacy of his unmarried sister Mst. Talseem Kauser, deceased with Muhammad Ashraf, deceased and had he extended life threats to him 2/3 times before the occurrence, the deceased would not have chosen to accompany him in the alleged manner. Similarly, Mazhar Abbas, appellant was not expected and supposed in the normal course of events to extend invitation to the paramour of his sister. We are, therefore, of the view that the motive part of the case is not believable.

14. Admittedly, the mother of Mazhar Abbas, appellant and the wife of Muhammad Ashraf, deceased are real sisters. Muhammad Aslam, complainant is brother-in-law of Muhammad Ashraf deceased being the husband of his sister. The complainant and Muhammad Ashraf, deceased were residents of Chak No.124 SB, District Sargodha. Muhammad Aslam, complainant attempted to justify his presence at the spot located within the area of village Phaloor, District Toba Tek Singh by saying that he along with Muhammad Ashraf, deceased and his mother, Mst. Sahiban accompanied Mazhar Abbas, appellant to village Phaloor in response to the information furnished by the appellant that his mother was on death bed. Although no hard and fast rules about human behaviour' are available, yet it can be safely said keeping in view the social' set up of rural Punjab that in case the mother of Mazhar Abbas; appellant had fallen ill, the wife of Muhammad Ashraf, deceased being her real sister was supposed to accompany her sister's son to inquire about the health of his ailing mother. How can we believe that real sister of the mother of Mazhar Abbas chose to stay in her house in Chak No.124 SB, Sargodha and sent her husband, Muhammad Ashraf, deceased to see her dying sister. Furthermore, Muhammad Aslam, complainant was not closely related to the mother of Mazhar Abbas, appellant. The complainant was brother-in-law of Muhammad Ashraf, deceased. There is no evidence on the file, which may show any special circumstance, which persuaded Muhammad Aslam, complainant to reach village Phaloor leaving the real sister of the ailing lady at Sargodha. At the cost of repetition we must bring on record that if Mazhar Abbas, appellant had doubted illicit intimacy of his unmarried sister with Ashraf, deceased and had he extended life threats to him, Ashraf would not have run the risk of his life by accompanying Mazhar Abbas, appellant.

15. The appellants belong to a small village of District Toba Tek Singh.' P.Ws.8 and 9 deposed that within their view the appellants brought Mst. Tasleem Kauser, deceased at the spot, removed her Shalwar and that of Muhammad Ashraf, pushed them inside a room, made them lie on a cot and then killed them. Mazhar Abbas and Azhar Abbas, appellants are real brothers of Mst. Tasleem Kauser, deceased. Lal Din, appellant is father of the two appellants and the deceased girl. Allah Bukhsh (acquitted accused) is real uncle of Mst. Talseem Kauser. We could not persuade ourselves to believe that the father, brothers and uncle of 20 years old unmarried Mst. Tasleem Kauser had removed her Shalwar. Likewise it is not acceptable and believable at all that after having removed Shalwar of Mst. Tasleem Kauser and that of Muhammad Ashraf, deceased the appellants made them lie on a cot. The P.Ws. deposed that the appellants killed three deceased persons including Mst. Tasleem Kauser, to avenge their family honour, therefore, it does not lie in their mouth to say in the same breathe that the appellants shamed their family honour and stigmatized their tribe by removing Shaiwar of their, unmarried 20 years old daughter/sister. We, therefore, disbelieve P.Ws.8 and 9 with an observation that the brothers, father and uncle of the unmarried girl were not expected to exhibit shameful behaviour of removing her Shalwar in presence of her paramour Muhammad Ashraf, deceased and the P.Ws'.

16. The P.Ws. further stated that they unsuccessfully chased the appellants. It is the prosecution case that leaving the dead bodies at the spot the appellants fled. The occurrence took place at 12-15 mid-night. The F.I.R. was lodged on the following day in the morning at 7-15 a.m. The photographer entered the witness-box and certified that he snapped the dead bodies of Muhammad Ashraf and Mst. Tasleem Kauser lying naked on one cot. The investigator noted while preparing the inquest reports that both the dead bodies were naked and their Shalwars were lying nearby. Had the P.Ws. witnessed the occurrence in the alleged manner they would not have kept the dead bodies naked till arrival of the police. The dead body of Muhammad Ashraf was without Shalwar even at the time of post-mortem examination. At the time of arguments, the learned Law Officer was not in a position to explain as to how the dead bodies of Ashraf and Mst. Tasleem Kauser were found without Shalwars lying on one cot at the arrival of Investigating. Officer when as per prosecution case the accused persons fled leaving the P.Ws, and the dead bodies at the spot. This state of affairs provides a basis to say that P.W.8 and P.W.9 did not witness the occurrence.

17. The occurrence took place within the area of Toba Tek Singh. Muhammad Aslam, complainant was the resident of District Sargodha. We have already disbelieved his presence at the spot for multiple reasons. So far as Mushtaq Ahmad, P.W.9 is concerned, his testimony is also not confidence-inspiring. He deposed that on the fateful night he was returning home after having closed his shop at bus stop Fhaloor and on the way he witnessed the occurrence, which took place inside the house of Allah Bukhsh, accused. Phaloor (Chak No.256 G.B.) is a small village. It does not appeal to reason that in a small village Mushtaq Ahmad, P.W. kept the shop open till mid-night. This is a question of common knowledge that in small villages, the shops are normally closed at or after Maghrab prayer time. Secondly, P.W.9 admitted on cross-examination that if one comes to his house from bus stop Phaloor, the spot of murder does not fall on the way. He could not give any reason, for adopting unusual route to reach his house from his shop. It is also noteworthy that Mushtaq Ahmad, P.W.9 is inimical towards the appellants. He admitted on cross-examination that Mst. Khatoon, mother of Lal Din, appellant and grand-mother of Mazhar Abbas and Azhar Abbas, appellants got registered a case F.I.R. No.221 on the charge of house trespass and theft against him besides his son, Amin Jat (given up PW.) and others. At the time of present occurrence the said case was pending against the P.W. He also admitted that before the occurrence his sister got registered a hurt case. F.I.R. No.234 at Police Station Rajhana against the appellant party in which he was cited as injured eye-witness. The P.W. further stated that a few other criminal cases were also registered between the parties, which were pending trial at the time of occurrence. Keeping in view previous enmity of P.W.9 with the appellants it is not safe to believe him.

18. Muhammad Amin, P.W.12 claiming to be a friend of Lal Din, appellant deposed that he reached his house to inquire about the health of his (Lal Din's) ailing wife and overheard that he was directing and instigating his sons to kill his daughter Mst. Tasleem Kauser and the guests who had come from Sargodha. For two reasons, we do not attach any importance to the statement of this P.W. First; the conspiracies of murder are not hatched publicly or in presence of unconcerned persons. How can we believe that Lal Din, appellant was so fool that he chose to instigate his sons loudly in presence of the P.W. Secondly, the claim of the P.W. is self-contradictory. He attempted to justify his presence inside the house of Lal Din, appellant being his family friend. It does not appeal to reason that the family friend of Lal Din, appellant chose to join hands with his enemies. We, therefore, disbelieve him.

19. For what has been stated above, we feel no difficulty in concluding without any fear of contradiction that it was an un-witnessed occurrence in which three persons suffered death at dead of night inside the house of Allah Bukhsh, acquitted accused. Muhammad Aslam, P.W.8 and Mushtaq Ahmad, P.W.9 were neither present at the spot at relevant time nor witnessed the occurrence. The prosecution introduced false version about the killing before the investigating agency as well as at trial. After coming to the conclusion adverse to prosecution case the defence version put forward by Mazhar Abbas, appellant remains in field.

20. For multiple reasons, we feel inclined to accept his defence plea. First, this is an absolute legal principle subject to no exception that after dismissing and disbelieving the prosecution case, the defence plea is to be accepted in toto without scrutiny and analysis. Secondly, the defence version is receiving support from the prosecution evidence. At the cost of repetition, we would bring on record different pieces of prosecution evidence, which support the defence plea and they are:--

(i) under the instructions of the Investigating Officer, Shahid Nadeem Photographer (P.W.2) snapped naked dead bodies of Muhammad Ashraf and Mst. Tasleem Kauser;

(ii) while preparing inquest reports about the above-said dead bodies the investigator found their Shalwars lying nearby;

(iii) the Investigating Officer and the photographer found the dead bodies naked lying on one cot; and

(iv) at the time of post-mortem examination the dead body of Muhammad Ashraf was without Shaiwar.

Thirdly, Mazhar Abbas, appellant rightly asserted that he lost self-control because it was shocking for him to see his unmarried 20 years old sister in a compromising position with Muhammad Ashraf, deceased, who was not a stranger for him. It is understandable that it was very painful for Mazhar Abbas, appellant to see the husband of his real maternal aunt in an objectionable position with Mst. Tasleem Kauser. Fourthly, Mst. Sahiban, deceased herself invited trouble when she unsuccessfully attempted to save the life of her immoral son Muhammad Ashraf.

21. In the circumstances, we are not in agreement with the learned trial Court that the killing of Mst. Sahiban would fall under section 302(b), P.P.C. Resultantly, the conviction and sentence imposed on Mazhar Abbas, appellant under section 302(b), P.P.C. are set aside. It was Mazhar Abbas, appellant and none-else who killed the three deceased persons in the manner disclosed by him in his statement under section 342, Cr.P.C.

22. In view of what has been noticed and discussed above, we allow Criminal Appeal No.1275 of 2002, set aside the conviction and sentence of Lal Din and Azhar Abbas, appellants and acquit them of the charge. They be set at liberty forthwith, if not required to be detained in any other case.

23. Killing of Muhammad Ashraf, Mst. Tasleem Kauser and Mst. Sahiban at the hands of Mazhar Abbas, appellant would attract the penal provisions of section 302(c), P.P.C. We, therefore, convict him under the aforesaid provisions of law on three counts.

24. The learned trial Court sentenced Mazhar Abbas, appellant to 20 years rigorous imprisonment on two counts with a compensation of Rs.30,000 to the legal heirs of Muhammad Ashraf, deceased. The sentences passed by the learned trial Court does not commensurate with the peculiar circumstances of the case, which left Mazhar Abbas, appellant with no other option but to kill the deceased persons under grave and sudden provocation. We, therefore, reduce the sentence of imprisonment awarded to Mazhar Abbas, appellant from 20 years rigorous imprisonment to five years rigorous imprisonment on three counts with the benefit of section 382-B, Cr.P.C. The sentence of imprisonment of three counts shall run concurrently.

25. Muhammad Ashraf, deceased was immoral of worst degree as he developed illicit intimacy with unmarried young daughter of his sister-in-law. His mother, Mst. Sahiban deceased contributed towards her own killing. She physically intervened to save the life of her immoral and characterless son Muhammad Ashraf. In the circumstances, the legal heirs of the deceased persons are not entitled to any compensation. We, therefore, set aside the order/direction of the trial Court in this regard.

26. With the above modification and amendment in the impugned conviction and sentence of Mazhar Abbas, appellant, Criminal Appeal No.16-J of 2003 stands dismissed.

27. Murder Reference No.500 of 2002 is answered in the negative. Death sentence is not confirmed.

N.H.Q./M-214/L Order accordingly.