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Criminal Appeal No. 299 of 1970, decided on 26th October, 1983.

---S. 304, Part I--Grave and sudden provocation--Accused murdering his own daughter and her paramour--Prosecution version that accused called male deceased to his house after lsha prayer and murdered him and female deceased with help of co-accused--Accused taking plea that he murdered both deceased with help of his guests after finding both in a compromising position at night in his room--Trial Court after, disbelieving evidence of prosecution witnesses acquitting co-accused and convicting accused under S. 304, Part I on basis of his own admission- Prosecution version that male deceased was called on a pretext and was last seen in accused's house, held, was rightly found to be not inspiring confidence, and defence plea appearing to 'be more probable- -Presence of semen on private parts of male deceased corroborating defence version--Explanation of accused that he murdered young deceased persons with help of two guests, found to be reasonable--Benefit of grave and sudden provocation, held, rightly given to accused by trial Court.

---S. 304, Part I--Trial Court disbelieving evidence of prosecution witnesses and convicting accused under S. 304, Part I, P.P.C. or basis of his own admission--No appeal or revision filed by State or complainant against said judgment--Going into detail about merit or demerits of testimony of said witnesses, held, would be idle--Conclusion drawn about worth of said evidence by trial Court, whether right or wrong, held further, would have to be accepted--Finding of trial Court upheld in circumstances.

---S. 304, Part I--Accused murdering his daughter and her paramour under sudden and grave provocation--Accused being an aged father was already much wronged by his own daughter and an unsympathetic neighbour, male deceased=-R.I. for five years, being excessive sentence reduced to already undergone in circumstances.

Rana Abdul Majid for Appellant.

Khalid Hussain for the State.

Date of hearing: 26th October, 1983.

Muhammad Ali son of Shahabal (50), caste Hameeroka, resident of village Naburara, Tehsil hafizabad, District Gujranwala, has preferred this appeal against his conviction under section 304, Part 1, P P.C. as recorded by Mr. Abdullah Jan Mirza, Sessions Judge, Gujranwala on 3-4-1970 awarding him R.I. for five years thereunder.

2. The allegation was that he alongwith five others had strangulated to death on the night between 22-23111-1967 not only his own .daughter but also her paramour Muhammad Rafique by having called him on a pretence to his house after Isha prayer. They were accordingly all charged under section 302/149, P.P.C. but pleading not guilty thereto, A they claimed trial, as a result of which, while others were acquitted, the appellant was convicted more or less on his own admission. He showed that he found both the deceased in compromising position late at night in his room when he came back from his Dera after entertaining his two guest's and that they helped him to kill them under grave and sudden provocation.

3. The prosecution case, instead, was that earlier the girl was abducted by the male-deceased, was restored to the appellant-father who married her to one Nazir, but she continued. to have liaison with the paramour who was the appellant's next door neighbour. On the night of the occurrence, the informant Mian Khan called on the deceased' Muhammad Rafique at about Isha time and finding that he was sitting with the appellant in his house, followed him to see that he was present there alongwith the appellant and his co-accused. He wanted to talk to him but was told to wait till he could come back. He carne out in the lane in the moonlight. Suddenly he noted brisk hustle-bustle created by the rushing of the appellant arid his companions. P-.Ws. Sharif, Muttali, Methaila and Muhammad also saw them rushing out chaotically. A child in the appellant's house cried out attracting all the P.Ws. who found the lady and the paramour lying murdered in the room. The informant Mian Khan went to the police where tie lodged the report.

4. The post-mortem conducted on the two deceased showed that they had been strangulated to death. Some traces of semen were noted on the tip of the penis of the male deceased.

5. The evidence of the informant (P.W. 5) as other P.Ws. like Muttali, Methai.ia, Muhammad and Mst. Zohran Bibi, the widow of the C deceased Rafique, was not believed by the learned Sessions Judge as it did not ring true when assessed iii the entire milieu. Since there is no corresponding appeal or revision, it is idle to go in detail about the merits or demerits of the testimony of these witnesses. Whether, right or wrong, the conclusion drawn about its worth by the learned Sessions ID Judge will have to be accepted. The plea of the appellant conversely was accepted. He killed his daughter, of course alongwith her paramour in his own house during night time. The prosecution version that the male-deceased was called on a pretence rind war: last-rHeen in the E appellant's house in the company of his co-accused was rightly held not inspiring. If the background was that he abducted the girl earlier.; even married her and later divorced her, lie would have been doubly cautious to go willingly in the house of the appellant at his behest. On the other hand, finding them both in the appellant's room at odd hours of the night when he came back from his distant Dora appeared more probable. The presence of semen on the private parts of the male deceased was an indication of his indulgence, for which purpose he appeared to have had stolen an opportunity in the darkness of the night. The deceased-lady though married was still living in the house of her father, next door to that of her paramour, perhaps only to consummate their evil relations and, therefore chances, of surprising them by the appellant sounded more realistic than hi,, having been called on a pretence to the appellant's house. Obviously, the appellant alone could not kill two young persons. He explained that he had to i avail the services of his two guests whom he had to entertain at his Dera till late in the evening. This is how the occurrence seems tai yield the benefit of sudden and grave provocation to the appellant. I quite agree with it. The appellant who was an aged father was already much wronged by his own daughter and an unsympathetic neighbour like the deceased Muhammad Rafique. R.I'. for five years was apparently excessive but counsel was content if it is reduced to the period already undergone which in this case was somewhat 2 years. It bore an adequate proportion to the sentence of five years' R.I. imposed upon him. I accordingly reduce the same to the R.I. already undergone. With this modification in the sentence, the appeal is dismissed.

H . A . K .

Appeal dismissed.

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