MUHAMMAD IQBAL Versus THE STATE

1. QURBAN SADIQ IKRAM, J .‑‑ Muhammad Iqbal accused‑appellant has come up in appeal against his conviction under section 302, P.P.C. for which he was sentenced to death and a fine of Rs.5,000 (Rs. Five Thousand) only or in default one year R.I. by learned Sessions Judge, Rahim Yar Khan vide judgment, dated 5‑3‑1983 who further ordered that the amount of fine, if recovered, will be paid as compensation to the heirs of Nawab Bibi deceased.

2. The appellant having been sentenced to death, the proceedings are also before us for confirmation of his sentence.

2. The prosecution case, in brief, according to the F.I.R. Exh. P. K. is that Murid Hussain complainant and his son Ghulam Muhammad P.W. were present in their field on 27‑3‑1981 looking after gram crop. Suddenly at about 10/11 a.m. they heard noise from the side of the Dera of Sikandar. They both went there. When they were near the sugarcane field of Muhammad Iqbal, they saw Muhammad Iqbal inflicting hatchet blows to his wife Mst. Nawab Mai. On seeing them coming, the accused ran away from the spot with his hatchet. The deceased Nawab Mai, a niece of Murid Hussain complainant, died as a result of injuries received by her. Muhammad Alam (given up P.W.) reached the spot shortly thereafter and saw Muhammad Iqbal accused running away from the place of occurrence with hatchet. The motive was stated to be that Muhammad Iqbal accused suspected his wife Mst. Nawab Mai of having illicit relations with his step‑brother Khawaja Bakhsh. It is further alleged in the F.I.R. by the complainant that about six months before the occurrence, he and Muhammad Alam P.W. at the instance of Muhammad Iqbal accused had asked Khawaja Bakhsh to desist from that relationship. Leaving the dead body in the care of the residents of the village, Murid Hussain P.W. alongwith Allah Bakhsh, a brother of Nawab Mai deceased, went to Police Station Rukanpur, about eight Kilometers from the place of occurrence, in village Rangpur and lodged the F.I.R. at 2.00 p.m. on the same day which was recorded by S.I. Ali Akbar (P.W.9).

3. After registration of the case, the Police undertook investigation and after necessary formalities sent the dead body of Mst. Nawab Mai for post‑mortem examination which was conducted by Dr. Ashiq Hussain Cheema (P.W.6) on 28‑3‑1981 at 10.00 a.m. He found incised wounds on the middle of the skull, on the front of left ear, on the back of left ear, over left shoulder and under left axila. He also noted one abrasion on the back of left chest. On opening the skull, the Medical Officer found that the incised wound on the middle of skull had cut the underneath bone. He also found that the bone in front of the left ear in the temporal region had also been cut. Vertebra was normal. Miniges were found cut at the middle of skull and temporal region. The brain matter had been damaged over the temporal region, occiput and middle of skull. Skull bone and left hunerous was cut. The rest of the organs were healthy.

4. On examination of organs of generation, he found 4/5 months old dead foetus which was taken out from the uterus. The external generation organs were normal.

5. In the opinion of the Medical Officer, the death had occurred on account of head injury alone as well as collectively. The injuries on the head were sufficient in the ordinary course of nature to cause death. The time between injuries and death was immediate and between death and post‑mortem was about 20 hours.

6. The accused was arrested on the day of occurrence. At that time, he was found wearing Chadar P.4 and Shirt P.5 (both blood stained) which were got removed and taken in possession vide memo. Exh. P.D. On 28‑3‑1981, while in Police custody, he led to the recovery of blood‑stained hatchet P.6 from the Khola of his house which was taken in possession vide memo. Exh. P.E. and sealed in a parcel. Both the above memos. were prepared by Ali Akbar S.I. (P.W.9) in the presenwe of Muhammad Ramzan (P.W.5) and Hap Rasul Bakhsh (given up P.W.). The Chadar P.4, shirt P.5 and hatchet P.6 were found to be stained with human blood vide report of the Chemical Examiner P.L and that of Serologist Exh. P.M.

7. The Investigating Officer, during spot inspection took in possession Dopatta P.1, ear rings P.2 and bangles P.3/1‑3 belonging to Mst. Nawab Mai deceased from the place of occurrence in the field of Muhammad Iqbal accused. After completion of the investigation the accused was challaned.

3. The prosecution, during the trial, examined nine witnesses in all. Murid Hussain (P.W.5), an uncle of Mst. Nawab Mai deceased and his son Ghulam Muhammad (P.W.8) were examined as eye witnesses. Muhammad Alam P.W. was given up. Dr. A.H. Cheema (P.W.6) furnished the medical evidence and Muhammad Ramzan (P.W.5) witnessed the recoveries from and at the instance of the accused. He also witnessed all the recoveries from the place of occurrence during inspection of the spot. S.I. Ali Akbar (P.W.9) investigated the case. The evidence of rest of the witnesses was of formal nature.

8. The accused, when examined under section 342, Cr. P. C., made the following statement:‑

9. "On 27‑3‑1981 at 11‑00 a.m. I was cutting the sugarcane when my wife Mst. Nawab deceased crossed me and told me that she is going to her parent's house. I restrained her when she objected that 1 was stopping her due to Khawaja Bakhsh. She told me that she had illicit relations with Khawaja Bakhsh and that the baby in her womb was from Khawaja Bakhsh. She uttered that she may be divorced if I had some 'Ghairat'. Immediately on grave and sudden provocation 1 injured Mst. Nawab Bibi who later on expired. The eye‑witnesses were not present at that time. I myself went to P.S. Rukanpur. and informed the police, that I had killed my wife Mst. Nawab on grave and sudden provocation. Chadar P.4 and shirt P.5 being worn by me were blood‑stained. My hatchet P.6 was also blood‑stained. The S.I. examined today took all the three articles into his possession and took me to the place of occurrence. However, afterwards he conducted the false investigation."

10. He did not produce any evidence in defence.

11. The learned trial Judge placed reliance on the evidence of eye‑witnesses, motive, recoveries from the accused and the medical evidence and convicted the accused as stated above.

4. We have gone through the record of this case and have also heard the learned counsel for the appellant as well as the learned Assistant Advocate‑General.

12. The learned counsel for the appellant did not dispute the time and the place of occurrence. He admitted that Muhammad Iqbal killed his own wife Mst. Nawab Mai deceased. The accused in his statement under section 342, Cr. P. C. as well as learned counsel for the appellant admitted that Chadar P.4, shirt P.5 and hatchet P.6, all blood‑stained, belonged to him. It was, however, added that the accused himself had produced all these articles before the Police. The learned counsel for the appellant, however, argued that the accused was not guilty of intentional murder of Mst. Nawab Mai under section 302, P.P.C. and that at the most he could be held to be guilty of an offence under section 304 (I), P.P.C. for culpable homicide not amounting to murder as he acted under grave and sudden provocation. In support of his contentions, the learned counsel placed reliance on Muso v. The State P L D 1960 Kar. 966; Ahmad Din v. The State P T. D 1967 Lah. 649; Safdar v. The State 1975 P Cr. L J 448; Imdad Hussain v. The State P L D 1978 Kar. 521 and Rashid Shah v. The State P L D 1982 B J 69.,

13. The learned Assistant Advocate‑General did riot seriously controvert the contentions of the learned counsel for the appellant. He, however, contended that the sentence even if it is to be recorded under section 304 (1), P.P.C., should not be less than ten years.

14. We have considered the contentions of the parties. It will be noted that Muhammad Iqbal accused has not denied the killing of his wife Mst. Nawab Mai. It was pleaded by him that on the day of occurrence at about 11.00 a.m. he was cutting sugarcane from his field, Mst. Nawab Mai deceased came there and told him that she was going to the house of her parents. He objected to that to which Mst. Nawab Mai, replied that he was stopping her from going there due to Khawaja Bakhsh. She further told him that she had illicit relations with Khawaja Bakhsh and that the baby in her womb was from Khawaja Bakhsh. She further told him that she may be divorced if he had some 'Ghairat'. At this, it was stated by the accused that, he immediately on grave and sudden provocation, caused injuries to his wife. The accused was arrested by S.I. Ali Akbar (P.W.9) on the day of occurrence i.e. on 27‑3‑1981 at 6‑00 p.m. According to the accused, he had himself gone to the police station immediately after the occurrence. We find that this assertion of the accused appears to be correct and that he was not arrested at 6‑30 p.m. as stated by the Investigating Officer. Ali Akbar S.I. (P.W.9) stated that he went to the spot on the day of occurrence at 3.00 p.m. According to Murid Hussain (P.W.7) he did not accompany the police to .the spot and had reached there at 2‑30 p.m. This witness, in cross‑examination, admitted that the accused was under police arrest at the time when he reached there at about 2‑30 p.m. Similarly, Ghulam Muhammad (P.W.8) admitted in cross‑examination that the police arrived at the spot on a wagon, that his father reached the spot half an hour after the arrival of the police there and that Iqbal accused was with the police when it reached the spot for the first time. This evidence makes it abundantly clear that the accused was not arrested at 6‑30 p.m. and had himself gone to the police station after the occurrence. The motive in this case, as stated in the F. I. R. and also by the eye‑witnesses during the trial, is that Mst. Nawab Mai was having illicit relations with Khawaja Bakhsh, a step‑brother of Muhammad Iqbal accused. The place of occurrence is the field of the accused. The eye‑witnesses, admittedly reached the spot only after hearing the alarm of Mst. Nawab Mai. It was, therefore, not possible for them to say nor have they testified, as to what occurred at the spot and what talk preceded when the accused started inflicting hatchet blows to Mst. Nawab Mai. In this view of the matter, we are left with the statement of Muhammad Iqbal accused who admitted the occurrence but in a manner different from that as stated by the prosecution witnesses." There is nothing in the statement of the accused showing same or any part thereof being in circumstances of case and impossibility so as to be excluded when considering guilt or otherwise of the accused." Reliance for this view is respectfully placed on Fateh Khan v. Muhammad Younis 1983 S C M R 268. In the instant case, we find that the statement of the accused is. corroborated by the eye‑witnesses as well as the circumstantial evidence on record of this case. The witnesses have admitted that Mst. Nawab Mai was having illicit relations with Khawaja Bakhsh. The post‑mortem report indicate that there was 4/5 month old dead foetus in the uterus of the deceased. This fact corroborates the statement of the accused that Mst. Nawab Mai had declared that she was carrying a child in her womb from Khawaja Bakhsh. Then, the place of occurrence is also material in the instant case. The accused was busy in his normal agricultural pursuits. Mst. Nawab Mai went there ostensibally without any specific purpose. The accused suddenly started giving blows the reason of which is not known. This fact also lends corroboration to the plea of grave and sudden provocation in his statement under section 342, Cr. P. C. It appears that on hearing the talk from his deceased wife, Muhammad Iqbal accused lost all his self‑control and under an irresistible impulse caused injuries to Mst. Nawab Mai. We have gone through the judgments relied upon by the learned counsel for the appellant. In the case of Muso, the appellant had asked the deceased, a wife of his brother, whether she was on terms of illicit intimacy with a third person to which she replied in affirmative. The accused was highly provoked on account of 'Ghairat' and killed the deceased. It was held by their Lordships that the accused was guilty under section 304, P.P.C. only.

15. In the case of Ahmad Din the accused was told by his wife that she was going to live with her paramour on account of which he got enraged and loosing self‑control caused her death on a spur of moment. It was held that he had acted under grave and sudden provocation and, therefore, entitled to the protection of exception I of section 300 P.P.C. In the case of Safdar Ali the accused had asked his deceased wife not to work in the house of Manzoor as that would bring disgrace to him and his family to which the deceased had replied in the negative saying that she was not his wife. The accused Safdar Ali lost temper and gave Churri blows to the deceased. His conviction was accordingly altered to section 304 (I), P.P.C. In the case of Imdad Hussain the accused had made a confession. It was stated by him that he had asked his wife that he suspected her to be on illicit terms with another person and that she should swear on Holy Quran whether she was on illicit terms with the said person or not, but his wife refused to do so. He, therefore, found her refusal as support of his suspicion and killed her out of 'Ghairat'. It was held in this case that the accused was guilty only under section 304 (I), P.P.C. In the case of Rashid Shah the accused was convicted on his own statement wherein he had stated that when he told his wife to accompany him to his house, she replied in anger that she was not his wife and, therefore, would not go with him but would go with her paramour Shah Nawaz. On this he lost control and gave her two hatchet blows. It was held that the accused was guilty under section 304, Part I, P.P.C. We respectfully place reliance on the above judgments. We are clearly of the view that in the facts and circumstances of the case Muhammad Iqbal was guilty only under section 304 (I), P.P.C.

16. We do not propose to impose any fine on Muhammad Iqbal appellant nor we are prepared to award any compensation to her heirs under section 544‑A, Cr. P. C. Mst. Nawab Mai deceased was an unchaste woman. She was immoral and indulged in adultery. We, therefore, do not think C proper to allow compensation to her heirs. Reliance for this view is placed on Maqsood Ahmad v. The State 1983 P Cr. L J 2236,

5. As a result of above discussion, Muhammad Iqbal accused is convicted and sentenced under section 304(I), P.P.C. to 5 years' R.I. The sentence of death is NOT CONFIRMED. He will be given benefit of section 382‑B, Cr. P. C. while computing his sentence in prison.

17. S.A. Order accordingly.