MUHAMMAD IQBAL Versus THE STATE

1. Muhammad Iqbal, his brother Zafar Iqbal, their father Haji Ahmad alongwith Muhammad Nawaz and Ata Muhammad residents of Hidali, District Khushab were tried for the murder of Muhammad Azam, by the Sessions Judge, Khushab. The trial Judge by his judgment, dated 31‑10‑1984 found Zafar Iqbal and Muhammad Iqbal guilty. They were sentenced to life imprisonment and a fine of Rs.10,000 each or in default to undergo R.I. for three years each. Half of the fine, if realized, was ordered to be paid to the legal heirs of the deceased. The benefit of section 382‑B, Cr. P. C. was also given to the accused. The rest of the accused were acquitted.

2. The convicts have appealed to this Court.

3. The occurrence in which the two appellants were involved took place on 25‑1‑1984, at 5‑30 a.m. Report Exh. P.D. was lodged by Ghulam Muhammad, at Police‑Station Mitha Tiwana.

4. It is alleged that on 24‑1‑1984 Muhammad Azam (deceased in this case) came to the house of Ghulam Muhammad to see his relatives. In the evening Muhammad Yaqub and Fateh Muhammad went to see Muhammad Azam. All sat together and talked till mid‑night. Then all of them went out t9 pass water. Muhammad Azam was 10/15 karams ahead of the party. When he was three karams short of pond, the appellants and the three acquitted accused appeared.

5. Muhammad Iqbal, Zafar Iqbal and Nawaz were armed with .12 bore guns. Haji Ahmad had a Soti. Ata Muhammad was armed with a hockey stick. The accused party challenged 'that they had come to take revenge from Muhammad Azam of their insult. Zafar Iqbal fired. Azam was hit in his left forearm. The second shot fired by Muhammad Iqbal hit the abdomen on the left side. The third shot fired by Muhammad Nawaz hit the deceased on the right side of his shoulder. Muhammad Azam fell down. While he was lying, Ata Muhammad gave him hockey blow on the head. Ghulam Muhammad and others tried to save the deceased but the accused threatened them with dire consequences. Muhammad Azam died there. The accused then brought the dead body to the house of Haji Ahmad.

6. The motive for the murder of Muhammad Azam was that some time ago he had abducted younger sister of Zafar Iqbal and Muhammad Iqbal, namely, Mst. Haleem Khatoon. Due to the intervention of certain respectables, she was restored to her parents. But the two brothers did not reconcile to this.

7. Ghulam Muhammad and Muhammad Yaqub were the eye‑witnesses in this case. The rest of the evidence consisted of recovery of guns at the instance of Muhammad Iqbal and Zafar Iqbal from underneath a heap of paddy crop and fire logs respectively, lying in the cattle shed of Haji Ahmad at his Dera and post‑mortem report of the deceased.

8. Zafar Iqbal appellant admitted to have fired and killed Muhammad Azam. He took up the plea of grave and sudden provocation and self defence. In view of the statement of the appellant it is not necessary to go into the details of the ocular evidence. Nevertheless, I think it is necessary to refer to the relevant portions of the eye‑witness, account. This is all the more necessary because the counsel appearing on behalf of the appellants challenged the presence of the two witnesses at the spot at the time of occurrence.

9. Ghulam Muhammad's statement before the trial Court was the same which he told to the police in his report Exh. P.D. Therefore, there is no need to repeat it.

10. Muhammad Yaqub is the next eye‑witness. He is the cousin of the deceased. He is resident of Bola. He was a cone winder in Sally Textile Mills. He said that on the night of occurrence the deceased had come to his house from Bilal Mills, Faisalabad. Muhammad Yaqub, Ghulam Muhammad and Fateh Muhammad were busy talking. It became mid‑night. The party went to the pond situated towards the East of the house to urinate. It was moon lit night. Azam was ahead of them by 10 karams. When he was short of three karams from the pond the accused party appeared. They shouted. Muhammad Iqbal, Zafar Iqbal and Muhammad Nawaz had .12 bore guns, Haji Ahmad Soti and Ata Muhammad hockey stick. Zafar Iqbal fired. Azam was hit in the arm. Then Muhammad Iqbal and Muhammad Nawaz fired. Azam fell down. Ata Muhammad gave a hockey blow on the head of Muhammad Azam. Yaqub and others tried to rescue the deceased but they were threatened with serious consequence by the accused party. The accused then carried Muhammad Azam who by then had expired, to the house of Haji Ahmad. The dead body was placed in the courtyard of Haji Ahmad.

11. Dr. Muhammad Riaz Ali, Senior Medical Officer, Civil Hospital, Khushab, conducted autopsy. He found the following injuries on the dead body:‑

(1) Nine lacerated wounds in the area of 3" x 2 x deep on left side of the abdomen at lower part.

(2) A lacerated wound 3 x 2 x bone deep on back of left forearm, underneath bone was fractured.

(3) Three lacerated wounds in the area of 3 x 2‑3/4" in the right armpit.

(4) A contused wound 1 x x skin deep on right side of the head.

(5) A lacerated wound 1 x 1" x deep on right shoulder which communicated with injury No.3

(6) Four lacerated wounds in the area of 2 x 1" x skin deep on middle of right shoulder.

12. Death was due to shock and haemorrhage. Injuries Nos. 1, 2, 3 and 5 were sufficient to cause death in the ordinary course of nature.

13. Learned counsel who took me through the evidence argued that the prosecution version was not reliable.

14. Learned counsel submitted that, the eye‑witnesses were not present. The presence of Ghulam Muhammad was doubtful. Both the witnesses were brought to the scene to create evidence.

15. It was further submitted that as a matter of fact the incident took place as stated by Zafar Iqbal in his statement before the trial Court.

16. Thereafter, learned counsel argued the case on the basis of two fold plea taken by the appellant in his statement under section 342 Cr. P. C.

17. Muhammad Yaqub admitted that he took his dinner at 6‑00 p. m. in the canteen of the Mills where he was working. He left the Mills after he finished his duty at 1‑00 p.m. He travelled up to Jauharabad in the bus and then to Bola on cycle. The distance between village Abadi and Mills was about 3 miles.

18. He said that when the occurrence took place, his duty was 2‑00 to 10‑00 P.M.

19. He further admitted that in the year 1969‑70, his maternal‑uncle Sultan was murdered and Ghulam Muhammad elder brother of Ata Muhammad, his brother‑in‑law Azmat, Noor Muhammad father of Azmat and Sher Muhammad father of the wife of Ata Muhammad were challaned.

20. The Investigating Officer admitted that in the inquest report Exh. P.L., in column No.1, provided for showing the place of death or the place from where dead body was recovered he had written the courtyard of Haji Ahmad accused. Similarly the officer also admitted that in column No.7 he did not show the shoes of the deceased alongwith clothes. In column No.12, the Investigating Officer only mentioned fire‑arms. He did not mention the type of arm i.e. the gun nor did he mention about Lathi and hockey.

21. Zafar Iqbal made the following statement:‑

22. "The actual facts are that the deceased had sneaked into our house and was attempting to kidnap again my unmarried sister Mst. Haleem Khatoon. When I heard his whistling and some sounds, I came out carrying a gun under suspicion that there was something in the courtyard but I found that deceased Muhammad Azam was standing bare footed near the eastern wall of our Haveli. I protested to him but he taunted me that 1 being a shameless person had no right to protest after having brought back Mst. Haleem Khatoon from Gujrat after he had been enjoying her. He fired at me from a pistol, which he was holding. On grave and sudden provocation and in my self defence I fired at him and also gave him a blow on his head with the butt of my gun. I informed the police who accompanied me to the spot and we reached the spot at about 2‑30 a.m. The D.S.P. also arrived at the spot on the following day and it was there after that the complainant party was summoned by the police. After investigation the actual facts were concealed and a false story was fabricated by putting up eye witnesses in order to make it a murder case. A twisted F.I.R. was drawn up on the following evening. No one had actually seen the occurrence. The venue of occurrence was also dishonestly changed."

23. I am to make sure as to which version is to be accepted, the story of the prosecution or the statement of Zafar Iqbal. If I have to accept the statement of Zafar Iqbal then I have also to make sure whether he has succeeded in establishing both the pleas or only one, if one, which one and ultimately its effect on the prosecution case.

24. Prosecution case started with the fact that the younger sister of the two appellants was abducted by the deceased. She remained with him for some time. She was restored due to the intervention of certain respectables. This is an important factor to be considered while examining the plea of appellants.

25. I am not prepared to accept the prosecution story to the extent that in the middle of the night in the month of January which is the p coldest month in our country, the party went out and walked some distance simply to pass water.

26. Another important fact to be noted is that the prosecution had not brought any evidence to show that the accused party knew that at that particular hour the complainant party especially the deceased would be out for toilet.

27. The explanation given by Yaqub for his presence at the spot is not convincing. It does not fit in the circumstances of the case that he came all the way just for a gossip.

28. Ghulam Muhammad's evidence does not inspire confidence.

29. The police involved the entire family including 70 years old father of the appellants. This shows mala fide of the prosecution.

30. I have, therefore, no option but to reject the entire prosecution evidence. As such I accept the statement of Zafar Iqbal appellant. It is now to be seen as to which plea he has been able to make out.

31. Zafar Iqbal stated that he was first fired at and it was in retaliation that he killed Azam. But this plea does not find any support p from any evidence on the record. Hence the plea of self defence is rejected.

32. There appears to be good deal of force in the other plea which is of grave and sudden provocation and this finds support from circumstantial evidence.

33. Admittedly the deceased was carrying out with sister of the appellants. As such he must have sneaked into the house of the appellants at that odd hour to meet his beloved, whom he either wanted to take away with him or to have good time with her. Situation like this leads to grave and sudden provocation. Therefore, I accept this plea. Hence conviction under section 302 P.P.C. is not maintainable. The same is set aside. In the alternative the appellant is convicted under section 304 Part‑II P.P.C. and sentenced to 5 years R.I. He is given the benefit of section 382‑B, Cr. P. C. The sentence of fine is remitted.

34. I have accepted the statement of Zafar Iqbal. He denied the presence of his brother Muhammad Iqbal at the spot. There is no reason to disbelieve him. His participation as such becomes doubtful. Hence Muhammad Iqbal is given the benefit of doubt and acquitted. He is on bail. His bail bond stands discharged.

35. S. A. Appeal Partly Accepted.