SAMAR IQBAL Versus THE STATE

This criminal appeal arises from the judgment of the learned Addl. Sessions Judge, Sargodha, whereby he on 18-2-1987 convicted Samar Iqbal aged 22/23 years and Javed Iqbal aged 24 years under section 302/34, P.P.C., for the murder of Mst. Najma aged 22/23 years and sentenced them to imprisonment for life and fine of Rs.10,000 each in default thereof three years R.I. each. It was directed that fine when recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 27-11-1985 at 2.30 P.M. in the house of Mst. Najma deceased situated in Saeed Park, Sargodha at a distance of four furlongs from Police Station City Sargodha. F.I.R. Ex.PB is the statement of Imtiaz Akhtar, brother of the deceased recorded by Ata Muhammad S.I. PW.9 on the same day at 2-30 p.m., at Noori Gate at a distance of half furlong from the spot. The formal F.I.R. Ex.P13/1 was recorded by Khurshid Ali ASI on the same day at 2.35 p.m. at the police station.

3. The motive as alleged by the prosecution was that the appellants wanted to marry Mst. Fakhar-un-Nisa, sister of Samar Iqbal appellant with Javed Iqbal appellant, who had already been engaged with Imtiaz Akhtar complainant. Mst. Najma deceased was insisting that Mst. Fakhar-un-Nisa should marry Imtiaz Akhtar and not with Javed Iqbal, hence this occurrence.

4. As far the main occurrence, it has been stated that Samar Iqbal and Javed Iqbal appellants were sitting in the Baithak of Samar Iqbal appellant when Imtiaz Akhtar accompanied by Muhammad Iqbal P.W.8 and Abdul Hameed (not produced) arrived there and went upstairs in the upper room. On hearing the shrieks of Mst. Najma, they reached the spot and saw that the appellants were giving knives injuries to Mst. Najma in the courtyard. When she went into a room to save herself, the appellants followed her and inflicted knife blows to her in the room. The appellants then ran away taking weapons with them. Mst. Najma was removed in injured condition to District Headquarters Hospital, Sargodha. She expired as soon as she reached the hospital.

5. Dr. Riaz Ahmad PW.4 conducted post-mortem examination on the dead body of Mst. Najma and found the following injuries:----

"(i) An incised wound 5 c.m x 1/4 c.m skin deep on left forearm;

(ii) An incised wound 1 c.m x 1/4 c.m on left forearm skin deep;

(iii) An incised wound 2 c. m x 1/2 c. m skin deep on front of left arm 3 c.m from left elbow;

(iv) An incised wound 2.5 c. m x 2 c. m on outer side of left buttock;

(v) An incised wound 2.5 c-m x 1 c.m-back of left arm;

(vi) An incised wound 2 cm x 1 c.m on back of left arm;

(vii) An incised wound 2.5 c.m x 1 c. m on right side of breast muscle deep;

(viii) An incised wound 2.5 c. m x 1 c. m skin deep about 1 c. m from left nipple on lower side of left breast;

(ix) An incised wound 10 c. m x 1 c. m on outer side of left chest skin deep;

(x) An incised wound 2.5 c.m x 1 c.m on back of right chest, muscle deep;

(xi) An incised wound 1 c. m x 1/ 4 c. m on back of right chest skin deep:

(xii) An incised wound 2.5 c. m x 1 c. m skin deep on abdomen in epigastrium;

(xiii) An incised wound skin deep 5 c. m x 1 c. m on abdomen about 10 c.m from injury No.12 and

(xiv) An incised wound 2.5 c.m x 1 c.m skin deep on outer side of right side of abdomen."

In his opinion, death had occurred due to injuries Nos. 7,9,11 and 14 which were sufficient to cause death in the ordinary course of nature.

6. The appellants were arrested on 3-12-1985 by Ata Muhammad S.I. PW.9. On 8-12-1985 Samar Iqbal appellant led to the recovery of blood-stained knife P.4 from underneath a carpet lying in his house which was taken into, possession vide Memo PE attested by Haji Muhammad Alam PW.6 and Muhammad Siddiq (not produced). On the same day Javed Iqbal appellant got recovered blood-stained knife P.5 from a box lying in his house which was taken into possession vide Memo PF attested by the same witnesses. The Serologist report Ex.PL reveals that the knives P.4 and P.5 were stained with human blood.

7. To prove its case, the prosecution examined nine witnesses. Imtiaz Akhtar PW.7 and Muhammad Iqbal PW.8 have given the ocular account of occurrence. They claim to have seen the appellants causing knife injuries to the deceased. Imtiaz Akhtar PW.7 has also supported the motive. Muhammad Alam PW.6 stated that the appellants had got recovered blood-stained knives from their houses. Ata Muhammad S.I. PW.9 also supported the recoveries of blood-stained knives on the pointation of the appellants from their houses. Dr. Riaz Ahmad PW. 4 has proved the post-mortem examination report. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr. P. C . Javed Iqbal denied all the incriminating circumstances whereas Samar Iqbal pleaded grave and sudden provocation. In reply to question No.8, he stated:-

"On the fateful day I was working at my Foundry nearby my house on Fatima Jinnah Road, Sargodha. At about 12 Noon or so I went to my house to fetch piston from there, but I found the outer door situated in the 'Deori' of my house chained from inside. I knocked at the door persistently. There was no response but I still persisted in knocking the door. After sometime the said door was unchained from inside by Mst. Najma, deceased and in the meanwhile I heard the door opening and the Deori' of the baithak' being opened. When I was just stepping in, I again heard the outer door of the baithak being unchained. I rushed out and saw that Mushtaq alias Bills, son of Muhammad Saeed son of Abdul Karim whose house was situated just in front of our house running away from the door of our house. I chased him, but he succeeded in running away and ran into his house. I came back and entered the front room of the outer door of my house and found a purse containing Rs.20 as well as a joint photo of Mst. Najma, deceased and Mushtaq alias Billa. I was enraged and could not control myself when facing all the circumstances, as described above. None of the residents of the house was present at that time in it. I asked Mst. Najma, deceased as to the foul play, which had happened. She expressed in a taunt that she could continue her illicit relations with Mushtaq alias Billa. I lost self-control and ran into my kitchen from where I collected a kitchen knife and started injuring Mst. Najma deceased with it. Having done so, I went to my father and elder brother in Muslim Bazar, where they were running a workshop. I told my father about the incident as described above and accompanied my father to P.S., City Sargodha. I produced the aforesaid purse containing the currency notes as well as the joint photo, mentioned above before the police and made my statement as described today. They asked me about the whereabouts of the parents of Mst. Najma, deceased and on our disclosure, they sent a constable to Chak No, 91-N. B. and made me sit over there. Subsequently on the arrival of her brothers, etc. a false case was registered against me. Mst. Najma, deceased was found talking to Mushtaq alias Billa at odd hours of the night a month earlier to the day of occurrence, but she had sought pardon and the matter was settled after a complaint having been made to the father of Mushtaq alias Billa. I caused injuries to the deceased under the extreme stress of grave and sudden provocation. The two eye-witnesses never witnessed the occurrence. Mst. Najma, deceased remained at the house, when my sisters and mother had gone to Meena Bazar held at Municipal Garden, Sargodha, for the purpose of having illicit intercourse with Mushtaq alias Billa, aforesaid. I was alone to cause the injuries to the deceased in the circumstances, stated above by me."

The learned trial Court while believing the motive, ocular evidence and the recoveries of the blood-stained knives from the appellants has convicted and sentenced them as stated above.

9. Learned counsel for the appellants contended that the eye witnesses produced by the prosecution are not reliable; that Imtiaz Akhtar is brother of the deceased; Muhammad Iqbal P.W. is a chance witness; that the two eye-witnesses used to reside at a distance of 8 miles from the place of occurrence; that they claim to have peeped through window and seen the appellant inflicting injuries to Mst. Najma deceased and that there are reasonable possibilities of the defence version being true. Learned counsel for the State supported the judgment of the trial Court. He was also of the view that since Mst. Najma was not the wife of the appellant and was wife of his brother; that on his own showing the appellant had not seen the deceased in an act of adultry or in objectionable position with the deceased; that there was time to cool down and that there was only admission by the deceased before the appellant of her illicit intimacy with Mushtaq which tantamounts to a taunt and nothing more or less, therefore, the act of the appellant of killing Mst. Najma was purely a murder punishable under section 302, P.P.C.

10. I have anxiously attended to the arguments addressed by the learned counsel for the parties and have carefully reviewed the entire evidence that has been produced by the prosecution; statements made by the appellant and his co-accused recorded under section 342, Cr.P. C. and the circumstances appearing in the case. I find that the occurrence took place in the house of Samar Iqbal appellant where Mst. Najma being the wife of his brother also used to live that Imtiaz Akhtar and Muhammad Iqbal, the eye-witnesses being not residents of that house or of the village in which the occurrence took place are not the natural witnesses; that Imtiaz Akhtar P.W. has admitted that he had come to the house of the deceased per chance; that there is no other circumstantial certainty of the presence of the eye-witnesses in the house of the deceased at the time of occurrence and that since Samar Iqbal appellant could kill Mst. Najma at any time in the house, therefore, the story of the prosecution that the appellant had killed the deceased after the arrival of her brothers Imtiaz Akhtar and Muhammad Iqbal P.Ws. in his house, runs counter to the natural probabilities and does not fit in with the circumstances of the case. So, there are reasons to doubt that the two eye-witnesses in fact were present on the spot or saw the occurrence. That being the position, there is no option but to exclude their evidence from consideration. There remains recovery of knives from the appellants. The occurrence took place on 27-10-1985. The appellants were arrested on 3-12-1985. They allegedly got recovered blood-stained knives from their house on 8-12-1985. In this view of the matter it does not appeal to reason that the appellants would have kept the blood-stained knives intact although they could easily wash the blood. The deceased was the daughter of the wife's brother of Muhammad Alam P.W.6, the recovery witness. He was not the resident of the locality. The place of recovery of knives is surrounded by inhabitated houses. The Investigating Officer did not care to join any person of the locality to witness the recoveries. So, the recovery of blood-stained knife from appellant after 10 days of occurrence is highly doubtful and no reliance can be placed on it.

Since the ocular evidence as well as incriminating recoveries have been disbelieved, therefore, there is no option but to acquit Javed Iqbal appellant. As far Samar Iqbal appellant, he claims to have killed the deceased under grave and sudden provocation. He has explained the circumstances which deprived him of the power of self-control by grave and sudden provocation. I find that there is no direct or indirect evidence from the prosecution side to prove the circumstances in which the attack on the deceased was initiated and there is also no evidence to contradict the statement of Samar Iqbal appellant in whole or in part, therefore, I have per-force to fall back on his statement alone and accept the same in its entirety.

12. Now I proceed to determine the criminal liability of Samar Iqbal appellant in the light of his statement. I do not agree with the view point of the learned State counsel that the appellant's act of slaughter, in the circumstances stated by the appellant, tantamounts to murder punishable under section 302, P.P.C. I feel that the act of the accused of killing Mst. Najma, in the circumstances explained by him, is culpable homicide not amounting to murder, for the reasons that in our country a mere meeting or casual talk by a woman with a stranger in suspicious circumstances is looked upon by the society in particular the relations including brothers of the husband of the woman with great disapproval and resentment. The categorical admission on the part of a woman of her illicit relations with the stranger must excite feeling incapable of being explained in words and it would be a provocation grave and sudden enough to deprive the husband/close relations of the power of self-control. Samar Iqbal appellant has stated that when he asked the deceased, the wife of his brother, about the foul play, she while admitting her illicit relations declared that she could continue her relations with Mushtaq alias Billa. So, he lost self-control and killed the deceased. Since the real test to be applied is to see what effect the provocation given would have on an ordinary reasonable person, I feel that in the instant case, categorical admission of illicit relations on the part of deceased brother's wife of the appellant and her instance to continue the same was a provocation grave and sudden enough to deprive any reasonable man of the power of self-control. There should be no difference between provocation caused by admission on the part of a woman of illicit intercourse and that caused by sight of a woman being in compromising position with paramour. The shameless admission being a conclusive proof of her immoral conduct and illicit relations with a stranger would rather sprinkle oil on heated passions. For all these reasons I am of the view that Samar Iqbal had killed Mst. Najma under grave and sudden provocation and his case falls within exception to section 300, P.P.C. and as such, he was guilty of an offence punishable under section 304 and not section 302 of the Code.

The upshot of the above discussion is that there being no satisfactory basis to uphold his conviction, Javed Iqbal appellant is acquitted of the charge. The conviction of Samar Iqbal appellant under section 302, P.P.C. is set aside, instead he is convicted under section 304-1, P . P . C . In the circumstances of this case, I feel that the sentence of 5 years R.I. and a fine of Rs.10,000, in default thereof 1 years' R.I. would meet the ends of justice. It is directed that the fine if recovered will be paid to the legal heirs of the deceased.

S.G.D./S-131/L Order accordingly.