MUHAMMAD IQBAL Versus THE STATE
Appellant Muhammad lqbal alias Bala (30) having been tried for the murder of his maternal-aunt Mst. Khurshid Bibi (35) alongwith the acquitted co-accused Afzal, Nazir and Khizar alias Khizra (not sent up for trial) was convicted and sentenced under section 302, P.P.C. to imprisonment for life with a fine of Rs.2,000 in default to serve another term of one year's R.I. in addition to the payment of Rs.10,000 as compensation to legal heirs of the deceased by the learned Sessions Judge, Gujrat vide the, impugned judgment, dated 16-4-1990 has preferred the present appeal emerging out of the following facts.
2. Mst. Jaina Bibi P.W.3 mother of the deceased on 26-4-1989 around 10-00 a.m. got her statement Exh. P.C. recorded with Ijaz Ahmad, S.I. P.W.7, Incharge Police Post Charanwala on the basis whereof formal F.I.R. Exh.P.C./1 was registered by Muhammad Ali/S.I., S.H.O. Police Station Pahrianwali 7-1/w kilometres from the place of occurrence the some day at 11 a.m. to the effect that the complainant being the sole heir of her father Allah Din was vested by the latter with the entire estate comprising house and the agricultural land during his lifetime, whose wedlock with Muhammad Sharif solemnised k/42 years earlier yielding the deceased fell a prey to estrangement culminating into the farmer s second marriage leaving the deceased with the complainant who, 20 years ago was married to Muhammad Aiam, who raising three off springs i.e. 2 daughters and a son became a wisdom, with the demise of her husband 3/4 years preceding the incident whereupon with a view to catering for their sources of living the complainant bestowed unto her entire agricultural land over which the accused party had an eye in the furtherance whereof the deceased in the company of her mother and daughter Mst. Bushra Bibi (15) P.W.5 was waylaid early in the morning by the appellant alongwith the above-named co-accused equipped with hatchets enroot to their Dera near the canal embankment and inflicted injuries on her neck, upper limb and back to which she succumbed on the spot. The occurrence, was also witnessed by Muhammad Zaman P.W.4 and Muhammad Inayat (the won over P.W.), nearby villagers who happened to be on the brick-kiln of Muhammad Din for the purchase of bricks within immediate vicinity of the place of occurrence.
3., Ijaz Ahmad, S.I. P.W.7 after recording the complaint prepared the deceased's injury statement Exh P.F., inquest report Exh. P.G., rough sketch plan Exh. P.H. and reducing into possession blood-stained earth Wide memo. Exh. P.D. despatched the dead body to the mortuary for post-mortem examination under the escort of Shabbir Ahmad, F.C. P.W.1 who later on tendered the last-worn blood-stained clothes of the deceased Shirt P.1, Vest P.2, loin-cloth P.3, Chaddar P.4, sealed phial containing vaginal swabs which were secured into possession vide memo. Exh. P,A. by Mumtaz Ali Alvi/S.1., S.H.O., Police Station Paharianwali P.W.9 who by then had taken over the investigation and effected arrest of the appellant on 9-5-1989 who, the same day led to the recovery of blood-stained hatchet P.5 from his Dera taken into possession vide memo. Exh. P.B. witnessed by Muhammad Hanif P.W.2 (declared hostile), Amjad Iqbal (given up for having proceeded abroad) and the Investigating Officer who also got the site plan of the occurrence. Exh. P.J. prepared from Muhammad Hayat, Revenue Patwari, P.W.10.
4. In cross-examination Ijaz Ahmad P.W.7 explained that he received the information at the police post situated 1-1/2 miles away from the place of occurrence from a stranger however did not record his statement, on reaching the spot noticed 15/20 persons present near the dead body, in addition to the P.Ws. he also recorded statements of 8/9 other persons but were not cited as witnesses not for their failure to support the prosecution story, denying the suggestion as to preparing the injury statement and inquest report after the post-mortem examination.
5. Mumtaz Ali Alvi, S.I. P.W 9 responding to questions affirmed that 2/3 years preceding the occurrence the deceased having eloped with Allahdad of Village Dinga contracted Nikah with him and two years later returned to her parental place, the investigation did not reveal her illicit intimacy with Zaman Machi, however, certain villagers did appear before him in this respect, the appellant took up the plea of provocation and causing the murder due to family honour, but during the investigation it was not confirmed, the appellant and the deceased jointly owned the Dera where nobody was putting up an acre away wherefrom the occurrence took place, vehemently repelling the suggestion as to the appellant's appearance before him the very next day and fabrication of the case,
6. Dr. Shahid-ul-Hassan Chatha P.W.6, the then Causality Medical Officer, Tehsil Headquarters, Hospital, Phalia the same day around 4 p.m. conducted autopsy on the dead body produced by Shabbir Ahmad, F.C. P.W.1 identified by Muhammad Inayat (the won over P.W.) and vide the post- mortem report Exh. P.E. noted the following:
(1) Incised wound 16 c.m. x 5 c.m. oblique in direction starting from right side of chin to right side of chest, cutting the sternastoid cleanly.
(2) Incised wound 19 c.m. x 3 c.m. in front of neck, cutting the trachea, blood vessels and oesophagus slightly oblique from front to back and upward.
(3) Incised wound 21 c.m. x 5 c.m. on the back of neck cutting the last cervical vertebra cleanly. A small flap of skin was intact interiorly on neck slightly at lower level to injury No.2.
(4) Incised wound 17 c.m. x 10 c:m. right shoulder on the back bone deep cutting a piece of bone and there was a piece of skin and tissues with bone piece placed separately.
(5) Incised wound 4 c.m. x 1 c.m. skin deep left forearm middle portion on lateral aspect.
Other organs healthy, stomach containing undigested food with rice and peas, all injuries were opined to be ante-mortem of sharp-edged origin, the death was caused immediately due to shock and haemorrhage resulting from injuries 1, 2 and 3 sufficient to cause death in the ordinary course of nature, time between the injuries and the death immediate, post-mortem whereof was conducted within 8 to 12 hours, injuries 2 and 3 could be the result of same Toka blow the deceased might have taken the last food 1/2 hour prior to the death, controverting the suggestion as to non-possession of inquest report at the time of post-mortem examination.
7. The complainant narrating the prosecution story explained that at the time of incident they were going to the Dera for harvesting grain crop equipped with sickles, were also beaten up by the appellant a day earlier, none was sent to report the incident, the police arrived within an hour's time, the appellant pioneered the attack hitting on the deceased's neck consequent whereto she collapsed on the ground where she was supplemented injuries by the co-accused. Replying questions she stated that the accused were closely related inter se, the appellant resided at his Dera, was nephew of the deceased's later husband Muhammad Alam after whose demise she contracted Nikah with Allahdad of Village Dinga on her own accord leaving the issues with her and joined the family a year later, some of the deceased's land was also being cultivated by the accused party during lifetime of her late husband and continued to be so, appellant's father Fazal deceitfully through impersonation got deceased's land mutated unto her minor son Abbas qua which a criminal case was registered, Zaman Machi was their tenant but was not putting up in their house, denying the suggestion as to having promised to give the hand of Mst. Bushra Bibi P.W. to Zaman P.W's son, his rumoured illicit intimacy with the deceased and noticing of the latter in compromising 17osition.
8. The complainant was corroborated on all material particulars by the deceased's daughter Mst. Bushra Bibi P.W.5 vouching the factum of the three keeping fast as well as by Muhammad Zaman P.W.4.
9. Positive reports of the Chemical Examiner, the Serologist qua earth and hatchet Exhs. P.K. P.L. P.N. and P.O., respectively with negative report as to vaginal swabs Exh. P.M. were tendered in evidence by the Prosecutor while rest of the evidence was of formal nature.
10. The appellant in his statement under section 342, Cr.P.C. admitting the occurrence gave his version of the story in the following terms:
"I have been falsely involved against facts in this case. Mst. Khurshid deceased was my real paternal-aunt. My uncle Muhammad Alam died 10/12 years prior to the occurrence and after his death Mst Khurshid was abducted by one Allahdad of Village Dinga and her minor issues remained in our custody. After some time my father Muhammad Fazal got restored her from Allahdad and thereafter she alongwith her children started living with us at our common Dera. Thereafter my father forced Mst. Khurshid Bibi to transfer her lands in the name of by her issues i.e. her son Abbas, which was resented by Mst. Jaina and Mst Khurshid and the matter was then reported to the police, a case was registered but was ultimately cancelled. Mst. Khurshid deceased was not enjoying good moral character and my father and me requested her many a time to refrain but in vain. Thereafter Mst. Khurshid developed illicit relations with one Zaman Machi of Village Charanwala, who was then turned out from the village by us. On the day of occurrence I then came to the Dera in the early hours of the morning to milk the buffaloes and found my aunt Mst. Khurshid Bibi m compromising position with said Zaman Machi and I then lost self control picked up a hatchet from the Dera and tried to kill Zaman, who ran away. Mst. Khurshid Bibi also ran for her safety towards the village and so then had reached the canal near her Dera when I apprehended her and gave her hatchet blows there under grave and sudden provocation and as such had committed no offence. The occurrence was un-witnessed one. My co-accused Nazir and Afzal were not present there with me and as such are innocent."
11. On the basis of the afore going the verdict under appeal was returned legality whereof has been assailed by the learned counsel for the appellant pleading sudden and grave provocation and conversion of the conviction under section 304, Part I, P.P.C. while learned counsel appearing on behalf of the State supported the judgment.
12. Having gone through the entire evidence I am not persuaded by the contentions urged by the learned counsel for the appellant visualising the same in juxtaposition with that of the prosecution story because the former on the circumstances of the case does not even appear to be reasonably probable, viz., the deceased venturing upon illicit frolics soon after taking Sehri meals in the month of Ramazan does not appeal to reason specially in view of the negative report of the Chemical Examiner qua her vaginal swabs and non-conformance thereof by the Investigating Officer, thus seems to be a convenient afterthought conceived during the pre-arrest interregnum. Additionally assuming for the sake of arguments that the appellant was furnished a provocative cause as per his own showing he had ample time to cool down, since, steadily he went to the A Dera for fetching the crime weapon, by which time the adventurers had vanished away from the scene thus were chased.
.
13. Conversely the prosecution case has been proved through undiluted testimony of the complainant and Mst. Bushra Bibi mother and daughter of the deceased respectively, credence where to is lent by the medical evidence; consequently the appeal being devoid of any substance is hereby dismissed.
N.H.Q./M-1820/L Appeal dismissed.