2002 P Cr (PLP)

6. On the same day, at about 3‑05, the same doctor conducted the post‑mortem examination on the dead body of Shaukat Iqbal and found the following injuries on his person:‑‑ (1) A fire‑arm wound on entry with inverted margins, having no blackening or scorching around 0.5 c.m. x 0.5 c.m. x whole thickness of back of left elbow, directing inward and to the right and slightly downwards. (2) A fire‑arm wound of exit 2.5 c.m. x 1.7 c.m. on the front of left fire‑arm 5 c.m. below the elbow joint. It was the exit wound of injury No. 1 above. (3) A fire‑arm wound of entry with inverted margins, without any blackening or scorching around, 0.5 c.m. x 0.5 c.m. x chest cavity deep on the left lateral aspect of chest, 12 c.m. below the roof of left axilla and 22 c.m. left to the midline. It was directed towards right, slight upward and forward. (4) A fire‑arm exit wound 1.5 c.m. x 1 c.m. on the front of right chest, 13 c.m. below to right nipple and 15 c.m. right to the midline. (5) A fire‑arm wound of entry with inverted margins having no blackening or scorching around, 0.6 c.m. x 0.6 c.m. x chest cavity deep on the posterior‑lateral aspect of right chest, 18 c.m. below the top of right shoulder and 28 c.m. to the right of midline. It directed downward, forward and to the left The doctor found the stomach of the deceased empty whereas the large intestines contained faecal matter and bladder was full of urine The death was the result of fire‑arm injuries and the duration between the death and the injuries was immediate and between the death and post‑mortem was 8 to 11 hours.

7. The post‑mortem examination on the dead body of Mst. Fakhra Bibi was conducted at 4‑05 on the same day by the same doctor who found the following injuries on her person:‑‑ (1) A fire‑arm wound of entry with inverted margins but no blackening or scorching around 0.9 c.m. x 0.9 c.m. x abdominal cavity deep on the left lateral wall of abdomen, 14 c.m. to the left of midline and 7 c.m. above the iliac crest. The shirt had corresponding holes which was marked and signed. The injury directed inward to the right and slightly upwards. (2) A fire‑arm wound of entry with inverted margins but no blackening or scorching around, 0.7c.m. x 0.6 c.m. (oval in shape) x abdomen thoracic deep on the front of right lower chest, 4 c.m. right to the midline and 19.5 c.m. below the right supra calvicular fosse. It directed backwards, slight downwards and to the right. (3) A fire‑arm wound of exit 1.5 c.m. x 1 c.m. on the right anterior abdominal wall with everted margins, 6 c.m. right to the midline and 21 c.m. infro‑medial to the right nipple. (4) A fire‑arm wound of exit 1.5 c.m. x 1.2 c.m. on the back right side of chest, 7.5 c.m. to the right of midline and 16 c.m. below the tip of scapula. The doctor found about two ounces of semi‑liquid food in the stomach whereas small and large intestines as well as urinary bladder were empty. The death was caused as a result of. fire‑arm injuries and the time between the injuries and death was immediate and 8 to 12 hours between the death and post‑mortem examination.

8. The prosecution produced thirteen witnesses in all including the eye witness namely Nazar Hussain P.W.6 who witnessed the occurrence relating to the murder of Mst. Fakhra Bibi in the house of Muhammad Iqbal appellant. Mst. Fehmida Begum widow of Shaukat Iqbal deceased P.W.8 stated that on 27‑6‑1994 at 5‑30 a.m. she was present in her house with Nazar Hussain P.W.7 her father‑in‑law and Ghulam Safia, her mother‑in‑law, when Muhammad Iqbal appellant having rushed to their house fired successive shots at Shaukat Iqbal deceased while he was sleeping on a cot in a residential room of his house. Mehdi Khan P.W.9 has witnessed the murder of his son Ijaz Hussain at the hands of Muhammad Iqbal appellant who while armed with pistol fired three successive shots at the deceased when he was sleeping in room of his house at 5‑00 a.m. on 27‑6‑1994. Rehmat Khan, S.‑1, P.W.12 investigated the case whereas Ali Ahmad Sabir Kiani, Magistrate 1st Class, recorded the judicial confession made by Muhammad Iqbal appellant. The remaining witnesses are of formal nature and need not to be discussed in detail.

9. The appellant in his statement under section 342, Cr.P.C., in reply to question No14, "why this case against you" made the following answer:‑‑ "I have been falsely involved on mere suspicion. The real facts have been twisted and inserted in order to set up a case of capital charge against me. I worked as a barber at Rawalpindi and lived there. On returning to the village on the night of 26th and 27th June, 1994, I saw Shaukat Iqbal deceased standing in the courtyard of my house in village Mangwal where my wife Fakhra Bibi deceased lived. On my inquiry, Shaukat Iqbal deceased started quarrelling with me and throttled my neck. I pushed him back in order to save my life. He picked up a brickbat and wanted to hurt me with the same but before he could do so, I pulled out my licensed .30 bore pistol and fired and injured him in self‑defence. This happened in the courtyard of my house. In the meantime, Ejaz Hussain deceased carne out of my residential room where my wife Fakhra Bibi deceased was present. I was extremely provoked on seeing Ejaz Hussain and Fakhra Bibi deceased in the same room and as Ejaz Hussain deceased came out, I also fired at him under grave and sudden provocation and out of `Ghairat'. He got injured and fell down. I then went to the room and killed Fakhra Bibi deceased also for the same reason and under the said circumstances. I myself appeared before the police alongwith my licensed pistol on the same day and narrated the incident to them."

10. Learned counsel for the appellant has contended that if the prosecution story as contained in the F.I.R. and narrated by the eye witnesses is put in juxtaposition to the defence version taken by the appellant in his statement under section 342, Cr.P.C., it would be a case of grave and sudden provocation and would not fall within the definition of Qatl‑e‑Amd punishable under section 302(a) or (b) P.P.C., and would squarely fall within the ambit of section 302 (c), P.P.C. for the purpose of sentence. Learned counsel has contended that the appellant and the deceased were residents of the same village and despite the fact that their houses are located at a short distance, the story that the appellants committed the murder of three deceased one after the other in the same succession is not plausible. The learned .Counsel submitted that none of the witnesses was inmates of the houses in which Ijaz Hussain and Shaukat Iqbal were done to death by the appellant which would be a strong circumstance to show that the occurrence did not take place at the places and in the 'manner as suggested by the prosecution. Learned counsel contended that the recovery of dead body of Mst. Fakhra would show that the appellant while noticing his wife in objectionable position with Shaukat Iqbal and Ijaz Hussain under grave and sudden provocation fired at his wife and her paramours. Learned counsel has, however, not been able to point out any evidence to suggest that how and in what manner. the dead bodies of Shaukat Iqbal and Ijaz Hussain were removed from the house of the appellant to their own houses. Learned counsel contended that the occurrence being unseen and the version of the accused given by him in his statement under section 342, Cr.P.C. would tie supported by the confessional statement made by him before a Magistrate and the prosecution evidence was not confidence‑inspiring. Learned counsel concluded that keeping in view the defence version, which is supported by the attending circumstance, the appellant would only be guilty of an offence under section 302(c), P. P.C.

11. Learned Assistant Advocate‑General and the learned counsel for the complainant on the other hand, has contended that the occurrence relating to the murder of Ijaz Hussain and Shaukat Iqbal was witnessed by the inmates of the house who were the natural witnesses of the occurrence and had no enmity whatsoever against the appellant to make false statements against him. They have submitted that the occurrence relating to the murder of Mst. Fakhara Bibi was witnessed by a neighbourer namely Nazar Hussain and his presence early in the morning in his house adjacent to the house of the appellant being not deniable, he was natural witness of the occurrence. The learned counsel for the complainant has further submitted that in the given facts, there would be no mitigating circumstance in favour of the appellant for the lesser punishment.

12. We have heard, the learned counsel for the parties and perused the record minutely with their assistance. The occurrence as per prosecution story took place early in the morning on 27‑6‑1994. The houses of all the three deceased were located in the same vicinity at a short distance from each other and all the three deceased were murdered to the same succession with short intervals. The blood‑stained earth from the places of murder of three deceased was taken from their houses separately. The empty. cartridges of .30 bore pistol were also recovered from the places of murder of Shaukat Iqbal, Ijaz Hussain and Mst. Fakhra Bibi and as per report of the Forensic Science Laboratory, the empties recovered from three places of occurrence matched with the .30 bore pistol recovered from the appellant. Similarly, as per report of the Chemical Examiner, the blood collected from the places of the murder of three deceased was of human being. The appellant in his statement under section 342, Cr.P.C. as well as in the judicial confession made by him before the Magistrate has admitted the committing of the murder of Shaukat Iqbal, Ijaz Hussain and Mst. Fakhra Bibi. The defence version of the appellant is that he on noticing the presence of male deceased with his wife in his house under grave and sudden provocation fired at them. On the contrary, the prosecution story is that the accused killed the three deceased in the same succession due to suspicion of illicit relations of his wife Mst. Fakhra Bibi with two male deceased. Keeping in view the version of the accused, the only 'question for determination would be whether the occurrence was the result of grave and sudden provocation as pleaded by the appellant or it was premeditated on account of illicit relations of male deceased with Mst. Fakhra Bibi. The eye‑witnesses were put suggestion that it was a sudden occurrence as suggested by the appellant but they have categorically denied such suggestion 'and supported the prosecution story. There can be no denial to the fact that the motive behind the occurrence was illicit relations of Mst. Fakhra Bibi with the deceased and keeping in view the said motive coupled with the plea of the appellant, there could be the possibility of happening the occurrence in the manner as suggested by the defence, but the scrutiny of the evidence would show that the appellant having developed suspicion regarding the' illicit relations of his wife with the deceased Shaukat Iqbal and Ijaz Hussain being revengeful committed their murder with premeditation. The contents of the stomach and the urinary bladder of all the deceased would show that the occurrence had taken place early in the morning and the doctor has given the time between the death and the post‑mortem examination from 10 to 12 hours which would negate the defence version that the occurrence took place in the mid night. The medical evidence would provide strong corroboration to the, eye‑witness I account according to which the occurrence of three murders took place early in the morning at three different places. The appellant has not produced any witness from the vicinity in support of his version that Shaukat Iqbal and Ijaz Hussain were also murdered by him or at least they sustained injuries at the hand of the appellant alongwith Mst. Fakhra Bibi at his house. Nazar Hussain P.W. who was next‑door neighbourer of the appellant has not stated a single word that except Mst. Fakhra any', other person was either seen by him in the house of the appellant or any', such person was injured in his house. The appellant has not pleaded the version of grave and sudden provocation before the Police or that in his absence, Shaukat Iqbal and Ijaz Hussain visited his house before the police and also has not made any effort to bring on record his version at any stage during the investigation. The appellant for the first time at the trial introduced this version in the light of the motive suggested by the prosecution. The witnesses who have seen the occurrence of the murder of Ijaz Hussain and Shaukat Iqbal were inmates of the houses and their presence early in the morning in their houses was quite natural and they had no enmity whatsoever against the appellant, therefore, their evidence alone was sufficient to establish the charge. There is also no evidence on record direct or circumstantial of removing the dead bodies of Shaukat Iqbal and Ijaz Hussain from the house of the appellant to their own houses. The blood‑stained earth recovered from the places of occurrence in the houses of Shaukat Iqbal and Ijaz Hussain would fully support the eye‑witness that they were murdered in their houses. The Investigating Officer recovered the dead body of Mst. Fakhara Bibi from the house of the appellant but no one from the inmates of the house was examined as a witness. Mst. Fakhara Bibi with her children was living all alone in her house whereas Nazar Hussain who was witness of the occurrence of her murder was living in the adjacent house, therefore. to the extent of murder of Mst. Fakhra Bibi, at the spot after the sustained injuries and had not 'seen the actual occurrence would not be confidence‑inspiring. The Judicial confession made by the appellant before (P.W.13) Ali Ahmad Sabir Kjani. Magistrate, was to the following effect:‑‑

13. The appellant although resiled from the judicial confession at the trial yet if such retracted judicial confession is found confidence inspiring and seeks corroboration from other evidence brought on record would not be excluded from consideration and would be used as evidence against the appellant. The analysis of the evidence would show that despite the common features of the prosecution case and the defence version to the extent of suspicion of appellant of illicit liaison of Mst. Fakhara Bibi with Shaukat Iqbal and Ijaz Hussain, the version of grave and sudden provocation given by the defence was not supported by any independent circumstance and while putting the two versions in juxtaposition, it would be suggested that the appellant being revengeful against the male deceased for their having developed illicit relations with his wife made up his mind to kill all of them and thus there being no element of grave and sudden provocation, the occurrence was premeditated due to the element of grudge and revenge. The next question for determination would be whether in the given circumstances in the light of motive given by the prosecution for the murders, containing, the element of Ghairat would provide mitigation for lesser punishment. We having considered this aspect of the case find that although family honour of the appellant was involved as suggested by the prosecution itself yet there was no justification to kill the three deceased on the basis of mere suspicion. There was no evidence on record to suggest that any of the male deceased was either seen in the compromising position with Mst. Fakhara Bibi before the occurrence or she was ever found indulged in immoral activities with the male deceased.

14. In the light of the observations made in the preceding paragraph, the possibility cannot be ruled out that the occurrence relating to the murder of Mst. Fakhra Bibi was unseen and it came to the knowledge of the neighbourer after she was killed by the appellant in the house. What prompted the appellant to kill his wife is not known, therefore, to the extent of the murder of Mst. Fakhra Bibi, we being not in favour of extreme penalty of death reduce the sentence of appellant to imprisonment for life. However, we in the light of foregoing discussion are of the view that the appellant was not justified to kill Shaukat Iqbal and Ijaz Hussain only on the basis of suspicion without any proof of their illicit connections with his wife. There would be no excuse for the act of the appellant of killing the abovenamed two deceased in their houses on the basis of his suspicion of their illicit relations with his wife as suggested by the prosecution, therefore the appellant would not deserve any leniency in the matter of sentence for the murders of Shaukat Iqbal and Ijaz Hussain. Consequently, we while maintaining the conviction and sentence of death on two counts awarded to him by the learned trial Judge for the charge of murder of Ijaz Hussain and Shaukat Iqbal dismissed this appeal. The sentence of death awarded to Muhammad Iqbal appellant on two counts is confirmed and the Murder Reference is answered accordingly. J.A.M./M‑876/L Order accordingly