1985 P Cr (PLP)

3. The complainant disclosed in the F.I.R. that the marriage of her husband's brothers son named, Shamas, took place on 26‑4‑1980. Waleema ceremony was fixed for 27‑4‑1980. Several men and women folk participated in the Waleema ceremony including Muhammad Iqbal appellant and the acquitted accused. The meal was being served in the house of Mubarik Ali at about 3‑00 p.m. Nazeer Hussain deceased, his sons Mumtaz Hussain deceased and Iftikhar Hussain P.W. and brothers Munir and Bashir Hussain P.W. were serving meal to the guests Muhammad Iqbal appellant started abusing Mumtaz Hussain deceased. They quarrelled with each other and came out of the house of Mubarak Ali. The acquitted accused shouted that Mumtaz Hussain be done to death whereupon Muhammad Iqbal took out dagger from his Shalwar. Muhammad Nazeer accused caught hold of Mumtaz Hussain deceased while the appellant inflicted dagger blow to Mumtaz Hussain deceased in the chest. Mumtaz Hussain deceased fell down. In the meantime, Asghar and Tufail accused caught hold of Nazeer Hussain while Muhammad Iqbal inflicted several blows on the chest and other parts of the body. Nazeer Hussain also fell down. Muhammad Sadiq and Muhammad Javid caught hold of Bashir Hussain P.W. The appellant caused injuries to Beshir Hussain P.W. also. Bashir Hussain too fell down. Mumtaz Hussain and Nazeer Hussain died at the spot. The occurrence was witnessed by Mst. Razia Bibi complainant (P.W.9), Muhammad Sharif (P.W.10) Munir Hussain and Iftikhar Hussain P.Ws. (both not produced as unnecessary) and some other persons.

4. The motive for the occurrence was that, accused suspected Mumtaz Hussain deceased of having illicit relations with the wife of Muhammad Javid accused, named Mst. Zahida Perveen.

5. Bashir Hussain was sent to Civil Hospital, Sialkot, in an injured condition. Muhammad Sharif and others remained with the dead bodies of Mumtaz Hussain and Nazeer Hussain. Mst. Razia Bibi and Munir Hussain left for the police station in order to lodge the report. They met Pervaiz Ahmad Butt, S.H.O. at Gul Bahaar Road, where the statement of Mat. Razia Bibi was recorded by the S.H.O. The S.H.O. was not examined in the case as he was not available. Secondary evidence was led to prove the documents prepared by the S.H.O.

6. S.H.O. recorded the statement of Mst. Razia Bibi Exh. P.J. He prepared the inquest reports and injury statements of Nazeer Hussain and Mumtaz Hussain deceased recovery memos of blood‑stained earth from the places of murders of Mumtaz Hussain and Nazeer Hussain, recovery memo. of blood‑stained dagger produced by the appellant, recovery memos of blood‑stained clothes of the two deceased, query in respect of condition of Bashir Hussain P.W., rough plan of the place of occurrence.

7. Captain Dr. Khawar Refique medically examined Bashir Hussain P.W. on 27‑4‑1980 at 5‑30 p.m. and found one incised wound each on the left elbow joint, left forearm, two inches above and lateral to left fore‑arm and right upper arm. All the injuries were simple caused with sharp‑edged weapon within a duration of two to four hours.

8. Dr. Rizwan Ali conducted post‑mortem examination on the dead body of Mumtaz Hussain, at 12‑14 p.m., and found an incised wound on the left side of the chest and an abraded contusion on the right leg. Right chamber of heart, pericardium, lower lobe of right lung were cut under injury No.1. Death was due to shock and haemorrhage on account of injury No.1, which was sufficient to cause death in the ordinary course of nature. Injury No.2 was simple. Injury No. 1 was caused with sharp‑edged weapon while No.2 with blunt weapon. The death was instantaneous and the time between death and post‑mortem examination was 19/20 hours. On the same day, the same doctor, conducted autopsy on the dead body of Nazeer Hussain and found an incised wound on the left side of chest, another incised wound 4" lateral and below left side of the chest, one contusion each on the fore‑head, eye‑brow, middle of nose, left nostril and left temporal region. Diaphragm, left side of pericardium of heart and left chamber of heart with apex were cut under injury No. 6. diaphragm was found cut under injury No.7 also. Injuries Nos. 1 to 5 were caused with blunt weapon while Nos. 6. and 7 with sharp‑edged weapon. Death was due to shock and haemorrhage on account of injuries Nos. 6 and 7, which were sufficient to cause death in the ordinary course of nature. The death was instantaneous. The time between death and post‑mortem was 20/21 hours.

9. Mst. Razia Bibi complainant (P.W.9), Muhammad Sharif (P.W.10) and Bashir Hussain the injured witness (P.W.11) gave the eye‑account of the occurrence. They supported the prosecution version and involved the appellant and the acquitted accused in their statements recorded at the trial. Muhammad Iqbal appellant had inflicted dagger blows to the two deceased and also caused injuries to Bashir Hussain P.W.

10. It was the case of the prosecution that Muhammad Sharif (P.W.10) had snatched the dagger from the appellant and produced it before the S.H.O. when he arrived at the spot. It was also the case of the prosecution that after the occurrence the accused entered the Kotha of Muhammad Sharif son of Ghulam Hussain and chained door from inside while Ataullah P.W. chained the Kotha from outside and locked it. The S.H.O. in this case did not conduct the investigation honestly. Instead of showing the arrest of the accused on 27‑4‑1980, he showed their arrest on 11‑5‑1980. Although the dagger had been produced on 27‑4‑1980, at the spot, the S.H.O. falsely prepared recovery memo. on 16‑5‑1980, in respect of the dagger. The date of the recovery memo. Exh . P.H. had been written with a different pencil and there was also overwriting. Ataullah (P.W.7) stated that after the occurrence the appellant and the acquitted accused entered the Kotha of Muhammad Sharif son of Ghulam Muhammad, where their family members were present and chained the door from inside. He further stated that he locked the door from outside and kept the key with him. He also stated that he noticed the dagger P.6 with Muhammad Sharif son of Piran Ditta P.W. The S.H.O. came to the spot and he handed over the key with which the Kotha of Muhammad Sharif son of Ghulam Muhammad was opened and the accused arrested on 27‑4‑1980. Ataullah further stated that dagger was produced by Muhammad Sharif P.W. Ijaz Hussain (P.W.6) corroborated the statement of Ataullah P.W. by stating that Muhammad Sharif son of Piran Ditta P.W. had produced dagger P.6 which he had snatched from Muhammad Iqbal appellant, before the police, the same day at the spot. The witness stated that the police obtained his thumb‑impression on a paper. Muhammad Azam M.H.C. proved the documents prepared by the S.H.O. Rest were the formal witnesses.

11. Muhammad Iqbal appellant did not admit that he suspected Mumtaz Hussain deceased for having illicit liaison with Mst. Zahida Perveen wife of Muhammad Javid accused. He denied the prosecution allegation. When asked as to why the case was against him, he gave the following answer:‑ "Shamas son of Khadim's in‑laws are closely related to us and they had invited us to attend the marriage ceremony of their daughter and as such I and the co‑accused who are related to me alongwith our women‑folk and children came to Gul Bahaar Khurd to participate in the marriage. On that day, Khadim Hussain invited us to attend the Walima ceremony. We went there at about 10‑00 a.m. At about 1 or 1‑30 p.m. when I was in the street, I heard alarm raised by Mst. Zahida and also I could see that Mumtaz deceased had caught her by the hand and was asking her to dance and as such he insulted and outraged the modesty of my nephew's wife, I under grave and sudden provocation attacked him with a knife which I had with me. In the meantime, Nazir Hussain and Bashir Hussain came there and they also attacked me with Sotas. They caused me injuries and I in order to save my life in exercising my right of self‑defence caused injuries to them. The other accused did not participate in this occurrence. Then the whole family of the complainant wanted to kill us. We took refuge in a room of the house of Muhammad Sharif son of Ghulam Hussain. We chained the door from inside. At about evening time, the police came and took us in custody. My clothes were blood‑stained. I had injuries on my person and I showed these to the Sub‑Inspector. We were kept in the police station for about 15/16 days and when my injuries had healed, I was produced before the Court. My entire family was falsely involved in this case." The acquitted accused denied to have participated in the occurrence. They alleged that they had been falsely involved in the case due to relationship with Muhammad Iqbal appellant. Muhammad Javid accused gave the following answer when asked why the case was against him:‑ "Mst. Zahida is my wife and she had also accompanied us to Gul Bahaar Kalan. She was in the courtyard of Muhammad Sharif's house where Mumtaz Hussain deceased outraged her modesty as given in the statement of Muhammad Iqbal accused. My maternal uncle Muhammad Iqbal acted under grave and sudden provocation and caused injuries to Mumtaz and then‑ he was attacked by Nazir Hussain and Bashir Hussain and was injured at their hands and he caused them injuries in exercise of his right of self‑defence. We saved our lives by taking refuge in a room of the house of Muhammad Sharif and chained the door from inside."

12. Mst. Zahida Perveen wife of Muhammad Javid was examined in defence. She denied that she had illicit liaison with Mumtaz Hussain deceased. She deposed before the trial Court that she alongwith women‑folk, children and male members of the family participated in the Walima ceremony of Shamas, a cousin of Mumtaz Hussain deceased from the bride side; that Mumtaz Hussain deceased caught hold of her by her arm in the house of Muhammad Sharif and asked her to dance with him and in the meantime, Muhammad Iqbal passed thereby and he grappled with Mumtaz Hussain; that the women‑folk and children of her family were present inside the room, she also entered that room; that after some time all the accused entered the room and chained the door from inside; that Muhammad Iqbal was injured and was having a Chhuri in his hand; that the police reached the same evening and took away the accused and the women‑folk to the police station; that the police had also taken into possession the blood‑stained Chhuri from Muhammad Iqbal accused that the women‑folk were allowed to go on the next day but the accused were detained.

13. The learned counsel for the appellant contended that the appellant saw some objectionable behaviour of Mumtaz Hussain deceased and he caused injuries to him under grave and sudden provocation; that Muhammad Iqbal appellant was caused injuries by Nazeer Hussain deceased and Bashir Hussain P.W. and in return he caused them injuries in the exercise of the right of self‑defence of his person; that the defence plea was more probable; that at the most the case was covered under section 304, Part‑11, P.P.C. It was further contended that even if the conviction of the appellant was upheld it was not a case of death sentence. The learned counsel for the State contended that it was a premeditated affair; that the appellant had come determined armed with lethal weapon like dagger; that the appellant had a motive to commit the murders that the defence plea was false and fabricated that Muhammad Iqbal appellant had no injury on his person and he could not claim the right of self‑defence of his person; that the S.H.O. was guilty of committing forgery and he had helped accused party in this case for which application had been made against him to the District Magistrate; and that there was no mitigating circumstances for awarding lesser sentence.

14. We were taken through the entire record. It is admitted on record that the occurrence took place during the Waleema ceremony of Shamas, a nephew of Nazeer Hussain deceased. Meal for this ceremony had been arranged in the house of Mubarik Ali. The appellant and the acquitted accused had come from their respective villages to village Gul Bahaar Kalan to attend the Waleema ceremony of Shamas. Sister of Muhammad Iqbal appellant was married to wife's brother of Shamas. Sister‑in‑law of Shamas was married to Muhammad Akbar, a brother of Muhammad Iqbal appellant. Since the appellant and the acquitted accused were related through Shamas's wife they had come to attend the Waleema ceremony alongwith their women‑folk. Muhammad Iqbal appellant was the person who had inflicted injuries to the two deceased Mumtaz Hussain and his father Nazeer Hussain and also to Bashir Hussain P.W. He was stated to be armed with dagger. Muhammad Iqbal appellant admitted his participation. He admitted to have caused injuries to the two deceased and Bashir Hussain P.W. The only point for determination is as to whether the occurrence had taken place as stated by prosecution or in the manner as stated by Muhammad Iqbal appellant. Mst. Razia Bibi widow of Nazeer Hussain deceased who was mother of Mumtaz Hussain deceased supported the prosecution case by stating that Muhammad Iqbal appellant abused Mumtaz Hussain deceased and came into the lane quarrelling with each other. The occurrence had taken place in the lane in front of the house of Mubarik Ali where Waleema meal had been arranged. Blood‑stained earth was recovered from that spot. The place of occurrence was not in dispute. Beshir Hussain the injured witness corroborated the statement of Mst. Razia Bibi P.W. He alongwith his brothers and nephews was serving meal. This witness also stated that Muhammad Iqbal started abusing Mumtaz Hussain deceased and both of them quarrelled with each other and went into the street. Muhammad Sharif son of Piran Ditta (P.W.10) was distantly related to the deceased. He had also come there from his village to attend the Waleema ceremony. He fully corroborated Mat. Razia Bibi and Bashir Hussain P.Ws. According to the witnesses Muhammad Iqbal deceased had abused Mumtaz Hussain as he suspected him for having illicit relations with the wife of his nephew named, Zahida Perveen. Mst. Zahida Perveen stated that the women‑folk and the children of her family were present inside the room of Muhammad Sharif son of Ghulam Hussain; that she left the house where Waleema arrangement had been made, for the house of Muhammad Sharif as her minor daughter aged one month wanted to make water and it was there that Mumtaz Hussain deceased caught hold of her by the arm and asked her to dance with him and it was then that Muhammad Iqbal appellant came there and grappled with Mumtaz Hussain; that she entered the room where the other women and their children were present. It is not believable that Mumtaz Hussain deceased had asked Mst. Zahida Perveen to dance with him when all the female relatives of Mst. Zahida Perveen were present in the room of the house of Muhammad Sharif son of Ghulam Hussain. It is not understood as to why he picked up Mst. Zahida Perveen for dancing with him on the tune of song. In case Mumtaz Hussain deceased had asked Mst. Zahida Perveen to dance with him the occurrence would have taken place in the courtyard of Muhammad Sharif son of Ghulam Hussain and not in the street. Mst. Zahida Perveen did not say a word as to how the occurrence had taken place and wherefrom Muhammad Iqbal took up the weapon of offence. Muhammad Iqbal stated before the trial Court in his statement under section 342, Cr.P.C. that he had a knife with him with which he caused injuries to the deceased and Bashir Hussain P.W. He did not explain as to why he was carrying a knife at the time of occurrence. Mst. Zahida Perveen deposed before the trial Court that Muhammad Iqbal was having a Chhuri in his hand and he also entered the room in which she took refuge. It was clearly against the statement of Muhammad Iqbal appellant because according to him he had a knife with him. It was the case of the prosecution that Muhammad Iqbal appellant and the other accused alongwith their women‑folk entered the Kotha of Muhammad Sharif son of Ghulam Hussain and chained it from inside. Ataullah (P.W.7) had locked the Kotha from outside. The police reached the spot and Ataullah P.W. handed over the key to the police officer who opened the door anal arrested the appellant and the acquitted accused. The accused also admitted that they had taken shelter ‑in the Kotha of Muhammad Sharif son of Ghulam Hussain. They further admitted that the police came there and brought them out of the Kotha. Muhammad Iqbal appellant stated that Nazeer Hussain deceased and Bashir Hussain P.W. came there and they caused him injuries with Sotas and he acted in self‑defence and caused them injuries. He did not explain from where Nazeer Hussain and Bashir Hussain brought the Sotas. Muhammad Iqbal was not medically examined by the doctor. If he had any injury on his person he or his relatives would have made application to the police or Magistrate praying that he should be got medically examined. No such attempt was made either by Muhammad Iqbal or any of his relatives. It was clearly an indication that Muhammad Iqbal appellant had no injury on his person. Rather an application had been made by Munir Hussain to the District Magistrate, on 8‑5‑1980, stating that the appellant and his co‑accused were shut in a room and they were brought out by the police on 27‑4‑1980, and that a dagger had been snatched from Muhammad Iqbal by Muhammad Sharif P.W. and it was produced before the police the same day but the police had not shown the formal arrest of the accused till 7‑5‑1980, and was contemplating to effect their arrest factiously at a subsequent date. It was further stated in the application that the S.H.O. had damaged the prosecution case. A prayer was made for initiating a Magisterial inquiry against the conduct of the S.H.O. In view of the evidence on record we feel no hesitation in holding that the appellant and the acquitted accused were brought out the same evening from Kotha of Muhammad Sharif son of Ghulam Hussain and the dagger was also produced before the S.H.O. by Muhammad Sharif son of Piran Ditta and the S.H.O. dishonestly conducted the investigation in order to show favour to the accused party. It is a fit case where departmental action should be taken against the S.H.O. by the police authorities.

15. After having considered the entire evidence on record we hold that the occurrence took place in the manner as stated by the eye‑witnesses. Muhammad Iqbal appellant and Mst. Zahida Perveen D.W. had not made correct statements. The defence plea is rejected as being false. Muhammad Iqbal appellant had caused injuries to Mumtaz Hussain deceased but not under grave and sudden provocation. He did not cause injuries to Nazeer Hussain and Bashir Hussain P.Ws. in the exercise of the right of self‑defence of his person. He had a dagger concealed with him before the occurrence. He had come there with the intention of committing the murders. As regards his sentence in respect of the murder of Mumtaz Hussain, we reduce it to imprisonment for life as the appellant had committed the said murder in order to vindicate family honour. He committed murder of Nazeer Hussain (father of Muhammad Hussain deceased) an aged person of about sixty years without any justification. For committing his murder, we confirm his death sentence. The sentences of fine imposed under section 302, P.P.C. on two counts are maintained. The conviction of Muhammad Iqbal under section 307, P.P.C. is upheld and sentence awarded by the trial Court is maintained. The death sentence of Muhammad Iqbal in respect of the murder of Mumtaz Hussain is not confirmed while his death sentence for the murder of Nazeer Hussain is confirmed. The appeal and the murder reference are disposed of accordingly.

16. No injury had been assigned to Muhammad Nazeer, Muhammad Sadiq, Muhammad Javid, Muhammad Asghar and Muhammad Tufail and only Japha had been attributed to them. None of them was armed with any weapon. They were not members of unlawful assembly and they did not share common intention with Muhammad Iqbal appellant. They were rightly given the benefit of doubt and acquitted of the charges. The revision petition is without any force and is dismissed. H.A.K. Death confirmed.