1985 PLP 79 (MLD)

MUHAMMAD SARWAR, J.--Muhammad Rafiq son of Ghulam Muhammad (aged 28 years) was convicted under section 302, P.P.C., by learned Additional Sessions Judge, Lahore, vide judgment, dated 19-11-1977, for the murder of Mst. Nasim Akhtar, his wife (aged 24 years) and Muhammad Faisal his own infant son (aged 8/7 months) and sentenced to death on both the counts and a fine of Rs.2,000 on each count and in default of payment of fine, to undergo one year's R. I. each. If the amount of fine is realised, half of the same has been ordered to be paid to the heirs of the deceased. The convict has filed Criminal Appeal No. 1091 of 1977 and Murder Reference No. 32 of 1978 is also before us for confirmation of the sentences of death. Both these matters shall be disposed of together by this judgment.

2. The occurrence in this case took place on 24-7-1975, at about 3 a.m. , in the house of the appellant in Mohallah Hussainabad, Chah Janiwala, Pakki Thatti, Lahore. The matter was reported by. Mst: Fazal Bibi (P.W.9) mother of Mst. Nasim Aklrtar deceased who made a statement (Exh.P.E.) to Muhammad Siddiq, S.I. (P.W.11) at Chowk Millat Road. at 3-40 a.m. the same day. On the basis of Exh.P.E., formal F.I.R. (EXtr.P.E/1) was recorded at Police Station, Nawan Kot at 4 a.m. on 24-7-1975.

3. The brief facts, according to the statement of Mst. Fazal Bibi (Exh.P.E.), are that her daughter Mst. Nasim Akhtar deceased was married to the appellant 3 years ago and the appellant was putting up at Chah Janiwala, Mohallah Hussainabad, alongwith his wife. Out of the wedlock, two sons, namely, Muhammad Taufid (aged 21 years) and Muhammad Faisal deceased (aged 6/7 months) were born. About 10/11 months prior to the occurrence, the appellant went to Qatar to live with Muhammad Saleem son of Mst. Fazal Bibi and, according to her, was living there for the last seven years. The appellant came back to his house from Qatar two days before the occurrence. The complainant was also informed and accordingly, on the preceding night, she alongwith Muhammad Tufail, a cousin of Mst. Nasirn Akhtar deceased, came to the house of the appellant and soon thereafter Muhammad Shafi (P.W.10) who resides at Bakar Mandi, Lahore, also arrived. Mst. Nasim Akhtar deceased insisted that Muhammad Tufeil, Muhammad Shafi and Mst. Fazal Bibi should stay there for the night and consequently they were present in the house of the appellant. The appellant went into the room alongwith Mst. Nasim Akhtar and Muhammad Faisal (infant) for a sleep and Muhammad Taufiq, another son, was sleeping alongwith Mst. Fazal Bibi, Muhammad Tufail and Muhammad Shafi P.Ws. All of a sudden, at about 3 a.m., they heard cries from the room of the appellant and went towards that side. Bulb of the room was on and Muhammad Rafiq appellant was seen giving Toka blows to Mst. Nasim Akhtar deceased on her neck, arm and leg who succumbed to the injuries and at the same time the appellant gave a Toka blow on the neck of Muhammad Faisal infant and he too died there and then. Muhammad Tufail (P.W.7) bolted the door from outside so that the appellant might not run away. The motive, according to Mst. Fazal Bibi (P.W.9), is that the appellant Muhammad Rafiq suspected Mst. Nasim Akhtar deceased of immoral character and on that account he had killed her and his infant son Faisal.

4. The eye-witness account of the occurrence has been given by Muhammad Tufail (P.W.7), cousin of Mst. Nasim Akhtar deceased, Mst. Fazal Bibi (P.W.9) real mother of Mst. Nasim Akhtar and Muhammad Shafi (P.W.10), husband of a cousin of Mst. Nasim Akhtar deceased. It may be pointed out that Muhammad Tufail went outside country after the incident and his statement was transferred under section 33 of the Evidence Act to the file of the trial Court as P.W.7.

5. Sh. Muhammad Siddiq S.I. (P.W.11), on reaching the spot, unchained the outer door of the room where the appellant, alongwith his deceased wife and son, was present on 24-7-1975, immediately after the recording of Exh.P.E., a blood-stained Toka (f.7) was recovered from the appellant which was taken into possession vide memo. hxh.P.F. attested by Muhammad Shafi, Muhammad Tufail and Sh. Muhammad Siddiq S.I. (P.Ws) and at the same time blood-stained Dholi (P.10) and blood stained Banyan (P.11) were removed from his person and were taken into possession vide memo. Exh. P.J. which was attested by the same witnesses.

6. Dr. Tahir Anis of Medical Institute, Lahore (P.W.8) performed the autopsy on the dead body of Mst. Nasim Akhtar on 27-7-1975 at 3-30 p.m. and found the following injuries:-- (1) Cut incised wound right back aspect of upper part of neck encircling about 2/3rd of neck circumference. Head and face were attached to lower neck by tag of skin and little tissue 4 " wide on left front aspect, 4th cervical vertebral body showed cut through and through. Both carotid arteries as well as major veins, nerves and most of muscles were cut in extent 9 ". (2) Cut incised wound all around lower left arm and upper left forearm in area 9" x 2 ". Left elbow joint was dislocated completely without any fracture. Left forearm and hand lay separate from rest of body. (3) Cut incised wound all around lower right thigh incised wound and upper right leg and foot lay separate -altogether. The wound measured 12" x 7". There was fracture of right femur. All the injuries were inflicted by sharp-edged weapon. Death was caused due to injury No. 1 through shock and haemorrhage which was sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate and between death and post-mortem about 12 hours. On the same day at 4-30 p. m. this witness also performed the post-mortem examination on the dead body of Muhammad Faisal infant and found a cut incised wound all round the neck in its upper part, sparing right side so that head and face were attached with the rest of body only by a tag of skin and superficial fascia, 2" wide on right side, 3rd cervical vertebra was cut through and through along all structures of neck. This injury was inflicted by a sharp-edged weapon Pad was sufficient to cause death in the ordinary course of nature through haemorrhage and shock. The probable time between injury and death was immediate and-between death and post-mortem about 12 hours.

7. The appellant denied the allegations of the prosecution and pleaded in defence that Saleem and his mother-in-law Mst. Fazal Bibi were against the appellant on account of a dispute regarding his service in Qatar. He wanted to join the marriage of his sister-in-law Mst. Nasreen but Saleem, his brother-in-law, insisted that the appellant should remain in Qatar and he would return to Pakistan to attend the marriage. Since the occurrence had taken place, these witnesses named him as an accused on suspicion as well as due to the personal grievance against him.

8. Learned counsel for the appellant has argued that the prosecution witnesses are related to the deceased and, therefore, their statement cannot be made the basis of conviction of the appellant. We have gone through the entire record and the evidence with the help of the learned counsel. We are satisfied that the prosecution witnesses have corroborated the F.I.R. in each and every material and they are quite truthful and natural witnesses of the occurrence. Their testimony inspires confidence and we have no reason to disbelieve merely because they are related to the deceased. In fact, the learned counsel was unable to elicit anything favourable to the appellant from the statements of these witnesses. We also find from the statement of the appellant that he had admitted that the came from Qatar a day before the night of occurrence and had left for Qatar ten months before the death of Mst. Nasim Akhtar. He also admitted that Dhoti (P.10) and Bunyan (P.11) were taken from his person on 24-7-1975 and these articles have been claimed by him as his own. However, he stated that he was weeping acid while embracing the dead body, these clothes were smeared with blood. He also admitted that a blood-stained Toka was found on the floor of the room near the bed, which was taken into possession by the police on its arrival. The Chemical Examiner by his report Exh.P.N. found that Toka (P.7), Dhoti (P.10) and Bunyan (P.1.1) were stained with blood and the Serologist, in his report (Exh.P.E/1), opined that these articles were stained with human blood. We, therefore, hold that the appellant was responsible for causing the death of the two deceased.

9. Learned counsel for the appellant, in an upright manner, argued that this is a case of lesser punishment because, according to him, at the time of occurrence, no body knows what actually transpired between husband and wife immediately before infliction of injuries. We find from F.I.R. that motive for the murder was that the appellant had suspected Mst. Nasim Akhtar of immoral character and similarly from the statement of Mst. Fazal Bibi (P.W.9) it is proved that the appellant respected Mst. Nasim Akhtar deceased of loose character. Therefore, a possibility cannot be ruled out that when the appellant returned from Qatar and while he was in bed with the deceased, he might have asked the lady relating to her immorality and it is not known what answer she gave or what talk took place between them. May be, the deceased either admitted the accusation or immorality against her or said something which provoked the appellant at the moment to such an extent that he lost all control and senses and caused injuries with a Toka (P.7) which might be present in the house. In our view, this seems to be a case of grave and sudden provocation. We, therefore, set aside his conviction' under section 302, P.P.C. and instead convict him under section 304, Part I, P.P.C. on both the counts. Since the appellant caused the deaths of his wife and his infant son, we sentence him to undergo imprisonment for life on both the counts. Both the sentences shall, however, run concurrently. With this modification, the appeal filed by Muhammad Rafiq is dismissed and at the same time we refrain, from confirming the sentence of death. The sentence of fine is also maintained. S. G. D. Order accordingly.