Full Judgment Text & Judicial Ruling

1968 P Cr

1968 P Cr. L J 1799

[Lahore]

Before Bashiruddin Ahmad and Shaukat Ali, JJ

NAEEM AKHTAR‑Appellant

Versus

THE STATE‑Respondent

Criminal Appeal No. 452 of 1967/Murder Reference No. 109 of 1967, decided on 3rd July 1968.

Penal Code (XLV of 1860),

S. 302‑Murder‑----Accused driven to commit murder not by evil and reckless disposition or bad motive but induced to do so by circumstances‑--Evidence on record showing that there was no premeditation or pre‑arrangement but accused losing balance of mind and under sudden impulse committing murder in a moment of extreme excitement‑--Case, held, not proper one for extreme penalty provided under S, 302‑--Sentence of death reduced to that of' transportation for life.

Ajun Shah v. The State P L D 1967 S C 185 ref:

Mian Mahmood Ali Kasuri for Appellant.

Malik Muhammad Jaffer for the State.

Khan Abdul Qayum Khan, Nazar Muhammad Khan and Ch. Feroze Din for the Complainants.

JUDGMENT

SHAUKAT ALI, J.‑--This is an appeal by Naeem Akhtar (30), Rajput, resident of Sukhpur, Police Station Dipalpur, District Sahiwal, who has been convicted and sentenced as under:‑

(i) to suffer death on two counts under section 302, P. P. C. for causing the death of Mst. Mumtaz Begum and Kamran, subject to confirmation by this Court.

(ii) To suffer transportation for life under section 307, P. P.C. for causing injury to Mst. Huma Riaz.

(iii) To suffer three years' R. I. and a fine of Rs. 10,000 (ten thousand) or in default to undergo R. I. for six months under section 456, P. P. C. for having committed lurking house trespass by night in the house of Riaz Ahmad P. W.

The sentences under sections 307 and 456, P. P. C. were ordered to run concurrently with any sentence that might be imposed on the appellant under section 302, P. P. C. in the event of the sentence of death being not confirmed by this Court. He was acquitted of the charge under section 307, P. P. C. for the attempted murder of Mst. Zakiya Begum P. W.

2. It is against these convictions and sentences that the appellant has filed this appeal to this Court. There is also before us under section 374, Cr. P. C. usual reference for confirmation of the sentence of death. We propose to dispose of the appeal and the reference for confirmation of sentence of death by this judgment.

3. The relevant fact are these. Naeem Akhtar is the son of Ch. Allah Dad, a landlord, who was an elected Member of the Punjab Legislative Council from Ambala Division North‑East Muslim Rural Constituency. After the Independence of the Sub‑continent the family settled in Sahiwal District. In the beginning of the year 1962, the appellant came and settled in Samanabad, Lahore. It is said that Mst. Mumtaz Begum deceased along with her two sisters, namely, Akhtar Begum and Zakiya Begum P. W. were also residing in Samanabad. Mumtaz Begum deceased and Akhtar Begum were film stars. Both of them bad played a role in one of the films produced by Riaz Ahmad P. W. who also resided in Samanabad. Riaz Ahmad P. W. contracted a second marriage with Mumtaz Begum deceased. Naeem Akhtar appellant also came into contact with the family of Mumtaz Began. On 1st of December 1963, his marriage was performed with Mst. Zakiya Begum P. W. The couple lived happily for a period of one and a half years. A son was born out of the wedlock. After 1 years' married life the relations between the spouses became strained, as it is alleged that the appellant was short of money. The case of the prosecution further is that the appellant used to ask his wife to arrange money from Riaz Ahmad or procure through any other source to which she did not agree.

4. About 20/22 days before this occurrence, the appellant turned Mst. Zakiya Begum out of his house as she did not comply to his demands. She along with her child Nadeem came to the house of her sister Mst. Mumtaz Begum. Three days later, in the absence of Riaz Ahmad P. W. the appellant came to his house and attempted to take away his son Nadeem. Mst. Zakiya Begun P. W. and Miimta7 Begum deceased foned his attempt. This led to a quarrel and exchange of abuses. The appellant proceeded to Police Post Samanabad and lodged report Exh. P.R. On 18th July 1966. Ch. Muhammad Sharif Sub‑Inspector (P W 17) inquired into the matter and as there was no apprehen sion of the breach of peace or danger to the life of the accused; he did not proceed against either party. 3; 4 days before this incident Riaz Ahmad P. W. left for Hazara in connection with film shooting and left his sister Mst. Surraya P. W. 7 to stay at his house in his absence with his wife Mst. Mumtaz Begun.

5. On the night between 4th‑and 5th of August 1966, Mst. Surraiya P. W. and Mst. Mumtaz Begum deceased Went to sleep P. W. Muhammad Alam P. W servant of the house locked the door of the house and also, went to sleep, At that night the family of Mst. Mumtaz Begum was asleep in the court yard near the verandah of the house. They were on separate cots. Mst. Mumtaz Begum was sleeping on one cot with her child Mst. Anjam. The second cot was occupied by Kamran deceased and Huma Riaz while the third cot, which was next to Kamran deceased and Huma Riaz, was that of Mst. Surraya Begum. Mst. Zakiya Begum P, W, along with her child Nadeem was in one of the rooms of the house, which was closed froth inside. It is paid that at about 2/2‑30 a. m. the appellant armed with a gun scaled over the wall of the house and entered the compound of the bungalow. He fired about six times. The bursts hit Mst. Mumtaz Begun, Kamran and Huma Riaz and caused fatal injuries to Mumtaz Begum and Kamran resulting in their death. Mst. Surraya Begun and Muhammad Aslam P. Ws, beseeched appellant not to kill the child. The appellant attempted to break the gauze of the door of the room with the barrel of the gun where Mst Zakiya Begum was asleep. He fired from his gun inside the room. Whereafter he broke the gauze of the door and put in his hands through the broken gauze and unbolted the door and went in. In the meantime Mst. Zakiya Begun entered the

door of the drawing room from the inside and bolted it and nipped on the back side of the courtyard of the house and concealed herself. Thereafter, the appellant scaled over the wall with his gun and went out. In the meantime there was an uproar outside to apprehend the appellant.

6. On hearing the reports of the gunshots Ch. Muhammad Sharif Sub‑inspector along with the police personnel proceeded

towards that side. The police party accosted the accused who had a gun P, 1 in his hand and a bag P, 9 round his neck. They encircled him and asked him to surrender. The appellant was arrested. The Sub‑Inspector proceeded to the house of Riaz Ahmad P. W. where he found Mst. Mumtaz Begum and Kamran lying dead on the cot. Asst. Surraya Begum lodged report Exh. P. A. which was completed at 4‑30 a. m. The formal first information report was recorded at Police Station Mozang, Lahore,

7. The Sub‑Inspector found one live cartridge in the barrel of the gun P. 1 and two from the bag P. 9. Gun P. 1, bag P. 9, three live cartridges P. 26 to 28 and licence P. 10 were taken into possession vide memo. Exh. P. C. He also collected blood from underneath the cots of the deceased and sealed it into two parcels wide memo. Exh. P. K. He recovered then empty cartridges from the eastern corner of the bungalow and one from the adjoining ladies drawing room. These were made into sealed parcel ride memo. Exh. P. H. He took into possession two pieces of lead from the bed room, two from the drawing room and two from the side of the western wall from the ground and made them into a seated parcel ride memo. Exh. P. J. He took into possession blood‑stained cot P. 29 and blood‑stained beddings P. 11 to P. 14 of Mst. Mumtaz Begum ride memo. P. K./l. He also took into possession mattress P. 15, pillow P. 16 and cot P. 30 of Kamran vide memo. P, K./2. He prepared the injury statement of Huma Riaz. He also prepared the injury sheets and the inquest report relating to the deceased and despatched the dead bodies to the mortuary for post‑mortem examination.

8. The post‑mortem examination on the dead bodies of Mst. Mumtaz Begum and Kamran was held by Doctor Muhammad Khalid, Office of the Police Surgeon. Lahore, on 5th August 1966. In the course of the examination he found that they had received several gun‑shot wounds. In the opinion of the doctor they had died as a result of shock and haemorrhage caused by gun‑shot injuries. He also examined Huma Riaz who had also suffered a fire‑arm wound. This injury was pronounced simple in nature by the doctor.

9. The appellant when examined admitted that Mst. Zakiya Begum is his wife and Nadeem was born out of the wedlock. He stated that after 13 years of their marriage there had been a quarrel between him and Mst. Zakiya Begum, as she was extra vagant. He admitted having lodged the report Exh. P. R. at Police Post Samanabad. He denied having fired at Mst. Mumtaz Begum, Kamran and Huma Riaz. He stated that on 2nd of August 1966, he proceeded to Lyallpur, leaving behind his wife in his house at 7‑A, Chaudhry Colony Samanabad, Lahore. On his return on the night between 4th and 5th of August 1966, he found the house locked and Mst. Zakiya Begum was missing. There after he went to the house of Riaz Ahmad P. W. as he had suspi cion of liaison of test. Zakiya Begum with Haleem, brother of Mst. Sakina Begum first wife of Riaz Ahmad P. W. He scaled over the wall and entered the house where he heard Mst. Zakiya Begum and Saleem whispering in one of the rooms of the house, whereupon he lost self‑control and asked Mst. Zakiya Begum to open the door, but she did not.

He admitted that he had a gun P. I and licence P. 10 with him which he used to keep with him anti that he fired a shot into the room and managed to enter it. He followed Mst. Zakiya Begum and fired 2/3 shots at her and thinking that she was dead, left the house. He also stated that, lie sold some share of his ancestral land and gave Rs. 40,000 to Riaz Ahmad P. W. to invest on his part in the business of films, but that investment did not bring any profit. He also deposed that he was getting Rs. 10,000 to Rs. 12,000 as the annual return from his ancestral land which was managed by his elder brother and that was the main source for the maintenance of the family. He professed that his family was not happy with him, as he had married in the family of film stars. He stated that he himself went to Police Post Samanabad and produced the gun and the ammunition. In conclusion he stated that he belonged to a respectable family. He tendered in evidence besides other documents, sale deed Exh. D. J. and Exh. D. M. a copy of the order of Collector, Sahiwal.

10. The prosecution evidence consists of Muhammad Alam P. W. 4. Mst. Zakiya Begum P. W. 6 and Mst. Surraya Begum P. W. 7. All these witnesses gave a consistent account of the incident. There is no discrepancy in their evidence. The learned Additional Sessions Judge has rightly believed them. He rightly held the appellant guilty of the charges on the strength of this evidence. It would be idle on our part to refer to that evidence in details as we agree with the conclusions reached by him. Moreover, no attempt whatsoever was made before us to impeach them in so far as their ocular account was concerned. The ocular account finds corroboration from the recovery of gun and empties from the scene of offence, which were found to have been fired from gun P. 1. The medical evidence proves that the deaths of Mst. Mumtaz Begum and Kamran were due to gun‑shot injuries.

11. It is conceded before us by Mr. Mahmood Ali Kasuri, learned counsel for the appellant that he caused the deaths of Mst. Mumtaz Begum and Kamran and injury to Huma Riaz, but according to him it was due to provocation at he found his wife Mst. Zakiya Begum missing from his house on the night of incident and in the company of Saleem in one of the rooms of the house of Riaz Ahmad P. W. and as he believed that Mst. Mumtaz Begum was privy to the liaison of Mst. Zakiya Begum with Saleem and was responsible to ruin his matrimonial life, therefore, he should have been convicted under section 304, Part I, P. P. C. In the alternative it was argued that if he is held to be guilty by this Court under section 302; P. 'P. C., the circumstances of the case warrant that he should not be awarded the maximum penalty provided under section 302, P. P. C.

12. It is obvious that the appellant who relies on this Exception to seek to get the nature of the crime perpetrated by him reduced, has to bring his case thereunder and has to prove that he had received such provocation as might reasonably be deemed sufficient to deprive him of self‑control, and that he actually killed the victims while he was actually deprived of self -control. We have now to consider if the appellant's case is covered by Exception 1 to section 300, P. P. C. Excepting the bare statement of the appellant there is nothing on the record to indicate that Saleem had a liaison with Mst. Zakiya Begum. Even the statement of the appellant does not positively show that on the day of incident Saleem was in the room of the house of Riaz Ahmad P. W. with Mst. Zakiya Begum. It might be in the mind of the appellant that his wife who is from the family of film stars had liaison with Saleem. Again there is no evidence on the record to show that Mst. Mumtaz Begum deceased was acting as a go‑between for the liaison of Mst. Zakiya Begun with Saleem. There is no evidence on the record to show that the appellant committed this crime under sudden and grave provocation.

Therefore, we cannot agree with the learned counsel that the killing of Mst. Mumtaz Begum and Kamran made out the offence under section 309, Part I, P. P. C. The case clearly fall under section 302, P. P. C. as there is nothing on the record to make a case of provocation. The deceased were shot and killed without giving any provocation. The other contention of the learned counsel for the appellant that the maximum sentence under section 302, P. P. C. in this case is not called for is not free from difficulty. No doubt, death sentence is the normal sentence in a case under section 302, P. P. C., but they are certain circumstances in the case which have induced us to impose the lesser penalty.

(i) On the material on record it is not possible for us to accept the theory of the prosecution that the appellant induced his wife for prostitution, as we find that the appellant belongs to a family of landlord of Sahiwal district. According to Exh. D. J. on 18th September 1962, the appellant sold his 28 acres of land in village Sukhpur for Rs. 50,000. The other revenue papers placed on the record also go to show that lie still owns land in Sahiwal district. Riaz Ahmad P. W. though denies having received Rs. 40,000 from the appellant, towards the film production, but some material has been placed on the record in the form of posters describing the name of Riaz Ahmad P. W. therein, which go to show that the assertion of the appellant that he contributed Rs. 40,000 towards the filth project was correct. It looks that Riaz Ahmad P. W. found that the appellant was a man of substance and induced him for marriage with Mst. Zakiya Begum and later on also dragged him in the business of film production.

(ii) it is in the evidence of Mst. Zakiya Begun P. W. that Saeeda, sister of the appellant who was living with him in Samanabad, left the house after the marriage of the appellant with her and that the relations of the appellant stopped visiting him. The reason is not far to week as it is obvious that the appellant belongs to old and conservative family and when lie married into a family of film stars he was excommunicated by his kith and kin. After 11 years of married life when his financial position was not so sound as that of Riaz Ahmad P. W. Mst. Zakiya Begum was no longer interested to retain the marriage bond and from the evidence it transpires that her sister Mst. Mumtaz Begun was egging and supporting her. In this state of affairs the appellant might be brooding as to what had happened to his matrimonial life and might have thought that fist. Mumtaz Begum was responsible for the embitterment and strained relations with his wife which might result in break up of the marriage tie. This must have led the appellant in extreme mental agony,

(iii) it is in the evidence of Mil. Zakiya Begum P. W. that the appellant loved his child. There is nothing on the record to show that he was cruel or quarrelsome by nature. On the contrary, Exh. P. R. dated the 18th of July 1966, shows that he is law‑abiding by nature and even for a trivial issue between him and his wife and Mst. Mumtaz Begum deceased he went and lodged the report to the Police.

(iv) letter Exh D. D. dated the 27th July 1966, (page 26 of the paper‑book) of Mst. Zakiya Begun would show that the husband and wife were putting up together in their rented house at Samanabad. This shows that the appellant was keen not to ruin his family life,

(v) the recovery of the licence from the possession of the appellant also lends support to his plea that on the day of the incident he had come back from Lyallpur along with his gun, otherwise, if he had gone intentionally for killing there was no occasion to carry the gun with him.

13. It is a case where the accused had been driven to commit the crime not by his evil and reckless disposition or bad motive, but he might have been induced to do it by surrounding circumstances. In this case, there was no pre‑meditation or pre‑arrangement and there was no secrecy on the part of the appellant. The evidence on the record shows that the appellant was highly excited at the time of the incident and had committed this crime under a sudden and strong impulse. The circumstances on the record show that he had lost balance of his mind and the sudden impulse proved too strong for him to resist and it was under that impulse that he acted quite abnormally and, committed this act in a moment of extreme excitement. We may will advantage refer to the observations of their Lordships of the Supreme Court in Ajun Shah v. The State (P L D 1967 S C 185) which are to the following effect:‑‑

A man is after all a creature of his environment. His action, therefore, must be judges in the background of the society to which he belonged. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty.

14. For the foregoing reasons we are of opinion that it is not really a proper case for the extreme penalty provided for the offence under section 302, P. P. C. This case does call for leniency. In this view of the matter, the sentence of the appellant is reduced to transportation for life on both counts. His convic tions and sentences under sections 307 and 456, P. P. C. are maintained. Needless to add, that these sentences shall run concurrently with the sentence imposed on the appellant under section 302, P. P. C. on two counts. With this modification in the sentence the appeal is dismissed and the reference is also rejected.

Sentence reduced.

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