' MUHAMMAD SHARIF, J.--- Both the Murder Reference and the Criminal Appeal, which are being decided by means of this single judgment, arise out of the judgment, dated 4-8-1985, pronounced by the learned Sessions Judge, Ilahawalnagar, who had convicted the appellant under section 302, P.P.C. And had awarded him death sentence and a fine of Rs,5,000 or to suffer one year's R.I. In default thereof. The case has been referred to us for the confirmation of the death sentence. A moiety of the fine, if recovered, was directed to be paid to the legal heirs of the deceased.
2. The facts of this case, in brief, are that Mst. Nasreen Akhtar, the complainant, daughter of Muhammad Siddique lived in Chak No,315/H.R. With her parents. Muhammad Siddique her father was a vegetable seller. About 3/4 years prior to this incident, the parents of the complainant had promised to marry her elder sister Mst. Parveen Akhtar with Niamat Ali, the appellant but a few days back her parents had refused to betroth Mst. Parveen Akhtar with the appellant who felt incensed.
On 18-10-1984 at about 10 or 11 a.m. Mst. Nasreen Akhtar and her elder sister Mst. Parveen Akhtar entered the cotton crop in order to cut grass. The appellant came there and asked her sister Mst.
Parveen Akhtar that she could run where she wished and he would not spare her. He gave a Kassi blow to her sister and the blow was warded off by Mst. Parveen Akhtar with her right hand and her four fingers of right hand were slashed which fell on the ground. Then the appellant dropped Mst.
Parveen on the ground and gave Kassi blows on her neck. Mst. Parveen quivered in agony and succumbed to the injuries on the spot. On the alarm raised by the complainant, Gulzar Ahmad and Ghulam Nabi were attracted to the spot and saw this incident. When the ocular witnesses endeavored to apprehend the appellant, he ran away with his weapon of offence.
3. Mst. Nasreen Akhtar went to the police station and lodged F.I.R. Exh.P.A. At Police Station Marot.
The police went to the spot, collected bloodstained earth, the grass and a cloth intended for wrapping grass from the field. They prepared the injury statement and the inquest report and sent the dead body of Mst. Parveen Akhtar to the mortuary for 'autopsy. Dr. Capt. Mushtaq Ahmad P.W.7 conducted the autopsy on her dead body and has reported the following injuries:--
(1) Neck almOst cut and detached from the body, attached by two skin flaps only. Cut was at the level of suprasternal knotch anteriorily at 7th survical spine posteriorily. The injury was composition of multiple blows of sharp-edged weapon, out of which one on the posterior, aspect was cutting skull at right half occiput and was deep down to brain. Brain matter was leaking through the wound.
(2) All the right four fingers were cut obliquely from the proximal right little finger to middle phalynx of index finger. The thumb was partially cut at distle phalynx.
' This medical expert has opined that death had occurred on account of injuries on her neck which was almost cut.
4. On the same day, the appellant was arrested and his blood-stained clothes Exh.P.3 and Exh.P.4 were got removed from his body, which were taken into possession vide memo. Exh.P.F. He also got recovered the blood-stained Kassi P.5 which was taken into possession vide memo. Exh.P.G. After the completion of the investigation, the challan of the appellant was submitted and he was awarded the aforementioned punishment as a result of the impugned trial.
5. Mst. Rashidan P.W.6, who is the mother of the deceased has stated that llegal order by passing subsequent orders in writing---Such action being unknown in entire Code of Criminal Procedure telephonic order passed by Magistrate was accordingly set aside and case was remanded to Magistrate for proceeding in accordance with law with direction to restore the possession of the quarter to party from whom it was attached. [pp. 1011, 1012] A & B ' Mrs. Salima Nasiruddin for Applicant. Respondent No,2 in person.
Nemo for Respondent No,3.
' Nemo for the State.
' Date of hearing: 4th December, 1989.
' This application made under section 561-A, Cr.P.C., raises an interesting question with regard to an order of attachment passed under second proviso to subsection (4) of section 145, Cr.P.C. By Assistant Commissioner and S.D.M. New Karachi.
2. Applicant Mst. Sarwari claims to have purchased Quarter No,33/21, Sector 5-G, North Karachi, from Mst. Khursheed Begum alias Mst. Malka, respondent No,2, through an agreement of sale.
Barkat Ali Qureshi, respondent No,3 was in occupation of this quarter who was allegedly dispossessed forcibly by Muhammad Qasim alias Bachu, husband of applicant and her two sons.
Barkat Ali Qureshi, respondent No,3, reported this matter to S.H.O. New Karachi Police Station who on 1-8-1988 filed report under section 145, Cr.P.C. Before Assistant Commissioner and S.D.M. New Karachi, who directed S.H.O., New Karachi Police Station on telephone to seal the disputed quarter, which was complied with in the following words:-- NEW KARACHI POLICE STATION No, NK/OR/9006/88, Karachi dated 2-8-1988 ' The A.C. And S.D.M. New Karachi.
' Subject:---Proceedings under section 145 Cr.P.C.
' It is submitted that House No,31/21, Sector 5/G, New Karachi, as per instructions on telephone on 1- 8-1988, was sealed under section ' 145, Cr.P.C. On the same day.
' It is submitted for kind information.
(Sd.)
Station House Officer, New Karachi, Police station, Karachi.
' Copy submitted to the S.D.P.O North Karachi, for favor of information please."
3. It is in these circumstances, that the applicant has approached this Court for abashment of proceedings pending under section 145, Cr.P.C. Whereby she was deprived of the possession of disputed quarter.
4. I have heard Mrs. Salima Nasiruddin, learned counsel for applicant and Mst. Khursheed Begum alias Malka, respondent No,2 in person. Messrs Iftikhar Ali Advocate for respondent No,3 and G.R.
Warsi Advocate for State have preferred to remain absent.
5. The perusal of the record of the Court of S.D.M. New Karachi shows that the report under section 145, Cr.P.C. Submitted by S.H.O. New Karachi Police Station was received by S.D.M. On 1-8-1988, on which the following order was passed:-- "Issue attachment order under section 145(1), Cr.P.C."
' The endorsement on this report further shows that this report was sent back to S.H.O. New Karachi Police Station, why? Nobody kows. It was, however, resubmitted to S.D.M. New Karachi on 5-8-1988 vide No,9044, dated 5-8-1988. The record also shows that on the same day, viz. 1-8-1988, the learned S.D.M. Passed the following order:-- "IN THE COURT OF ASSISTANT COMMISSIONER AND S.D.M., New Karachi.
No, A.C./SDM/NK/ /1988, dated ORDER UNDER SECTION 145(1), Cr.P.C.
' From the report of S.H.O., New Karachi, I am satisfied that there is likely to cause breach of peace exists on the concerning House No, 31/21 Sector 5-G, New Karachi, situated at Sector 5-G, New Karachi between the parties namely Barkat Ali (1st party) !Ind party Muhammad Qasim and Mst.
Khursheed Bibi widow of A7eemuddin. I, therefore, call upon the parties named above to file their respective claims and appear in 'person before this Court on 2-8-1988 at 9-00 a.m.
' One copy of the order to be served upon each party and one copy of order to be pasted on the disputed house.
' Given under my hand and the seal of the Court this 1st day of August, 1988.
(Sd.)
(AHMED FAHIM MUGHAL)
Assistant Commissioner and S.D.M., New Karachi.
Forwarded to S.H.O. New Karachi for compliance and report."
6. One order without number and date passed under section 145(4), Cr.P.C. Also.Fmds place on the record of S.D.M., which is as follows:-- In the Court of Assistant Commissioner and S.D.M. New Karachi.
No, AC/SDM/NK /1988, dated ORDER UNDER SECTION 145(4). Cr.P.C.
' Whereas the second party did not appear before this Court and it appears that there is imminent danger breach of peace on the disputed House No,31/21 Sector 5-G, New Karachi between the parties Barkat Ali 1st party and Muhammad Oasim and Mst. Khrusheed Bibi widow of Azeemuddin who had sold the above house to Barkat Ali.
' I, therefore, order to seal the above-noted house under section 145 subsection (4), Cr.P.C. And report for the compliance to this Court upto 2nd August, 1988.
(Sd.)
(Ahmed Fahim Mughal)
Assistant Commissioner and S.D.M. New Karachi."
7. There is, however, no mention in the order-sheet dated 1-8-1988 about this order passed under section 145(4), Cr.P.C. It may be added that the order-sheets dated 1-8-1988, 9-8-1988 and 21-8- 1988, which contain several overwritings and cuttings are not signed by the Magistrate.
8. The order passed under section 145(4), Cr.P.C. Again indicates that it was passed on the same day when the report under section 145, Cr.P.C. Was received from S.H.O. New Karachi. The second party which according to order-sheet dated 1-8-1988 was required to appear on 9-8-1988 was not expected to appear on 1-8-1988, and consequently it makes it clear that the attachment of the disputed quarter was made on a telephonic direction which was complied with by S.H.O., New Karachi Police Station under intimation to S.D.M. Sent through letter No,NK/OR/9006/88, dated 2-8- 1988, reproduced above.
9. There is no provision in the entire Code of Criminal Procedure, 1898, for passing a verbal order directing a particular S.H.O. To attach a residential quarter by throwing out its inmates. The learned Magistrate apart from not knowing what is contained in section 145, Cr.P.C. Did not choose to take up the book for trying to know what he did not know. He acted like a despotic ruler by directing S.H.O. New Karachi Police Station on telephone to attach the disputed quarter.
' He tried to cover up his illegal order by passing orders in writing at some subsequent stages but in that attempt also he failed.
10. For the aforesaid reasons, I would set aside the telephonic order passed under proviso two to subsection (4) of section 145, Cr.P.C. By learned Assistant Commissioner and S.D.M. New Karachi on 1-8-1988. The case is remanded to learned Magistrate with direction to restore the possession of the said quarter to the party from whom it was attached. However, if upon hearing the parties he considers that circumstances exist warranting the attachment of the disputed premises, he may pass a fresh order of attachment under second proviso to subsection (4) of section 145, Cr.P.C.
11. The application made under section 561-A, Cr.P.C. Is accepted in the above terms.