1. ' M. A. RASHID, J. -Accused Abdul Rauf was tried by Mr. Salahuddin Mirza, Additional Sessions Judge, Karachi for an offence under section 302, P. P. C. And was found guilty of the charge. He has been sentenced to death and the papers are before us under section 374, Cr. P. C. For confirmation of such sentence. The accused person has also preferred an appeal. This order will dispose of both the reference as well as the appeal. Mst. Saeeda Akhtar, daughter of the accused appellant Abdul Rauf was married to one Talib, a very close friend of deceased Shaukat Ali. Shaukat Ali was the person who arranged the marriage which took place some times in 1967. Shaukat Ali and his friend Talib used to work in Kuwait. Mst. Saeeda Akhtar had accompanied her husband to Kuwait but somehow they could not pull on with each other. On their return to Pakistan, after a year's stay in Kuwait, Muhammad Talib divorced his wife. At the time of divorce Mst. Saeeda Akhtar was pregnant. She delivered a daughter later on.
2. ' The dispute about dower which was fixed at Rs, 5,000 and the custody of child could not be resolved. In December, 1969 Muhammad Talib visited Pakistan accompanied by Shaukat Ali deceased and the latter's family. They travelled to Pakistan in Talib's car. On this visit, Abdul Rauf and his daughter again took up the question of dower, maintenance and custody of the child. They visited the house of the complainant Ahmed Ali, brother of Shaukat Ali, who was temporarily living in quarter No, 226/18, Samnabad, Karachi with the uncle of his wife. Mst. Saeeda demanded the payment of dower money. Muhammad Talib agreed to pay the same and also offered to pay Rs, 1,000 towards maintenance provided the custody of the child was given to him. The last condition was not acceptable to Mst. Saeeda and, therefore, they left that today to consider the counter offer.
3. On the next day i,e, 25th of January 1970, Abdul Rauf and his daughter again visited the complainant party. Ahmed Ali, Talib Khan, deceased Shaukat Ali and P. W. Jamil were present on this occasion. One Muslehuddin, a Sub-Inspector of Police, Emigration, intervened between the parties. The condition put forward by Talib was accepted on this occasion and it was settled that the next day i,e, 26-1-1970 Abdul Rauf will meet the complainant party at Lalazar Hotel from where they would go to an Advocate for drafting the compromise ; and that the amount of dower and maintenance will be paid on 29th of January, 1970, in Court. The next day, however, Ahmed Ali, the complainant accompanied by Shaukat Ali and his maternal uncle, Jamil waited at Lalazar for one hour, but Abdul Rauf did not turn up. So they had to come back. On 27th of January, 1970 the complainant, his brother and his maternal uncle Jamil returned to house No, 226/18 at about 3-30 p.m. On arrival, they were informed that Mst. Saeeda had come and was waiting in quarter No, 221/18, which was rented for Talib. They all there met Mst. Saeeda who asked them to pay the maintenance and dower amount directly to her and not to her father. She further stated that she was not willing to part with the child at that stage. However, she agreed to give a written undertaking that the girl would be handed over by her to Talib when she attains the age of four years. Having reached that oral agreement, the parties decided to meet at the house of Muslehuddin, the S. I. P. On the evening of 28th of January, 1976 at 6-00 p.m. To reduce the same into writing. Mst. Saeeda went away and the three of them returned to quarter No, 226/18.
4. ' That day, they had to go to see a plot of land in the company of deceased Muhammad Iqbal. As they reached house No, 226/18, they found Iqbal waiting for them. They all prepared to go.
5. Muhammad Iqbal chose to drive the car of Talib instead of his own. Talib had gone to Rawalpindi the previous night for arranging money. For the purpose of going to see the plot of land the car had to be turned and Muhammad Iqbal got busy doing that. Deceased Shaukat Ali came out of the house, followed by complainant Ahmed Ali and their uncle Jamil. Mehtab Khan, the maternal grand father-in-law of the complainant was holding Baby Fozia, a 15 months old daughter of Ahmed Ali, in his lap. He was standing in the verandah which is in front of the gate of the house. Complainant says that as soon as he came out of the house he noticed that accused Abdul Rauf was standing in the lane close by, in Police Uniform, holding his service rifle and aiming at all of them. It may be mentioned that Abdul Rauf belonged to the regular police force. As soon as he saw them coming out, he started firing. Shaukat Ali was the first to be hit by a bullet. He rushed to the neighbouring quarter No, 227/18 where P. W. Fasihuddin noticing him injured and bleeding took him inside his room. A bullet struck Muhammad Iqbal and he lost control of the car, hitting it against wall of house No, 227/18, felling a portion of the same. Hearing the shots Mehtab Khan with child Fozia, in his lap peeped out but seeing the accused aiming a shot at him, he ducked back. But the bullet fired by the accused hit the child in his lap, grazing his own forehead. He fell unconscious and the child fell from his lap. Ahmed Ali and Jamil ducked down and succeeded in escaping behind the wall of the house. Accused person went on firing at Iqbal and ultimately shot him in the chest from a point blank distance. He also fired at the tyre of the car. Having exhausted his bullets, he started smashing the windscreen and the head-lights of the car with the butt of his rifle and in the process broke the rifle as well. P. W. Iqtidar Hussain who is a shopkeeper in the area heard the fire shots and was attracted to the scene. He saw the accused firing from his rifle and after that damaging the car with the butt of his rifle. He went up to the accused, asked him to restrain himself, and then brought him to his own shop.
6. ' Ahmed Ali escaped from the back door of his house and rushed to Liaquatabad Police Station where he lodged the F. I. R. At 5-15 p.m. It seems that a police party was despatched, soon after the arrival of the complainant, to the scene which arrived at the shop of Iqtidar Hussain and secured the accused along with the broken rifle. The F. I. R. Was recorded by Syed Mukhtar Ahmed Zaidi, the S. H. O. Who immediately proceeded to the scene of occurrence. He prepared the sketch of the scene, recovered two pieces of bullet-lead from the pillar and window frame of house No, 226/18.
7. He prepared the Inquest Report of deceased Iqbal and Fozia. Deceased Shaukat Ali was still alive when the complainant had left for lodging the F. I. R. He was, in his absence, and before the arrival of the S.H.O., removed to Seventh Day Adventist Hospital. But the doctors pronounced him dead on arrival. His Inquest Report was prepared by Sub-Inspector Barkat Ali.
8. ' The dead bodies were sent by the S. H. O. For post-mortem examination. He also sent Mehtab Khan for examination and report. The damaged and bullet-ridden car was secured and inspection memo. Of the same was prepared. He secured blood-stained clothes of all the three deceased persons together with blood-stained earth from the scene of occurrence. All these articles were sent by the S. H. O. To the Chemical Examiner, whose report indicates them to be stained with human blood. He examined the witnesses and after completing the investigation challaned the accused.
9. ' Doctor M. A. Wang performed the post-mortem examination of the dead bodies of Iqbal, Shaukat and Fozia on 28th of January, 1970. Doctor Wang had left Pakistan at the time of trial. His reports about such post-mortem examination were duly proved by Doctor Muhammad Umar Khan, who claimed to be fully conversant with the handwriting of Doctor Wang. According to such reports, deceased Iqbal had the following external injuries on his person :-
(1) Gaping gunshot wound of entry from center of chet between the two breasts.-
(a) 1-1/2" x 1"x7".
(b) 1-1/2" X 1"x5".
(c) 2 x 1/2"x2".
(2) Incised wound 1" x 2" X muscles deep just above the right nipple.
(3) Multiple small blackened spots on the abdomen on right upper arm. (Burn marks by fragments of projectile).
10. ' On internal examination it was found that the 3rd, 4th and 5th ribs on the right side had been fractured. There were gaping wounds on the right lung. Chest cavity was full of blood. Three irregular fragments of metal pieces were recovered from the chest. In the opinion of the doctor, the death was due to severe haemorrhage, as a result of gunshot wounds. He was of the opinion that the wound on the chest was sufficient, in the ordinary course of nature, to cause death.
11. ' Baby Fozia had the following external injuries :- (1)Smashing and cracking wounds 5" X 3"X 3" from right angle of mount, across the neck and right side of face. The wound is gaping with fracture of the lower jaw and gum and teeth, of both upper and lower jaw. The neck arteries and veins were severed exposing the muscles.
12. (2)Contusion mark 1"x 1"x 5" on left side of the forehead.
13. (3)Contusion mark 2"X 3/4" on the right shoulder. In his opinion, injury No, 1 was sufficient in the ordinary course of nature to cause death, which took place due to shock and haemorrhage as a result of this injury.
14. ' Shaukat Ali had the following external injuries on his person :-
(1) A burned and charred fire arm wound just below the right collar bone at the central point measuring 4" in diameter oval in shape.
(2) Two conjoint gaping holes just on left side of the vertebral column at the level of the inferior angle of scapula measuring:
(a) 1" x s" x 3"
(b) 11" X 1" x 3".
15. ' On internal examination the upper lobe of right lung was found punctured through and through. In his opinion, the death had occurred due to shock and haemorrhage. The doctor considered injury No, 1 to be sufficient in the ordinary course of nature to cause death.
16. ' Doctor Wang found the injuries on all the these deceased persons to be anti-mortem.
17. ' At the trial the prosecution examined eye-witnesses Jamil, Mehtab Khan, Fasihuddin, Iqtidar Hussain, Afzal Baqi and Muhammad Siddiq. Complainant Ahmed Ali could not be examined as he had gone out of Pakistan and was not easily available. His statement before the Court of Inquiry was transferred to the Sessions file. Muhammad Akhtar, Lance Naik and Lutfur Rehman, D. S. P. Have also been examined in connection with the issuance of service rifle together with ten cartridges to the accused on the day of occurrence in connection with his official duties. Apart from the S. H. O.
18. Syed Mukhtar Ali other witnesses examined are of formal nature.
19. ' The accused person in his statement before the Court, has admitted the existence of the dispute about dower etc., consequent upon the divorce of his daughter. He admits his two visits, in the company of his daughter, to the house of the complainant on 24th and 25th of January, 1970. He also admits that on the morning of 27th January, 1970, he was issued a rifle with 10 cartridges and was detailed for duty at the Security Printing Press from 9-00 p.m. To 12-00 noon. He further admits that thereafter he went to Keamari alongwith Treasure in the company of Lance Naik Muhammad Akbar and other constables. He also admits that from there he did not go, with other police officials, to the police Headquarters. He, however, claims that from Keamari he went to his house and thence to the house of Shaukat, in Sumanabad. He denies having opened fire on anybody. He claims that he was talking to Talib when he heard the noise of the firing. As he came out of the house, he found his rifle was missing. He saw the car was damaged and his rifle was lying in a broken condition. He also claimed that Talib was illicitly carrying on with the wife of Shaukat and Iqbal had such illicit relations with the wife of Talib. The firing, according to the accused, took place as a result of such dispute. He has led no evidence in his defence.
20. ' The prosecution has established the dispute between the accused and the complainant party over the dower, maintenance and the custody of child. As observed earlier, this dispute is duly owned by the accused person himself.
21. ' The occurrence is proved, with all the details, beyond all shadow of doubt. Apart from the evidence of Ahmed Ali, Jamil and Mehtab Khan, who are the inmates of the house and whose presence at the scene is quite natural, there is the evidence of independent witnesses like Fasihuddin, Iqtidar Hussain, Abdul Baqi and Muhammad Siddiq. Fasihuddin is the next door neighbour living in house No, 227/18. On hearing the fire shots, he came out and saw Shaukat Ali rushing into his house in an injured condition. Noticing that Shaukat needed his help, he was brought by this witness to his room. He ran out to secure some medical assistance for Shaukat and even contacted a doctor in the locality. On the refusal of such doctor, he came back in about ten minute's time and saw that Jamil and Mehtab Khan were in his house who removed Shaukat to the hospital. He found that Mehtab Khan was injured in the forehead. Iqtidar Hussain is also a natural witness who runs a shop in the locality. He was attracted to the scene by gunshot reports. He saw accused Abdul Rauf firing from his rifle and subsequently, damaging the car with its butt. He took the accused to his own shop wherefrom the accused was secured by the police. Another independent witness is Abdul Baqi who lives in the neighbouring house No, 223/18. He saw the accused person in police uniform firing at a person, who was sitting inside a car parked nearby.
22. Later on he came to know that that victim was deceased Iqbal. In presence of this witness accused shot at the chest of Iqbal from a point blank range. Muhammad Siddiq has, in general terms testified to the firing resorted to by the accused. He claims that he hid himself at the first shots fired by the accused and then at the end of firing, he saw the accused being led away by Mir Sahib. He has also testified to the damage done by the accused to the car.
23. ' Mehtab Khan has testified to baby Fozia being hit by a bullet fired by the accused. He was himself injured by the same bullet on the forehead and was examined by doctor Ashfaq Ahmed Ansari. He had an abrasion measuring 3" X 4" X into 1" X 4".
24. ' Evidence of these four witnesses, coupled with that of Ahmed Ali and Jamil Ahmed, duly corroborated by the recoveries of rifle, crime empties, the damaged car and the bullet leads, establishes it beyond all shadow of doubt that it was the accused who indulged in wreck less firing at the inmates of house No, 226/18, and the car belonged to Talib, and thereby caused the death of Iqbal, Shaukat Ali and baby Fozia.
25. ' Mr. Manzoor Hussain, the learned counsel for the accused contends that the accused was labouring under a mental pressure, which was the result of the consequence of the divorce of his daughter. He contends that the accused person in such mental state found his daughter missing from his house when he returned home from duty that day. Learned counsel further contends that in view of the questionable character of Shaukat Ali, Iqbal and Talib, the absence of his daughter from his house must have thrown him into a rage which, according to the learned counsel, is quite evident from the indiscriminate firing resorted to by the accused. From these, the learned counsel wants us to infer that the accused person was acting under a grave and sudden provocation, therefore, culpable homicide committed by him may not be held to amount to murder. This line of argument proceeds upon a hypotheses, which has no basis in the material on record. Firstly, it is incorrect to presume that the accused person had resorted to indiscriminate firing. He had very much discriminated against the occupants of of quarter No, 226/18, and the car belonging to Talib.
26. None of the other persons, though they appeared at the scene at different times after the start of the firing, were fired at by him. It is, therefore, clear that the accused person aimed his shots only at the inmates of house No, 226/18. All others were specifically spared by him. It therefore, cannot be claimed that he had resorted to indiscriminate firing.
27. ' Secondly, the allegation of questionable character of Shaukat Ali, Iqbal etc., is not borne out from record. Even the accused person had not levelled such allegations prior to his examination in the trial Court. Furthermore not a question has been asked in cross-examination, to any of the witnesses about illicit relations alleged by the accused in his statement. As to his visit to his own house, before coming to the scene, there is nothing on record to substantiate it. Thus the premises, on which the learned counsel for the accused has tried to build his case of grave and sudden provocation, do not exist. As observed by their Lordships of the Supreme Court in Muhammad Nawab v. Muhammad Sadiq (1) there is no ground for a finding based on surmises. When the accused does not claim grave and sudden provocation, no such contention can be accepted merely on the basis of conjectures.
28. ' Even if the story put forward in defence could be accepted it would be impossible to stretch the law to the extent as to bring the present case within second Exception to section 300, P. P. C. Finding his daughter missing from his house could not by itself provide a cause of provocation in the circumstances of the present case ; not to speak of a grave provocation. Secondly there was evidently enough time for the accused to think over, as he travelled from his house in Boulton Market to Samanabad, and this fact would eliminate the factor of suddenness, so necessary for bringing a case under such exception.
29. ' On the contrary the evidence on record is that after finishing the unloading of cash at Keamari at about 3-30 p.m. The accused person did not stay with the rest of police party either to have lunch or to proceed to the police headquarters. Instead he proceeded to Samanabad with his service rifle and 10 cartridges. This conduct by itself is indicative of the fact that the accused person had planned the entire scheme for quite sometime and had given it a cool thought. In spite of the settlement reached two days earlier, he thought of taking the course, which he ultimately did, when the service rifle and the cartridges were issued to him. This determination on his part cost three innocent lives. In the commission of the crime the accused person has demonstrated the most of depraved nature of his mind when he tried to kill any and every body who showed himself from house No, 226/18. He killed Iqbal who had nothing to do, even remotely with the marriage, and consequent fortunes of his daughter. He did not even spare a baby of 15 months. He, therefore, deserves the normal penalty of death provided under section 302, P. P. C. I would therefore, confirm his death sentence and dismiss the appeal.
30. ' AGHA ALI HYDER, J.-I agree with the conclusions. {{FOOT NOTE}}
(1) 1973 SCM R 300 {{FOOT NOTE}}