' SAYED ZAHID HUSSAIN, J. ---Pursuant to case F.I.R. No,464 of 1995 dated 19-12-1995 registered with Police Station Burj Wala, District Sahiwal, for an occurrence alleged to have taken place on 19-12- 1995 at 11-00 a.m. Sabir Ali appellant and Bashir Ahmad faced trial under section 302/34, P.P.C. They had allegedly committed murder of Nazir Ahmed, Mst. Shamim Akhtar, Mst. Khurshid and Mst.
Nazia. The charge read out and explained by the trial Court, was denied by them. On conclusion of trial, vide judgment dated 28-7-2001 Sabir Ali appellant was convicted and sentenced to death with condensation of Rs,50,000 on four counts or in default six months' R.I., under section 302(b), P.P.C. The co-accused Bashir Ahmad was however, acquitted. On Ws appeal, which was heard along with the Murder Reference, a learned Division Bench of the Lahore High Court dismissed the appeal on 20-1-2006 and confirmed his death sentence while answering the . On his jail petition, leave to appeal was granted by this Court on 13-4-2007 "to reappraise the evidence in the interest of safe administration of criminal justice." Hence this appeal.
2. Qari Abdul Rasheed, Advocate Supreme Court, the learned counsel for the appellant and Mian Asif Mumtaz, Deputy Prosecutor-General Punjab have been heard. With their assistance, the evidence has " been reappraised.
3. F.I.R. Mentioned above was lodged by Javed (P.W.7) the son of Nazir Ahmed deceased. The salient features whereof have been recapitulated by the High Court as follows: "the facts of the case as mentioned in F.I.R. Exh.PK registered on 19-12-1995 at 11-00 a.m. Are that due to three days earlier quarrel with Bashir Ahmad and father of the complainant on the date of occurrence when the complainant and his father Nazir Ahmad were going to their house, Bashir Ahmad armed with .32-bore Revolver and Sabir Ali armed with .8-mm Rifle, confronted them and Bashir Ahmad raised Lalkara that be killed Javed and Nazir Ahmad, thereupon Sabir Ali fired which hit Nazir Ahmad on his back near the neck, who fell down. The complainant rushed to his house, where Jamil Ahmad (brother), Muhammad Sharif and Safdar were present. After entering the house Bashir Ahmad along with Sabir Ali raised Lalkara that kill all the persons. The complainant along with Jamil, Muhammad Sharif and Safdar after entering in a room bolted its door. Mst. Shamim Akhtar and Mst. Khurshid Bibi (mother and grandmother of the complainant) beseeched the accused but Sabir Ali made two successive fires, which hit on the head of Mst. Shamim Akhtar and on the right shoulder of Mst. Khurshid Bibi. Noise of firing attracted the persons of vicinity. The complainant, Muhammad Sharif and Safdar had seen the occurrence from the holes of the door. When they came out of the room they also heard noise of another fire shot. They abruptly came out in the street and saw that while leaving the spot the accused also fired upon Mst. Nazia on her left arm.
The accused while brandishing their firearms made their escape good from the scene. Nazir Mst.
Shamim Akhtar and Mst. Nazia succumbed to the injuries at the spot. While Mst. Khuishid Bibi was shifted to CMH in injured condition. The motive behind the occurrence is that Bashir Ahmad had suspicion that Jamil Ahmad (brother of the complainant) had illicit relations with Mst. Nazia daughter of Bashir Ahmad..For that reason .a quarrel had taken place between the parties three days earlier to the occurrence."
4. Let us now have a look at the defence version which came on record through the statement of the appellant and his co-accused recorded under section 342, Cr.P.C. Its perusal is absolutely necessary in the background- and the circumstances of this unfortunate incident. While repelling the prosecution version as brought forth, in answer to question No,12 as to why this case was against him and why the P.Ws. Had deposed against him, he answered "It is a false case. The version of which has been changed in a be suiting manner to the wishes of P.Ws. The P.Ws. Are closely related inter-se and with the deceased Nazir, Shameem Bibi and Mst. Khurshid Bibi. Who were not present at the spot and were summoned from Chak No, 46/3.R in the evening time at about 5-00 p.m. On 19-12-1995. The P.Ws. Had their own motive to falsely narrate their own version of occurrence whereas in fact the occurrence has neither happened in the house of any P.W. Nor Nazir had died at the point which is given by the prosecution. The venue of occurrence has been shifted so that a believable aspect of case may look and appeal to human mind. Bashir co- accused is husband of my real sister and Mst. Nazia is thug my real niece and a daughter of Bashir Ahmad co-accused. On 19-12-1995 I was staying in the house of Bashir Ahmad while Bashir Ahmad was away for some personal work since early morning. I was sleeping in the room of Bashir while. I heard noise and weeping of my niece Mst. Nazia and my sister wife of Bashir. On hearing the commotions I abruptly awoke up and took up my rifle and rushed outside in the street and saw Nazir, Mst. Khurshid Bibi, and Mst. Shamim Bibi forcibly taking away Mst. Nazia. I ran after them in the street which was leading towards east and hardly they have reached at a distance of about 10/15 karams in the street when I approached the kidnappers. I snatched Mst. Nazia from Nazir etc. Who rushed back along with me towards my house. At that time Nazir deceased was armed with rifle who exhorted lalkara to Mst. Shameem and Mst. Khurshid Bibi that the parents of Mst. Nazia would file a case against them for abduction so capture her to remove any evidence upon which Mst.
Khurshid Bibi and Mst. Shameem Akhtar again caught Nast. Nazia from the clothes and the hands on one side and I attempted to took her and dragged towards the home of my co-accused Bashir.
During this process Nazir Ahmad started indiscriminate firing in the :street and the fire landed on Mst. Khurshid Bibi, and Mst. Shameem Akhtar due to which they fell in the street. On seeing them injured Nazir became desperate and fired straight at Nazia and me which landed on the back of Mst. Nazia who fell down on the ground but I immediately returned the fire to save myself under grave provocation, shock and rage to defend my life and to save the life of my real niece Mst. Nazia which hit Nazir on the front in the 'street who fell there and died immediately. By that time Nazia had expired, where after I went to Police Post Addah Gamber of Police Station Burjwala and reaching there presented my rifle to the Muharrir and offered my arrest and narrated the occurrence who recorded the same and I was then put behind in a room. The I.O. Of this case came at about 4-00 p.m. And also asked the occurrence about me which I narrated as above.
Thereafter the. I.O. While sitting in the said police choki summoned the P.Ws. From 46/3.R. In fact Muhammad Jameel, P.W., had developed illicit relations with Mst. Nazia deceased and three days prior my co-accused Basher had filed a case for an attempt of abduction, of Mst. Nazia at the hands of Jameel etc. Where after he had ousted Nazir deceased. Jameel P.W. And other family members from the rented room situated in the premises of house of Bashir which aggravated the situation. I did not fire at Khurshid Bibi, Mst. Shameem, and Mst. Nazia. They had succumbed to the injuries due to the firing of Nazir deceased. I had tired only at Nazir under circumstances narrated above. I have no grudge, motive, enmity against any of the deceased. (portions underlined due to its relevance)
5. From the perusal of the version of Javed complaint (P.W.7); it is evident that the cause of conflict and the sad episode was the quarrel and rift between the parties due to illicit relations between Jamil Ahmed, (the brother of the complainant) and Mst. Nazia (the daughter of Bashir Ahmad).
That was the motive stated by him in the F.I.R. Admittedly three days prior to the occurrence there had been a quarrel and tension escalated to the extent that Nazir, the father of the complainant who was tenant of Bashir-Ahmad had to leave the house. It had been denied by the accused side that the occurrence had taken place as projected by the prosecution or Nazir had died at the place shown by the prosecution. A completely different version came to surface from the above version of the defence.
6. These conflicting versions have impelled us to thoroughly reappraise and re-examine the matter minutely. The site plan of the,place of occurrence Exh.P/E, P/E/1 and P/E/2, prepared on the pointation of the complainant and the Investigating Officer by Ishfaq Baig P.W.2 need to be perused carefully. According to the contents of F.I.R. As stated by Javed P.W., it was he along with his father who were coming towards their house from near the Primary School, Basti Islampura, Sabir Ali fired at Nazir who fell down (points Nos.8 and 9) wherefrom Javed escaped and ran towards his house (points Nos. 1, 2 and 3) where (in the house) Jamil Ahmed, his brother, Muhammad Sharif, his maternal uncle and Muhammad Safdar, his brother were present and that Bashir Ahmad and Sabir Ali also entered the house where they killed Mst. Shamim Akhtar and Mst.
Khurshid Bibi, his mother and maternal grandmother and he, Muhammad Sharif, his brothers Jamil and Safdar, had entered a room and bolted it from inside (point No,4). Mst. Nazia is shown to have been killed in the street at point No,5.
7. It is unusual and a strange version of the prosecution beyond expectation of normal human behavior and attitude, that Javed complainant .Left his injured father at the place where according to him. They had encounter with the appellant and Bashir, ran away to reach home where three other male members were present, all of them entered a residential room and locked themselves from inside, leaving the two ladies at the mercy of the appellant and the co-accused. All the four i,e, the complainant Javed, his brothers Jamil and Safdar and their uncle Sharif were of mature age. It not only raises some pertinent questions in the mind but also serious doubts as to the venue and manner of the taking place of the occurrence. The perusal of the site plan materially contradicts the version of Javed complainant P.W. Point No,8 is the place where Nazir deceased is said to have firstly been fired at where lie fell down and died. It is somewhere near an agriculture land (point No,8). Points Nos.l, 2, 3 and 4 are in the house shown in the street towards the north of point No,8. Mst. Shamim Akhtar and Mst. Khurshid Bibi are said to have been fired at and hit in that house. Javed and three others namely Jamil Ahmed; Muhammad Sharif and Safdar also took refuge there. According to the site plan, (Exh.P/E) points Nos.1, 2, 3 and 4 are at a distance of 442 feet from point No,8. It means that after Nazir had been hit at point No,8, Javed complainant ran from that place for about 450 feet but strangely enough was not fired at by the appellant and his co-accused who allegedly were armed with lethal weapons and had chased him but he safely reaches home. Another puzzle in the version is that according to the site plan (Exh.P/E), at point No,10 the presence of Javed complainant, Jamil Ahmed, Muhammad Sharif and Muhammad Safdar has been shown, who saw the occurrence by themselves, the distance between point No,10 and No,8 . (where Nazir died) is shown 64 feet whereas from point No,10, to point No,1 (the house) is 378 feet. This belies the version of Javed complainant/P.W. Who does not disclose in .The F.1.R., the presence of Jamil Ahmad, Muhammad Sharif and Muhammad Safdar at point No,10. It may again be mentioned that points No,10 is at a distance of about 64 feet. From point No,8, where Nazir was allegedly hit by the appellant/convict. Another inherent infirmity in the prosecution version is that neither Jamil nor Muhammad Safdar were produced by the prosecution. If they were eye- witnesses of the occurrence, as per the prosecution version., their non-production militates against the prosecution, adversely. There is a strong presumption and inference deducible from their non- production that if produced and cross-examined the weakness of prosecution would have been exposed. The circumstances do lead to strong inference that the occurrence did not happen in the way and the manner it was stated by the prosecution side.
8. Ashfaq Baig Draftsman, who inspected the spot and prepared the site plan, appeared as P.W.2, was questioned about the residence of Nazir deceased but such a question was not allowed by the court and stated that Javed P.W.7 had not pointed out any residence of Nazir to him. He admits that he had not mentioned the "holes wherefrom the P.Ws. Claimed to have seen the occurrence from inside the room" and that "he had not personally examined through the holes for his experience." He also admitted that he could not "rebut the suggestion that there were no holes." He also stated -that he had not seen any inside bolt. He parried the question that at point No,10 P.Ws: mentioned by him Jamil Ahmed, Muhammad Sharif and Muhammad Safdar were not present. It may be of. Relevance to note that the statement of said draftsman was recorded by the learned Additional Sessions Judge, on 24-7-1999 whereas when this matter was initially before the Special Judge, Anti-Terrorism Court-II, Multan, he had appeared as P.W.1 on 15-5-1998 and a-bout the same site plan he stated that the place where occurrence had taken place was a populated place having population of 5000. People and that all the points from 1 to 10 were told to him by the P.Ws.
Javed complainant, who appeared as P.W.7, the son of Naizr Ahmed deceased, aged 26 years, states that when his father was tired at by appellant and he fell down, he rushed towards home "Where Jamil, Sharif, Safdar, Mst. Shamim deceased and Mst. Khurshid deceased were present in home." If his version is believed that the above mentioned three persons were at home, their presence at, point No:10 of the site plan stand belied and in case they were present at point No,10 at a distance of 378 feet then how and when they reached home, begs answer. This inherent contradiction which is quite material appear to be also the reason that Jamil and Safdar did not appear as witness.
9. Moreover, Javed P.W.7 who.Claims to be furnishing eye-witness account admits the quarrel between the parties three days prior to the occurrence, due to the rift about illicit relations developed by his brother Jamil with Mst. Nazia, the daughter of Bashir Ahmad. He also admits that he had remained in jail in narcotic cases and one case was still pending in which he was on bail.
He states that the-place where Nazir, his father was killed, was 15/16 Karams from the house and it was a thoroughfare where none else was present except us. He stood contradicted by Ashfaq Baig Draftsman and the site plan as to the location, and distance. He admits that none of the accused had fired at him, Jamil Safdar or Sharif. He, however, denied the suggestion that the firing made by Nazir deceased had hit Mst. Khurshid Bibi and Mst. Shamim who started indiscriminate firing in the street, which also hit Mst. Nazia in the street. Muhammad Sharif PW-8, the maternal uncle of Javed P.W.7, states that on the date of occurrence i,e, 19-12-1995 at 11-00 a.m. He along with Safdar, Jamil, Khurshid Bibi and Shamim Akhtar were present in the house where Javed cattle running and informed about the murder of Nazir. He also belies his own presence as also Of Safdar and Jamil at point No,10 of site plan Exh.P/E. He stated that the occurrence was seen by the inhabitants of the locality namely Iqbal Liaqat etc. And several other persons. None, however, was produced. His presence in the house according to him was due to the dispute between the parties about which he had come there to enquire about and that at the time of occurrence he was sitting with Javed along with others in the house. He however, refutes the suggestion that Nazir deceased, Mst.
Shamim and Mst. Khurshid Bibi had abducted Mst. Nazia from the house of Bashir when he was not there and that the appellant intervened as he was present in the house. Muhammad Nazir Sub- Inspector (P.W.9), the Investigating Officer states that site plan Exhs.P/E, P/E/1 and P/E/2 was prepared by Mirza Ashfaq, Draftsman, on 23-12-1995, which pertained to the place of occurrence.
He is said to have prepared inquest report. Exh.P/A/3 but admits to have not mentioned therein "that the dead body was lying at the soiling in front of Primary school" and also did not mention "the house where the dead body of Mst. Khurshid Bibi, Mst. Shamim Akhtar or Mst. Nazia were lying" and also did not mention the presence of any empty lying near any of the dead bodies. He admitted that during investigation he did not probe about the nature of the dispute between the parties. He admitted that P. Ws. Were closely related and there was no independent person (witness) and that Basti Islam Pura consisted of 300/400 houses. In the cross-examination he states that "It is further incorrect that Javed, Jameel, Sharif and Safdar P.Ws. Were not present at the time of occurrence."
This contextually has reference to the presence of these persons at point No, 10 of Exh.P/E site plan.
Their presence here at that point would again will not only be a question mark but also demolishes either way the whole version of prosecution as to the place of occurrence or the manner it was projected by the prosecution.
10. Thus, minute perusal and consideration of the original 'record leads one to the conclusion that the prosecution version inherently suffers from very serious infirmities and self-contradictions as to the venue of its taking place as also the manner it has been projected. There was admittedly a background of quarrels and tension between the complainant and the accused side, the issue being the development of illicit relations by Jamil the son of deceased with Mst. Nazia the daughter of Bashir Ahmad and maternal niece of the convict appellant. The issue of family honour appear to be the strong possibility which gave rise to this unfortunate episode in which four lives including that of Mst. Nazia were lost.. The prosecution version as sought to be projected does not correspond or coincide with the events that stood unfolded by the evidence that came on record i,e, contradiction of the contents of F.I.R. And the site plan and deposition of Mirza Ashfaq Ahmed Baig P.W.2, the testimony of Javed P.W.7, complainant, the testimony of Sharif P.W.8, and the testimony of Muhammad Nazir P.W.9. All suffer from material contradiction. If Jamil, Sharif and Safdar were present at point No,10 of Exh.P/E, wherefrom they witnessed the occurrence i,e, firing at Nazir Ahmed deceased, how they Could be present at the same time at a distant place of 378 feet as per Exh.P/E, and Javed leaving his injured father ran away to the house where all of them got themselves locked inside the room leaving the two ladies at the mercy of the alleged assailants i,e, the convict appellant and Bashir Ahmed caucused, and that they had been seeing the killing of the two ladies Mst. Khurshid Bibi and Mst. Shamim, their mother through the holes of the door. The said holes were, however, not seen by Ashfaq Baig, Draftsman nor shown in the site plan Exh.P/E. This entire puzzle casts very serious doubt about the way and the manner the occurrence took place:
11. Bashir Ahmed already stand acquitted by the court in view of the evidence of the above shaky, feeble' and impeachable character and credibility. The appellant convict pleads his self-defence that he had gone to rescue his niece Mst. Nazia. The unlucky girl Mst. Nazia also lost her life in the street as a result of,firing. The appellant convict admits that he had taken his gun for self defence, which was later recovered. He acted in peculiar circumstances including the family honour. At the most he can be said to have exceeded his right of self defence. It may be observed that section 342, Cr.P.C. Empowers the Court to put questions to the accused, enabling him to explain the circumstances coming up against him in the evidence. The answers given by the accused can be taken into consideration by the Court. This way the accused is given an opportunity to explain his position. Such a statutory opportunity provided to him conforms the requirement of golden rules of natural justice i,e, Audi Alterm partem. Once an accused chooses to render any explanation, it becomes the duty of the Court to consider the same objectively. It is in this way that the provisions Of the law are given full meaning: An outright rejection of his explanation, without giving due consideration, will render these provisions redundant and nugatory defeating the object and purpose of the law. The court is obliged to have regard for such purposive provisions of law. Thus consistent with the legislative intendment, the. Answers given by the accused in the course of questions put to him tinder section 342, Cr.P.C. Wherever, warranted by the facts and circumstances of case, should be given due consideration and effect. The explanation of the appellant in this case when considered in juxtaposition with the entire evidence and background casts serious doubts about the correctness of the prosecution version.
12. It is thus to be seen whether he deserves to be given extreme penalty and maximum dose of death sentence. It may be stated that the law laid down by this Court and settled is that benefit of any reasonable doubt must go to the accused. In Abdul Majid v.. Superintendent and Remembrance of Legal Affairs, Govt. Of East Pakistan (PLD 19p SC 422) it was observed that "the rule which runs. Through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person" ."the doubts were so substantial that to overcome them by reasons to the contrary could only have the result of giving the benefit thereof to the prosecution." In The State v. Manzoor Ahmad (PLD 1966 SC 664), it was observed that "It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt." "It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles. Found there, the motive for the crime and the other surrounding circumstances proved." In Ghulam Sikandar and another v.
Mamraz Khan and another' (PLD 1985 SC 11) it was observed that appraisement of the evidence is necessitated "to see that benefit of every reasonable doubt should be extended to the accused." In Ansar Ahmad Khan Barki v: The State (1993 SCM R 1660) it was held that "The appellant was not bound to prove the hilt his 'plea of defence and had merely to show the circumstances.'suggestive of reasonable possibility that there might be some truth in his allegation." In State v. Farman Hussain and others (PLD 1995 SC 1) it was observed that. "it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that proeess .Not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted." It has come on record and is almost admitted that the cause of this incident was the illicit relations developed by Jamil with Nazia, the daughter of Bashir and niece of the appellant.
This family honour episode resulted in loss of lives.
13. At this juncture, reference to the case Abdul Hague v. The State (PLD 1996 SC 1) may be made, where the appellant therein had taken the plea of provocation, it was observed by Sajjad Ali Shah, C.J. (as he then was) that "In this case Abdul Hague, who is accused of murder, claims the plea of grave and sudden provocation and states that he was deprived of power of self-control. In criminal jurisprudence general principle is that prosecution is to prove the case against the accused beyond doubt and this burden does not shift from prosecution even if accused takes up any particular plea and fails in it. If there is any room for benefit of doubt in the case of prosecution, the same will go to accused and not to prosecution. Section 105 of the old Evidence Act came up for detailed examination in the case of Safdar Ali v. The Crown (PLD 1953 FC 93) and it was held that it is the duty of the Court to review entire evidence that has been produced by the prosecution and defence and after examination of the whole evidence if the Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, then such view would react on the whole prosecution case and accused would be entitled to benefit of doubt not as a matter of grace but as a right because prosecution has not proved its case beyond reasonable doubt. " It was observed that such circumstances can be treated as mitigating in awarding sentence under Tazir even this plea as such is not available and does not get any protection in the new amended law. While adding a separate note Ajmal Mian J. (as he then was) was of the same view that the case did not warrant imposition of death sentence under clause (b) of section 302, P.P.C. And called for lesser sentence of imprisonment for life as proposed by the Hon'ble Chief Justice. In Muhammad Imran alias Imrani v. The State (PLD 2001 SC 956) while taking note of Abdul Haque's case, the Court took into consideration several other judgments on the subject and observed that "in view of the dictum in the cited case the benefit of provocation can be given in a matter of awarding sentence under section 302(b), P.P.C. And as such the cases decided before the amendment in the law involving family honour and provocation can be taken into consideration while determining the fact of sentence. It was held in "Ajun Shah v, The State" PLD 1967 SC 185: "That a man isafter all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. Though lie 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. Rule laid down in "Muhammad Din alias Manna v. The State" 1976 SCM R 185 is to this effect:--"Coming now to the question of sentence, we find that there is merit in the submission made by Clr. Fazal-i-Haq that the murder of Khushi Muhammad was motivated by a sense of family honour inasmuch as the sister of the appellant had repeatedly eloped with this man. In Fazal Khan v. State (PLD 1964 SC 54) Ghulam Rasul v. Ali Akbar (PLD 1965 SC 363), Muhammad Ramzan v. The State (PLD 1966 SC 129) as well as in Ajun Shah v. The State (PLD 1967 SC 185) it was observed that questions of family honour, touching the females of a family, were of almost overpowering importance to the agricultural tribes of the western regions and they feel bound in duty to go to very great lengths to vindicate that honour. It was held that this was a circumstance of which notice could appropriately be taken by the Courts in the matter of awarding sentence. In all these -cases, sentence of transportation for life was considered as being appropriate. Following these precedents we are inclined to the view that in regard to the murder of Khushi Muhammad, the sentence of death was not called for. We would accordingly set it aside and instead substitute the sentence, of imprisonment for life."
14. On reappraisal and re-examination of the evidence and keeping all aspects of the matter in view the possibility cannot be ruled out that the occurrence had not taken place as was sought to be proved by the prosecution and that the appellants reaction to the situation was due to the peculiar back ground and incident of family honour. He appears to be forth right, who admitted about occurrence having taken place but, not at the place and manner the prosecution had painted it. Due to his admitted role, he is not entitled to clean acquittal but certainly not liable to be inflicted the extreme penalty of death. The ends of justice will be met he is sentenced to imprisonment for life, which is equally a sentence envisaged by section 302(b), P.P.C. ##ES##
15. As a result of the above, this appeal is partly allowed, converting the death sentence awarded to the appellant to life imprisonment. His conviction and rest of the sentences will remain intact. He however will be entitled to the benefit of section 382-B, Cr. P . C .
Sentence reduced.