' ABDUS SATTAR ASGHAR, J.---Ali Ahmad son of Khalil Ahmad faced trial with regard to qatl-e-amd of Raheel Arif, nephew of the complainant Imtiaz Ahmad and Rabia Khalil sister of the accused in case F.I.R. No,155 of 2006, dated 23-4-2006 in the offence under section 302 of the Pakistan Penal Code 1860, registered at Police Station City Gojra District Toba Tek Singh. At the conclusion of the trial vide judgment dated 15-5-2007 learned Additional Sessions Judge, Gojra convicted Ali Ahmad under section 302(c), P.P.C. And sentenced him to 10 years' R.I. He was acquitted of the charge under section 364, P.P.C. Given benefit of doubt. Benefit under section 382-B, Cr.P.C. Was also given to him. The convict has lodged Criminal Appeal No,836 of 2007 against his conviction and sentence. The State has lodged Criminal Revision No,737 of 2007 seeking enhancement of sentence of Ali Ahmad. Imtiaz Ahmad complainant has also lodged Criminal Appeal No,1053 of 2007 under section 417(2-A) read with section 439, Cr.P.C. Against acquittal of Ali Ahmad from the charge under sections 302(b) and 364, P.P.C. We intend to decide all the above said matters through this judgment.
2. Prosecution case as divulged through F.I.R. (Exh.PL/1) recorded on 23-4-2006 at 3-50 a.m. On the basis of statement (Exh.PL) of Imtiaz Ahmad, is that on 21-4-2006 complainant's brother Muhammad Nawaz was admitted in Bashir Clinic Gojra for treatment of heart problem therefore all the family members of the complainant used to visit the said clinic to inquire about the health of Muhammad Nawaz, that on the last night (in between 22/23-4-2006) the complainant along with his nephews (Bhanjas) namely Adeel Arif, Raheel Arif and Ali Ahmad (appellant) were present in the Clinic; that the same night at about 2-1/4 a.m. Ali Ahmad (appellant) asked Raheel Arif to take him to the house therefore both of them went out that at about 3-00 a.m. Night the complainant along with Hassan Iftikhar and Adeel Arif also proceeded to home on motor cycle and when reached Mehdi Mohalla they heard report of fire-shot, that in the light of electric bulb liting in the street and in the light of motorcycle they saw that the appellant was indiscriminately firing at complainant's nephew Raheel Arif who fell down on the ground, that having sight of the complainant and P.Ws. The appellant went inside the house and bolted the door from inside; that within a few minutes Raheel Arif succumbed to the injuries at the spot; that simultaneously they heard report of 4/5 fire-shots from inside the house of the appellant. Motive was that Ali Ahmad appellant had suspicion that his sister Rabia Khalil (deceased) had illicit relations with Raheel Arif (deceased).
3. After completion of the investigation the police submitted report under section 173, Cr.P.C.
Against the appellant in the court. Learned trial Court framed the charge against him on 2-12-2006 under sections 364 and 302, P.P.C. On two counts to which he pleaded not guilty and claimed to be tried.
4. Prosecution produced as many as 13 witnesses to prove the charge against the accused/appellant. Imtiaz Ahmad Gill complainant (P.W.11), Hassan Iftikhar the alleged eye-witness (P.W.12), Dr. Wasim Ullah Khan Medical Officer (P.W.5) who conducted postmortem examination on the dead-body of Raheel Arif, Dr. Subah Seemi WMO, Eye-Cum-General Hospital Gojra (P.W.10) who conducted the postmortem examination on the dead body of Rabia Khalil and Habib-urRehman SI (P.W.13) Investigating Officer of this case are material witnesses. Rest of the witnesses are of formal nature.
5. At conclusion of the prosecution evidence Ali Ahmad accused/appellant was examined under section 342, Cr.P.C. Wherein he denied the prosecution evidence and pleaded his innocence. In reply to question "Why this case against you and why the P. Ws. Deposed against you" he stated as under:-- ' "The case against me is false. All the P.Ws. Belonged to one group and they have deposed against me due to enmity. I produce certified copy of F.I.R. No,115 of 1990 P.S. City Gojra under sections 336/323/148/149, P.P.C. Dated 24-4-1990. Hassan Iftikhar P.W. And others including Ijaz Gill had assaulted me and a case was registered against them. Certified copy of F.I.R. Is Exh.DH. The prosecution witnesses had a motive to falsely implicate me. They have deposed against me against the facts due to their personal revenge".
In answer to question "Have you anything else to say" he stated as under:-- "I am innocent. The real facts of the present case are that I had family terms and good relations with Muhammad Nawaz Gill and also friendly terms with Raheel Gill. Muhammad. Nal!Az Gill suffered heart attack on 21-4-2006. He was admitted in Bashir Clinic Quaid-i-Azam Road, Gojra. His wife and daughter remained present with him round the clock and I used to visit him during night regularly and during day hours occasionally. On the night between 22/23-4-2006 I was present with Muhammad Nawaz in Bashir Clinic. At midnight he felt a severe pain in his left arm. I had informed the dispenser about the precarious condition of Muhammad Nawaz Gill and on his information doctor had attended the patient. At that time through telephonic message I had informed Ijaz Gill Nazim U.C., the real brother of Nawaz Gill and Raheel Gill, real Bhanja of Nawaz Gill about the serious condition of Muhammad Nawaz. They both had come to the clinic after some time. The condition of Muhammad Nawaz Gill became O.K. Then Raheel Arif had gone on the pretext that his mother is alone at home. At about 3 p.m. When Muhammad Nawaz's condition was satisfactory, I left the clinic for my home. When I reached my house towards St. No,4, gate was lying open. Thereafter I went inside my office and found my sister Rabia Khalil and Raheel Arif both committing zina with each other. I was holding my licensed pistol, I lost senses and self-control and in the above said circumstances under grave and sudden provocation I made fire with my pistol on Raheel Arif when he was trying to flee away from the spot and he sustained injury on his shin in the deohri and he fell down .Outside the house in street. Then I made successive fires with pistol which landed on different parts of his body and in the same mental condition I went inside the house and made fire with repeater gun on my sister Rabia Khalil and she also fell down. Thereafter I came back in the street and I made further firing on Raheel Arif with repeater gun .12 bore. The occurrence was not witnessed by the P.Ws. After, the occurrence I had informed the police at Police Station through telephone and informed them about the present occurrence. On arrival of the I.O. I had informed Ijaz Gill Nazim U.C. Through telephonic message, thereafter the complainant had come to the place of occurrence with Mehtab Ahmed Cheema and concocted this false story and involved me in this false case. I was in police custody since 23-4-2006. On the asking of I.O. On 24- 4-2006 I had written my statement and produced the same before him which is now on judicial record as Exh.DG. The underwear of Rabia Khalil was found to be stained with semen."
' The accused did not appear to make statement on oath under section 340(2), Cr.P.C.
6. Learned counsel for the appellant Ali Ahmad argued that the appellant has raised a specific plea that in the late hours of the fateful night he saw Raheel Arif aged about 19 years (deceased) committing Zina with his real sister Mst. Rabia Khalil aged about 18 years (second deceased) in the office room of his house and committed their murder under grave and sudden provocation; that in the inquest report Exh.PN/3 of Rabia Khalil the Investigating Officer had also raised a query to the doctor as to whether Zina was committed with Rabia Khalil or not; that the occurrence took place inside the house of the appellant and that blood trail observed by the Investigating Officer was also verified by Syed Kazim Hussain Gillani Draftsman (P.W.1) who prepared the' site-plan Exh.PA and Exh.PA/1; that in the report of the Chemical Examiner Exh.PO the under wear of Rabia Khalil was found stained with semen; that on the basis of report of Chemical Examiner (Exh.PO) Dr. Sabha Seemin (P. W.10) who conducted postmortem examination on the dead-body of Rabia Khalil opined that Rabia Khalil was subjected to sexual intercourse; that the Chance witnesses produced by the prosecution cannot be relied upon therefore conviction and sentence awarded to the appellant by the learned trial Court against law and facts are untenable and liable to set aside; that in the circumstances the appellant deserve acquittal.
7. On the other hand learned DPG for the State assisted by the learned counsel for the complainant contended that occurrence has been admitted by the appellant, however this is not a case of grave and sudden provocation; that in fact the appellant having suspicion of illicit relations of Raheel Arif (deceased) with his real sister Rabia Khalil (deceased) enticing Raheel Arif from the Hospital took him along and wilfully murdered him, that the prosecution has established its case with the help of reliable and confidence-inspiring ocular account corroborated by medical evidence; that as per evidence available on the record both the deceased were found claded at the time of occurrence therefore the appellant's plea that he had seen them committing Zina is baseless; that the appellant's plea that the occurrence took place inside his house is also not established on the record; that no inmate of the house was produced by the appellant in defence; that nature and locale of the injuries on the body of Raheel Arif (deceased) also belie the defence version; that the learned trial Court fell in grave error while convicting the appellant under section 302(c), P.P.C. Considering it a case of grave and sudden provocation against law and facts; that the judgment of the learned trial Court is liable to set aside; that the appellant committed qatl-e- amd of Raheel Arif and Mst. Rabia Khalil both aged about 18/19 years on the pretext of honour attracting the offence under section 302(b), P.P.C. And deserve capital punishment of death on two counts.
8. Arguments heard. Record perused.
9. Article 121 of Qanun-e-Shahadat Order, 1984 provides that in a case where the occurrence is admitted and the accused pleads his case with the exceptions the burden of proof automatically shifts on him to prove the plea raised by him. It may be expedient to reproduce the Article 121 of the Qanun-e-Shahadat Order, 1984 which reads below:-- "Art.
121. Burden of proving that case of accused comes within exception. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence, of such circumstances."
10. In this case appellant's plea in his statement under section 342, Cr.P.C. Is that on the fateful night at about 3-00 a.m. When he reached his house towards Street No,4 the gate was open; thereafter he went inside his office room and found his sister Rabia Khalil and Raheel Arif both committing Zina; that he was holding his licensed pistol; that he lost senses and self-control and under grave and sudden provocation made firing on Raheel Arif when he was trying to flee away from the spot who sustained injuries on his shin in the deohri' and fell down outside the house in the street; that he made successive fires with pistol on different parts of the body of Raheel Arif and in the same mental condition went inside the house and made fire with repeater gun on his sister, Rabia Khalil and she also fell down; that thereafter he came back in the street and made further firing on Raheel Arif with repeater gun .12-bore.
11. It is pertinent to mention that in order to discharge the shifted burden of proof appellant Ali Ahmad did not appear in the witness-box in terms of section 340(2), Cr.P.C. Nor produced any defence witness. No inmate of the house is produced in support of the defence plea that the occurrence took place inside the house. Inquest report (Exh.PG) of Raheel Arif (deceased) prepared by the Investigating Officer and postmortem report (Exh.PE) reveal that his dead-body was claded in pent, T-shirt and underwear. The inquest report (Exh.PN/3) of Rabia Khalil prepared by the investigating officer shows that she was wearing shirt and Shalwar and according to her postmortem report (Exh.PN) prepared .By Dr. Subha Seemin (P. W.10) her dead-body was wearing ' Shalwar, Kameez, Dupatta, brazier and underwear. It therefore belies defence version that the appellant had found Rabia Khalil and Raheel Arif committing Zina. According to post mortem report (Exh.PE) prepared by Dr. Wasim Ullah Khan (P.W.5) dead- body of Raheel Arif was claded in pent, T-shirt and underwear, however under-wear of deceased Raheel Arif was not sent to the Chemical Examiner. Report of the Chemical Examiner (Exh. P0) transpires that vaginal swabs of Rabia Khalil were not stained with semen, however her underwear reportedly was found stained with semen. It is astonishing that Lady Doctor Subha Seemin (P.W.10) in her final opinion after receiving report of the Chemical Examiner has opined that Rabia Khalil was subjected to sexual intercourse. In the absence of any substantial piece of evidence mere report of the Chemical Examiner that underwear of Rabia Khalil was found stained with semen cannot be made basis to formulate the opinion that she was subjected to sexual intercourse. Opinion of Dr. Subha Seemin (P.
W.10) therefore is of no avail to the defence version.
12. The defence version is that the appellant saw Rabia Khalil and Raheel Arif committing Zina in the office room of his house. It is astonishing that he did not make any fire upon them in the office room.
13. Defence version is that he made fire on the shin of Raheel Arif in the deohri when he was trying to flee away from the spot who fell down outside the house in the street. In the site-plan Exh.PR although point No,5 indicates blood spots in the `deohri' however no blood trail is shown by the I.O.
From point No,5 to point No,1 situated in the street where the dead-body of Raheel Arif was found lying. Habib-ur-Rehman SI (P.W.13) the Investigating Officer of this case in his examination-inchief has not mentioned about any trail of blood from point No,5 to point,. No,l. Defence side has also not suggested availability of any blood trail in between tae said two points while cross-examining him.
Syed. Kazim Hussain Gillani Draftsman (P.W.1) who prepared the site-plan Exh.PA on 25-4-2006 has also not shown any blood trail from point No,5 to point No,
1. It therefore falsify the defence version that Raheel Arif deceased sustained any injury at point No, 5 in the deohri inside the house.
14. Another plea raised by the defence is that after making fire-shots with pistol upon Raheel Arif in the street the appellant went inside the house, killed his sister Rabia Khalil with-gun .12-bore and again came out in the street and made repeated fire-shots with gun .12-bore upon Raheel Arif. It is also not supported by medical evidence. Dr. Wasim Ullah Khan (P.W.5) who conducted postmortem examination on the deadbody of Raheel Arif in his postmortem examination report (Exh.PE) observed following injuries:-
(1) A firearm entrance wound 1.5 cm x 1 cm x deep going (DNP) on the outer side of left middle chest and the bullet was recovered from the outer side of right middle chest.
(2) A firearm entrance wound 1.5 cm x l cm x deep going (DNP) on the outer side of left upper abdomen with an exit wound of 2.5 cm x 1.5 cm x DNP on the upper part of abdomen 3 cm towards the left midline.
(3) A firearm entrance wound 1.5 cm x cm x deep going (DNP) on the upper part of left buttock near the midline with an exit wound 3 cm x 2 cm on the upper and outer part of the left buttock.
(4) A firearm entrance wound 1 cm x 1 cm on the left lumber area 4 cm towards left of midline with an exit wound of 2 cm x 1 cm x DNS on the hypogastric region just below the umbilicus.
(5) A firearm entrance wound 1 cm x 1 cm x deep going (DNP) on the front of abdomen 2 cm above the umbilicus with an exit Wound of 2.4 cm x 1.4 cm x DNP on the left outer and upper chest.
(6) A firearm entrance wound 1.5 cm x 1 cm x deep going (DNP) on the right side of abdomen just right to the umblicus and bullet was recovered from the back of middle of upper chest.
(7) A grazing wound 3 cm x 2 cm on the left distal ring finger and bone was fractured.
(8) A firearm entrance wound 1.5 cm x 1.5 cm, on the back of right knee with an exit wound 3 cm x 2 cm on the outer side of right upper leg and on dissection it was found muscle deep.
(9) An entrance wound 1 cm x 1 cm on the outer and middle of left thigh with an exit wound 2 cm x 1.5 cm on the back of left thigh. And on dissection it was found muscle deep.
(10) An entrance wound 1.5 cm x 1.5 cm on the middle of back of left forearm with exit wound 3 cm x 1.5 cm on the middle of front of left forearm.
( 11 ) An entrance wound 1 cm x 1 cm on the back of left wrist with an exit wound 1.5 cm x 1.3 cm on the front of left wrist joint and on dissection injuries Nos.10 and 11 were found muscle deep.
(12) An entrance wound 1.5 cm x 1 cm on the back of right lower arm and the bullet was recovered near bone.
' Nature and size of injuries transpires that the same are caused by one fire arm and rules out use of any second weapon. It is also pertinent to mention that the Investigating Officer secured 6 crime empties of ,9 MM (P.7/1-6) from the place of murder of Raheel Arif (deceased). No crime empty of gun .12-bore was recovered from the place of murder of Raheel Arif.
15. The I.O. However collected two crime empties of .12 bore from the place of murder of Mst. Rabia Khalil i.e, bed-room inside the house. Locale, nature and size of the injuries on the body of Rabia Khalil observed by Lady Doctor Subha Seeniin (P.W.10) in her postmortem report (Exh.PN) transpires that the same were caused with fire-shots of .12 bore.
16. Prosecution evidence did not elicit any favour to the defence version. Appellant has also failed to produce any ocular evidence to discharge the shifted burden of proof on the defence plea of grave and sudden provocation.
17. Careful appraisal and comparative analysis of ocular and documentary evidence available on the record therefore makes it crystal clear that the defence plea of grave and sudden provocation is not established rather it is a case of wilful double murder on the pretext of honour which does not fall within the ambit of section 302(c), P.P.C. Reliance be made upon (i) Feroze v. The State (2008 SCM R 696 Supreme Court of Pakistan) and (ii) Muhammad Ameer v. The State (PLD 2006 SC 283).
Therefore judgment passed by the learned trial Court convicting the appellant Ali Ahmad under section 302(c), P.P.C. Is exceptionable.
18. For the above reason, Criminal Appeal No,1053 of 2007 lodged by Imtiaz Ahmad complainant is allowed and judgment dated 15-5-2007 passed by the learned trial Court is set aside and Ali Ahmad respondent in this appeal is convicted under section 302(b), P.P.C. For committing wilful murder of Raheel Arif and Rabia Khalil.
19. Criminal Appeal No,836 of 2007 lodged by Ali Ahmad appellant is dismissed.
20. As far as quantum of sentence in this case is concerned, we seek guidance from the dictum laid down by the Hon'ble Supreme Court in the case of Sabir Ali v. The State (2011 SCM R 629).
Relevant extract (para No,13) from the said case is reproduced, which reads as under:-- "13. At this juncture, reference to the case Abdul Haque 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 as 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 factum of sentence. It was held in "Ajun Shah v. The State"
PLD 1967 SC 185: "That a man is after all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. 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. 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 Ch. 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 vs. 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."
21. In the light of above referred dictum of the Hon'ble apex Court and keeping in view the facts and circumstances of this case we are of the considered view that this is not a case of capital punishment. Ali Ahmad respondent therefore is sentenced to imprisonment for life on two counts to run concurrently. He shall also be entitled to the benefit under section 382-B, Cr.P.C. In the backdrop of our above observations, we are not inclined to pass an order under section 544-A, Cr.P.C. In this case.
22. For the above reasons Criminal Revision No,737 of 2007 lodged by the State having lost relevance is also dismissed.