1. Ch. Abdul Aziz, J. This single judgment shall dispose of Criminal Appeal No. 484 of 2012 filed by Shaukat Ali son of Bilal Baig (against his conviction) and Murder Reference No. 126 of 2012 sent by the learned Sessions Judge, Kasur, for confirmation or otherwise of death sentence awarded to the appellant. Vide judgment dated 09.02.2012, the learned trial Court convicted and sentenced the appellant as under: "Convicted under Section 302(b), PPC and sentenced to death on two counts. He was also ordered to pay an amount of Rs. 1,00,000/- on two counts as compensation under Section 544-A of Cr.P.C, in default whereof he was ordered to undergo six months S.I. The compensation, if received was ordered to be paid to the legal heirs of the deceased Asif Javed and Surriya Bibi."
2. The instant Murder Reference and connected appeal are arising out of case FIR No. 31 dated 12.02.2011 registered under Sections 302, 34, PPC at Police Station Ganda Singhwala, District kasur.
2. The FIR was registered on the report of real mother Asif Javed (deceased) namely Mst. Naziran Bibi (PW.8) through written, application (Exh.PD). The facts as can be culled from the complaint (Exh.PD) and FIR (Exh.PD/1) are as under: "I am resident of Mauza Sheikhpura Kohna. My husband Mirza Muhammad Sadiq son of Roshan often remains sick. We are earning our livelihood through labour. Few months ago, my son Asif Javed contracted love marriage with Mst. Surriya Bibi daughter of Bilal. Her brother Shaukat son of Bilal (appellant) was not happy over the marriage of Surriya Bibi and used to give threats of killing her because of which there were strained relations between Asif Javed and Shaukat Ali. Few days prior to the occurrence, Shaukat Ali came to my house and requested to patch up the matter between him and his sister Surriya Bibi and Asif but I did not agree. On 11.02.2011 at about 9:00 p.m.
3. Shaukat Ali came to my house and during conversation requested to his elder sister Safia Bibi, who was wife of my elder son Niamat, Ali, that Surriya Bibi and Asif be sent with him, he would take them to his mother for resolving the dispute, Asif would be pardoned from his mother and in this way compromise will be affected. Surriya Bibi and Asif along with Shaukat Ali accused proceeded to the house of mother of Suriya Bibi in order to beg pardon. In the way near the house of Mian Lal in the Pacca Streat suddenly Shaukat pointed pistol towards them (Asif and Surriya Bibi). Meanwhile, towards left side in the vacant plot, Sadiq and Muhammad Boota accused were already standing, captured Surriya Bibi and Asif Javed Shaukat Ali started firing with his pistol which hit on different parts of bodies of my son and daughter in law who fell on the ground being seriously injured. On hearing voice of the fire shots Muhammad Ramzan son of Allah Ditta and Nazir Ahmad son of Muhammad Anwar attracted to the spot. The occurrence was witnessed by me, Muhammad Ramzan and Nazir Ahmad. Asif and Surriya Bibi succumbed, to the injuries at the spot. The motive behind the occurrence was that accused Shaukat Ali etc. had committed the murder of Asif Javed and Surriya Bibi because they had contracted love marriage".
4. 3.In pursuance of information furnished by the complainant Mst. Naziran Bibi (PW.8), Mansab Ali SI (PW-10) drafted formal FIR (Exh.PD/1). Subsequent, thereto, Mansab All SI proceeded to the crime scene for the purposes of investigation and conducted the spot inspection and from there he secured six empties of .30 bore pistol vide recovery memo. (Exh.PF). He also secured blood-stained earth from two places vide recovery memos. Exh.PE and Exh.PH) respectively. Similarly, after having done other formalities, the dead bodies of the deceased namely Asif Javed and Surriya Bibi were forwarded to hospital for the purposes of post-mortem examiination. During the course of investigation, appellant Shaukat Ali Was arrested on 07.03.2011, whereafter, in police custody he made a disclosure and led to the recovery of pistol, which was taken into possession by Investigating Officer vide recovery memo. Exh.PI. For the purposes of getting the expert opinion, the crime empties and the pistol were forwarded to Forensic Science Laboratory on 28.02.2011 and 12.03.2011, respectively. These tasks were assigned to Muhammad Aslam 708-C (PW-4).
5. After the conclusion of investigation, the report under Section 173, Cr.P.C. was submitted in the trial Court, where on 21.04.2011, the appellant along with his co-accused Muhammad Sadiq son of Bilal _and Muhammad Boota son of Abdul Aziz (since acquitted) were charged under Section 302, 34, PPC to which they pleaded not guilty and claimed trial.
6. 4.In order to bring home the guilt of the appellant and his two co-accused (since acquitted), the prosecution mainly relied upon ocular account, medical evidence, motive and the recovery of .30 bore pistol. In addition, the reports of Chemical Examiner (Exh.PM and Exh.PN), report of Serologist (Exh.PO) and the report of FSL (Exh.PQ) were also tendered in evidence under Section 510, Cr.P.C.
7. 5.The evidence of ocular account was furnished by complainant Naziran Bibi (PW.8) and Nazir Ahmed (PW.9). Naziran Bibi (PW.8) when appeared before the trial Court, she dep osed as under (reproduced in verbatim): "My son Asif. Javed contracted love marriage with Mst. Suriya Bibi sister of accused Shaukat.
8. Shaukat accused used to extend threats to my son. 5/7 days before the murder, accused Shaukat came to me in my house and requested me to patch up the matter with his sister and her husband. I did not agree to the request. On the day of murder accused Shaukat again tame wife of my elder son namely Niamat and requested them to send both Suriya and Asif to her mother for resolving th e matter. Then he took his sister and Asif along with and when they reached near the house of Mian Lal, where Boota and Sadiq accused emerged. Both Sadiq and Boota caught hold of both the persons whereas Shaukat accused fired on both of them. I, Nazir and Ramzan witnessed the occurrence.. Thereafter accused persons made good their escape and we reached on the dead body and raised the alarm. Where we went to police station and gave an application Ex.P-D. I thumb marked the application. On that application police lodged a formal FIR."
9. Nazir Ahmed, while appearing as PW-9 supported the version of the complainant (PW-8).
6. The medical evidence was furnished by Dr. Hafeezullah Mamon (PW-5) and Dr. Muneeza Taseer (PW-6).
10. Dr. Hafeezullah Mamon (PW.5) on 12.02.2011 at 4:00 p.m., conducted the post-mortem examination on the dead body of Asif (deceased) and observed following injuries:-- 1.AEntry wound, a lacerated wound 1 x 1 cm at left side of back of his skull, 11 cm from left ear tragus. Blackening was present, margins were inverted.
11. 1.BExit wound, a lacerated wound 11/2 x 1 cm at the outer side of right eyebrow, margins were everted.
12. 2.AEntry wound, a lacerated wound 1 x 1 cm at left side of chest middle part, 7 cm from left nipple, 12 cm left axilla, blackening was present, margins were inverted.
13. 2.BExit wound, a lacerated wound 11/2 cm x 11/2 cm at right side of chest, 10 cm from right nipple, 12 cm from right axilla, margins were everted.
14. 3.AEntry wound a lacerated wound 1 x 1 cm at left side of abdomen, 2 cm from left anterior superior iliac spine, 12 cm from umbilicus, blackening was present, margins were inverted.
15. 3.BExit wound, a lacerated wound 11/2 cm x 1 at right lumber region 7 cm from midline back side, exist wound.
16. According to the opinion of the doctor, the deceased died due to excessive haemorrhage and shock caused by injuries to both lungs, liver, intestine which was sufficient to cause death in ordinary course of nature and that all the injuries were ante-mortem in, nature and caused by fire- arm. The probable time, between injury and death was immediate and between death and post- mortem was within 12-24 hours approximately.
17. Dr. Muneeza Taseer (PW-6) on 12.02.2011 at 1:30 p.m., conducted the p-ost-mortem examination on the dead body of Surriya Bibi (deceased) and noted the following injuries:-- 1.AEntry wound 0.5 x 0.5 cm on the right side of neck, blackening around the wound margins present.
18. 1.BAn exit wound 1 x 1 cm on the back left side, 8 cm from the top of shoulder.
19. 2.AAn entry wound 0.5 x 0.5 cm on the left breast, 14 cm below left clavicle, blackening around the wound margins present.
20. 2.BAn exit wound 1 x 1 cm on the right side of back, 6 cm from midline.
21. 3-AAn entry wound, 0.5 x 0.5 cm on the left, arm near elbow joint blackening around the margins present.
22. 3-BAn exit wound 1 x 1 cm on the left arm near elbow joint, 3-A and 3-B are 4 cm apart.
23. 4-AAn entry wound, 0.5 x 0.5 cm on the outer part of left leg, 8 cm from knee. Blackening present.
24. 4-BAn exit wound 1 x 1 cm above knee on the anterior of left leg.
25. 5-AAn entry wound 0.5 x 0.5 cm on the outer part of left leg, blackening around wound margins present.
26. 5-BAn exit wound 1 x 1 cm on the inner part of lower leg below knee joint.
27. 6.An incised wound 4 x 1 cm on the forehead and frontal part of skull right side, bone exposed.- According to the doctor, the cause of death in this case was due to excessive haemorrhage and shock due to injuries to vital organs, heart, right lung which is sufficient to cause death in ordinary course of nature; all injuries were ante-mortem and were caused by fire-arm exdept Injury No. 6 which is caused by sharp edged weapon and that the probable time between injury and death was within few minutes and between death and post-mortem was about 12-24 hours.
28. 7.The recovery of the pistol .30 bore was witnessed by Nazir Ahmed (PW-9), who deposed precisely that after 24/25 days of the occurrence, Shaukat Ali (appellant) while on physical remand, made a disclosure and led to the recovery of pistol .30 bore (Exh.P1), which was taken into possession vide recovery memo. Exh.PI.
8. Learned trial Court examined appellant, Shaukat Ali under Section 342, Cr.P.C. In response to Question No. 2, the appellant replied as under (reproduced in verbatim): "It is incorrect. No love marriage was contracted between Asif and Surriya Bibi deceased, in fact, Mst. Naziran Bibi demanded the hands of Mst. Surriya Bibi for marriage with her son namely Asif from me as Mst. Naziran Bibi complainant was my relative. Therefore, I promised to ponder over the proposal and to consult the same with my elders but meanwhile, without waiting our answer Asif deceased with the connivance with the Mst. Naziran Bibi abducted my sister Mst. Surriya Bibi. Both Asif and Surriya ran away from the village and their whereabouts were not traceable. Before few days of the present incident, the family members of Mst. Naziran Bibi and our elder joined their head together and on the request of the parents of Asif deceased a compromise was affected to the effect that Mst. Surriya Bibi was to be returned to her parents and after a few days, the parents of Surriya Bibi after making arrangement for dowry articles, on receiving the Baarat make Rukhsati of Surriya Bibi with Asif deceased and on this compromise Asif deceased brought Surriya Bibi in the village. The story of threats is totally baseless so far as the remaining part of question regarding my arrival in the house of Mst. Naziran Bibi and making contact with my elder sister namely Saffiya Bibi is concerned. The story is totally false and concocted. I never went to the house of Mst. Naziran Bibi and met with my elder sister namely Saffiya. Bibi on the alleged day of occurrence. It is also incorrect that I took Asif and Surriya from the house of Mst. Naziran Bibi for bringing them to my mother for resolving the matter. Rather it is unnatural. No real relation of Asif in the stated circumstances would allow Asif and Mst. Surriya Bibi to alone accompany me for resolving the matter in their house. The remaining story is all false and concocted one neither Mst. Naziran Bibi nor the witnesses produced by the prosecution were present at the spot. So far as, the story of catching hold of btith the, deceased is concerned, it is all false. According; to the post-mortem of both the deceased both the deceased persons were having multiple entry and exit wound on their person. Had they been caught by any other person as stated by the PWs, they would have sustained bullet injuries themselves. None of the alleged PWs are resident of the street where the alleged occurrence have been stated to have occurred. The natural witnesses have been shut by the prosecution. What to speak of producing the real witnesses, none of them were joined in the investigation in order to bring out the real facts".
29. Similarly in response to question "why this case against you and why PWs deposed against you", the appellant replied as under: "Ramzan PW is married with Mst. Aasia Bibi daughter of Mst. Naziran Bibi complainant. Whereas Nazir PW is real son of the Dever of Mst. Naziran- Bibi namely Muhammad Anwar. Thus all the three alleged PWs are not only related inter se but they are also inimical towards me. The I.0 while conniving with the complainant party conducted preliminary investigation at the spot and while suppressing the real facts fabricated a false story. None of the alleged PWs resides near the alleged place of occurrence. They were also not present at the time of actual happening. Both Asif and Surriya Bibi came in the village in consequences of the result of compromise and according to the compromise, Mst. Surriya Bibi was to be restored to her parents and after making arrangement for dowry articles after some time with the mutual consent of the parties Rukhsati was to be effected. But as both the deceased were having contacts on mobile phones to contact each other on the night of 11.2.2011, Asif deceased late night came in my house and I saw both Asif and Surriya in compromising position when Asif was having no shirt or Buniyan on his person. On seeing them, I rebuked them at this Asif pulled out his pistol P-7 and tried to make fire on me. A scuffle started between me and Asif and we mine in the street at some distance. I was apprehending danger to my live even at that time and in the scuffle, I became successful in getting the hold on the pistol P-
7. Mst. Surriya Bibi deceased my sister also tried to help Asif deceased in the process and I while due to Ghariat grave and sudden provocation and in order to save my life, I made direct firing on Asif and Surriya Bibi. Had I not acted so by over powering me deceased Asif would have murdered me. Muhammad Saleem Baig our neighbourer was the first person who came there and in his presence, I while saying that I am going to the Police Station went straight to the P.S where the I.0 Mansab Ali was present. I apprised him regarding the real facts and also produced pistol P-7 which I snatched from Asif deceased. None of the eye-witnesses were present and my co-accused Sadiq and Boota also were ignorant regarding the happening on the night of 11.2.2011. They have been involved in this false case due to relation with me. I am innocent and I am bearing the agony of this protracted trial since 11.2.2011".
9. The appellant also opted to appear as a witness in his own defence and while appearing as DW- 1 deposed as under: "My father died 10/12 years before whereas my mother is alive. We are three brothers and five sisters. Saffiya Bibi my sister is married with Niamat son of Mirza Sadiq Baig and Naziran Bibi complainant three years ago. Surriya Bibi deceased was younger than Mst. Saffiya Bibi my sister.
30. Naziran Bibi complainant demanded the hands of Mst. Surriya Bibi in marriage with Asif deceased from me. I replied that after consultation with the other relative, I shall reply the said proposal. After a few days, Mst. Naziran Bibi got my sister Surriya Bibi (deceased) abducted through Asif deceased for six months we were not knowing their whereabouts. Due to the relationship and family owner none of us got registered case of abduction against Asif deceased. Thereafter Mst. Naziran Bibi floated proposal for compromise and a Punchayet was convened and it was decided that the couple should return to the village and on their return Mst. Surriya Bibi will be handed over to us and after making preparation for her dowry articles her Rukhsati would be done by us and on the return of the couple Mst. Surriya Bibi was returned to us few days before the occurrence. On 11.2.2011, at about 9:00/10:00 p.m. when I woke up to make urine, I heard some noise from the adjoining room and I went to that room and saw Mst. Surriya Bibi and Asif in objectionable condition. After seeing them, in objectionable condition I flared up and started abusing them. He brought out a pistol and pointed it towards me. On gathering courage, I started grappling with him and during the scuffle, we came in the street. Meanwhile, Mst. Surriya Bibi also chased us in order to help Asif deceased. I succeeded in snatching the pistol from Asif deceased and fired on both Asif and Surriya Bibi. Had I not done so, Asif would have killed me. I fired on Surriya Bibi and Asif in order to save myself and due to "Ghairat". At that time Sadiq and Boota co-accused were not present. Naziran Bibi, Ramzan and Nazir were not present. Mirza Saleem Baig was the first person, who was neighbourer and who came there. I apprised him regarding the occurrence and thereafter, I went to P.S. Ganda Singh Wala and appeared before Mansab SI. I apprised him regarding the true facts and also produced the santched pistol from Asif deceased. Mansab SI was connived with the complainant party and he instead of recording my statement called Mst. Naziran Bibi fabricated false story and got me challaned in this false case. I am innocent".
31. Mirza Saleem Baig (DW-2), who is stated to be a resident of the same street, where this unfortunate occurrence took place, corroborated the defence version of the appellant.
10. After the conclusion of trial, the learned trial Court convicted and sentenced the appellant Shaukat Ali, as afore-stated and proceeded to acquit Muhammad Sadiq and Muhammad Boota, hence the instant appeal and Murder Reference.
11. The learned counsel for the appellant contended that:-- (i).the occurrence took place at 09:00 p.m., whereas the matter was reported to police at 02:15 a.m. and this delay in lodging the FIR remained unexplained; (ii)the ocular account was furnished by PW-8 and PW-9, who are chance witnesses.
32. (iii)the motive remained unproved, which itself is a mitigating circumstance; (iv)the prosecution has not come forward with the true facts and the FIR was got registered while concealing the real circumstances; (v)the prosecution opted not to challenge the acquittal of Muhammad Sadiq and Muhammad Boota, hence, the evidence, which is disbelieved to their extent can be of no help to maintain the conviction of the appellant.
12. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and submitted that:-- (i)the instant case is of a promptly lodged FIR, wherein the specific role is assigned to the appellant; (ii)though three persons were nominated in FIR, but the appellant was the only person, who was attributed the role of causing injuries on the bodies of the two deceased;
(iii) the case of the prosecution is supported and corroborated by the medical evidence as well as from the recovery of .30-bore pistol, coupled with the positive report of FSL.
33. 13.Arguments heard and record perused with the able assistance of the learned counsels for the parties.
34. 14.The case of the prosecution, so to speak primarily, hinges upon the ocular acqount furnished by Naziran Bibi (PW.8) and Nazir Ahmed (PW.9) and the medical evidence furnished by Dr.Hafeezullah Maman (PW-5), lady Dr. Muneeza Taseer (PW-6) and the recovery of pistol witnessed by Shaukat Ali (PW-7). The prosecution sought corroboration from the motive and the report of Forensic Science Laboratory (Exh.PQ).
35. 15.The motive as set up by the prosecution was stated to be the love marriage of Mst. Surriya Bibi deceased (sister of the appellant) with Asif Javed deceased, which was contracted contrary to the wishes of the appellant. During the course of trial, the prosecution brought no evidence on record to prove the marriage of Surriya Bibi and Asif Javaid. Though the prosecution produced evidence at liberty but surprisingly neither the Nikahnama of the unfortunate couple was ever brought on record nor any witness of the Nikah was produced. Similarly, the date and place of Nikah or the name of the Nikahkhawan was also not brought on record. If at all the motive as set up by the prosecution was having some shred of truth, it could very easily be proved on the basis of above mentioned evidence. Saffiya Bibi, real sister of deceased Surriya Bibi and the appellant was married with the elder brother of deceased Asif Javed namely Niamat. There is an admission on the part of PW-8 that Saffiya Bibi is still alive and also living with her (complainant) but she was not produced as a witness in order to prove the motive. The importance of Saffia Bibi can well be gauged from the fact that even according to the statement of Naziran Bibi (PW-8) on the eventful night, the ill-fated couple left the house in the company of the appellant with her blessing. The husband of the complainant namely Muhammad Sadiq and her son Niamat (husband of Saffia Bibi), who were also residing in the same house, were also not produced either during the course of investigation or at trial stage. Admittedly these witnesses were having cordial relations with the complainant and were residing in the same house and in this context their presence could easily be secured by the complainant. More so, the marriage of the deceased-couple could also easily be proved through Nikah Nama and Nikahkhawan but no such effort was made by the prosecution neither at the stage of investigation nor during the trial, from this failure the only inference which can be drawn by this Court is in consonance with Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984, which reads as under:
129. Court may presume existence of certain facts.--The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
36. Illustrations The Court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable, to the person who withholds it.
37. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under: "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution."
16. The failure to establish motive as set out in FIR is a factor, which goes against the prosecution.
38. The prosecution, though is not obliged to prove the motive in each and every case, however once the motive is setup then it must be established. T he guidance in this respect can be sought from the judgment of the Hon'ble Supreme Court of Pakistan reported as Noor Muhammad v. The State and another (2010 SCM R 97): "Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence".
39. In the base of Muhammad Bux v. Abdul Aziz & others (PLJ 2010 SC 949), the Hon'ble Supreme,Court of Pakistan observed as under: "In this case, motive is an important fact, which has not only been alleged in the FIR but the evidence has been led. The said motive has not been relied upon by the trial Court and the High Court as the prosecution failed to prove the same. In such a situation, the Court should be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident should be accepted with great caution."
17. A wade through the testimony of Naziran Bibi reflects; that she being the resident of vicinity and in normal circumstances can be termed as natural witnesses. Apparently, her statement is coherent with the medical evidence and also in line with the prosecution case as set up in FIR (Exh.PD) so far as it relates to the causing of injuries to the deceased. However, there are certain factors appearing in her testimony, which put this Court at guard and resultantly instead of accepting her testimony in totality, approach of sifting the grain from the chaff is opted to be adopted. These factors are summarized below: (i)her testimony was disbelieved to the extent of two co accused namely Muhammad Sadiq and Muhammad Boota, who were acquitted by the trial Court.
40. (ii)the occurrence took place at 09:00 p.m. and the matter was reported to Police at about 2.15 a.m., whereas the Police Station was situated at a distance of 13-I kilometers only.
41. (iii)Despite the availability of the male members of the family i.e. Niamat Ali (son) Muhammad Sadiq (husband), none of them proceeded to the Police Station for the registration of FIR and that too at the odd hours of the night. Such an aspect being in sharp contrast with our social and cultural values leaves a big question mark about the situation.
42. (iv)According to her, the motive behind the commission of , offence was marriage of Asif and Surriya Bibi deceased/ but no proof of marriage, documentary or oral, was brought on record.
18. In reference to the acquittal of two co-accused, suffice it to say that an independent corroboration is required to accept the theory of the prosecution case. In this respect guidance can be sought from the case of Akhtar Ali and others v. The State (2008 SCM R 6) wherein the Hon'ble Supreme Court of Pakistan has observed as under: "It is settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be ---relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCM R 697 and Ata Muhammad's case 1995 SCM R 599."
19. As regards the statement of Nazeer Ahmed (PW-9), it evinces from record that his statement under Section 161, Cr.P.C. was recorded after 2/3 days of occurrence. This delay of 2/3 days gains importance, when seen in the context of the claim of PW-9, according to which he is resident of the same locality and even subsequent to the occurrence, he remained present in the vicinity. The prosecution failed to offer any plausible explanation for this delay in recording of his statement.
43. Even otherwise, the testimony of PW-9 is found to be contrary to the case of the prosecution as well as to the statement of PW-8. He deposed in the Court that Naziran Bibi was coming with him after closing the shop of Ramzan alias Jana (given up PW). The relevant extract of his statement is reproduced as under.
44. "In fact, I, Ramzan and Naziran Bibi were together and were coming after closing the shop of Ramzan alias Jana. I and Mst. Naziran Bibi usually sit at the shop of Ramzan."
45. Evidently, portion of the deposition of PW-9 reproduced supra, brings his testimony in conflict with the statement of PW-8, who stated that the two deceased and the appellant left the house in her company and such variance, in law, can be construed as Contradiction. "Contradiction" means negation of versions, of the prosecution case. The delay in recording the statement of PW-9 and the contradiction, it, hails with PW-8 renders it absolutely unworthy of credence and reliance. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Khan v. Maula Baksh and another (1998 SCM R 570) has held as under: "It is a settled law that credibility of witness is looked with serious suspicions if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation."
46. Similarly, in another case reported as Rahat Ali v. The State reported as (2010 SCM R 584) the Hon'ble Supreme Court of Pakistan observed as under: "delay in recording the statement of witness without furnishing any plausible explanation, is also fatal to prosecution case and the statement of such witness is not to be relied upon"
47. 20.From above discussion, we are of the view that PW-9 was not present at crime scene and was subsequently introduced to provide strength to the prosecution case, probably when the real brother and father of the deceased refused to support the twisted story mentioned in FIR.
48. 21.The appellant, during the course of trial, developed his defence that he committed the murder on being provoked due to `Ghairat' arising out of the act of two deceased persons, when he saw them in a compromising position and pleaded it as a mitigating circumstance.
49. 22.The expression "provocation" has not been defined anywhere in the Pakistan Penal Code. It is a settled proposition that if an expression is not defined in any law, then recourse has to be made to its dictionary meaning. Such an approach is in accordance with the principles of interpretation, laid down by the Hon'ble Supreme Court of Pakistan. In this respect guidance can be sought from the judgment reported as Chairman Pakistan Railway Government of Pakistan v. Shah Jehan Shah (PLD 2016 Supreme Court 534) wherein the Hon'ble Apex Court held as under: "when a word has not been defined in the statute, its ordinary dictionary meaning was to be looked at."
50. While following the rule of interpretation laid down by the Honorable Supreme Court of Pakistan in the above case, the dictionary meaning of "provocation" is looked into by this Court. In Black Law Dictionary, Sixth Edition, word "provocation" is defined as under: "The act of inciting another to do a particular deed. That which arouses, moves, calls forth, causes, or occasions. Such conduct or actions on the part of one person towards another as tehds to arouse rage, resentment, or fury in the latter against the former, and thereby cause him to do some illegal act against or in relation to the person offering the provocation."
51. Provocation in reference to killing of a person is further defined in the same dictionary as under: "Provocation which will reduce killing to manslaughter must be of such character as will, in mind of average reasonable man, stir resentment likely to cause violence, obscure the reason; and lead to action from passion rather than judgment. There must be a state of passion without time to cool placing defendant beyond control of his reason. Provocation carries with it the idea of some physical aggression or some assault which suddenly arouses heat and passion in the person assaulted".
52. 23.The plea of provocation came up for consideration before the Hon'ble Supreme Court of Pakistan and was expounded in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) as under: "Provocation in law consists mainly of three elements--the act of provocation, the loss of self- control, both actual and reasonable and the retaliation proportionate to the provocation.Their relationship to each other, particularly in point of time, whether there was time for passion to cool--is of first importance"
53. 24.In the above backdrop, following principles can be generalized in order to examine the plea of human killing on account of provocation:-- (i)An act of one person towards another; (ii)Such act may ignite rage, resentment or fury in the mind of another; (iii)In order to reduce the charge of murder to manslaughter, the act must be such, which may in the ordinary course of nature stir resentment in the mind of the others, fbrcing him to resort to violence; (iv)The person resorting to violence must not have a cool down period; (v)The retaliation should be in proportionate provocation.
54. In the case in hand, the appellant has taken a specific plea that on the fateful night, while he was sleeping in his home, the noise in an adjoining room interrupted his sleep and on his visit to said room, he found both the deceased in objectionable condition, out of sheer rage, he started abusing them; that Asif deceased pulled out his pistol and pointed at him, it followed a scuffle and finally the appellant snatched the pistol and killed both the deceased. He took the plea based on self- defence and provocation out of Ghairat'. Mirza Saleem Baig (DW-2), who is also resident of the same locality provided corroboration to his defence version. This defence of the appellant got some support from the statement of PW-9, who admitted that Asif was not wearing any shirt or Banyan. The defence of the appellant is further strengthen by the statement of lady doctor Muneeza Taseer (PW-06) who examined the dead body of Suriya Bibi deceased. She stated in unequivocal terms that Injury No. 6 on the body of the deceased was caused by a sharp edged weapon. The ocular account furnished in the instant case provides no explanation for such injury.
55. Apparently, the injury was caused during the scuffle, as narrated by the appellant.
56. 25.The above facts have forced this Court to examine the testimony of all the witnesses with great care and caution. Since the appellant has also admitted the killing of the two deceased, obviously in special circumstances, hence the deposition of PW-8 Naziran Bibi, relating to causing of injuries is admitted by this Court. We are of the view that she came to the place of occurrence after hearing the noise and witnessed the later part of the occurrence. Naziran Bibi has concealed the real facts and while consuming the time spent in reporting the matter to police she, in consultation with other PWs, gave a different colour to the occurrence. Probably due to this reason the best evidence of Niamat Ali (her son), Muhammad Sadiq (husband) and Safia Bibi (daughter-in-law), was withheld. The instant case, admittedly is based upon two versions, one given by the prosecution and other by the defence. This is the salutary principle of law that for just decision of such like cases both the versions are to be taken in juxtaposition and thereafter it is to be seen as to which version is more probable and nearer to the truth. In this respect reliance can be placed Upon the judgment of the Hon'ble Supreme Court in the case of Muhammad Younas v. The State (1992 SCM R 1592), wherein it was held as under: "it is by now well-established that in a situation like the one in hand, both the versions have to be kept in juxtaposition and the one favorable to the defense is to be preferred to, if it gets support from the admitted facts and circumstance of the case and appeals to common sense."
57. 26.The in-depth analysis of the prosecution evidence is that the instant case appears to be of human frailty where the appellant lost his self-control after seeing his sister in a compromising position with the deceased. The occurrence is apparently committed in the manner stated by the appellant and not as claimed by the prosecution. This is not logical that the appellant will take such an extreme step of taking the lives of both the deceased without there being some extraordinary circumstances in existence, especially when his other sister is also married with the real brother of deceased (Asif Javaid) because such a step, was likely to ruin her matrimonial life as well. Such a finding, gives rise to another question and that is the quantum of sentence which is to be awarded.
27. The Hon'ble Supreme Court of Pakistan in the case of Ali Muhammad (mentioned supra) after taking into consideration th plea of the accused that he killed the deceased after seeing him in compromising position with his wife, considered it as a mitigating circumstance and convicted him under Section 302(c), PPC for the period, he had already undergone in judicial custody.
58. 28.The Doctrine of Provocation also came up for hearing before the learned Division Bench of this Court in the case of Muhammad Nawaz v. The State (2005 P.Cr.L.J. 937) and the following / was observed: "No Court of law would encourage honor killings. But people do get provoked on such questions either suddenly or otherwise, when they remain under the obsession of Ghariat unleash their negative impulse at the first available opportunity. They need to be punished. But then we have own culture and background and customs. These influence him to develop the impulse for revenge and because of such a revenge when a killing takes place it based on human frailty rather than any wickedness. As human frailty over powers a person because of the society, surroundings, ear poisoning, provocation, incitements and scandal mongering. Such an act attracts the principles of diminishing liability/extenuation".
59. Similarly in another case titled as Asghar Ali v. The State (1998 P.Cr.L.J 1132), after taking into consideration the plea of "Ghairat" and "Self-defence", this Court proceeded to reduce the sentence of life imprisonment to a sentence for the period of ten years. The conclusion, which this Court can reasonably draw from the above discussion is that the two versions, one given by the prosecution and the other brought on record by the defence, when put together, the one brought on record by the defence appears to be more convincing, nearer to truth and appeals to common sense. The appellant though fired at the deceased with an intention to kill but apparently it arose from a situation created by the unfortunate deceased persons.. The occurrence is not found to be pre-mediated rather committed at the spur of the moment and that too on account of human frailty. Now, the question arises whether the appellant is to be convicted clause (b) or clause (c) of.Section 302, PPC. A person can be convicted under Section 302(c), PPC if the case is one of sudden fight taking place without any premeditation, in the heat of passion and if the offender has not taken undue advantage or acted in a cruel or unusual manner. However, if the offender commits an offence without premeditation but takes undue advantage or acts in a cruel or unusual manner then he is to be convic ted under Section 302(b), PPC. In support of this view, reference can be made to the case of Muhammad Asif v. Muhammad Akhtar (2016 SCM R 2035). In the instant case, this Court is of the view that though the deceased were not murdered in a pre- mediated manner but the appellant took undue advantage by repeating the fires on them, hence, his case does not fall within the provision of Section 302(c), PPC and instead is covered by the clause (b) of the same section. As a necessary corollary, the question arises that out of the two sentences provided in Section 302(b), PPC which one warrants infliction in the instant case. The legislature has provided two sentences under Section 302(b), PPC. For ready reference, it is necessary to reproduce clause (b) of Section 302, PPC, which is as under: "302. Punishment of qatl-i-amd.--Whoever 'commits qatl-iamd shall, subject to the provisions of this Chapter be: (a)..............................
60. (a)Punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304, PPC is not available; From the bare perusal of the foregoing provision, it is clear that a person found guilty under Section 302(b), PPC can either be punished with death or with imprisonment for life. It would be a misconception to say that the death is the normal penalty provided for the murder. The legislatures have not provided any guideline as to when a person is to be punished with death or in what circumstances he is to be sentenced to imprisonment for life under Section 302(b), PPC. Hence, it can safely be inferred that the quantium of sentence depends upon - the discretion of the Courts.
61. Needless to mention the discretion is to be exercised in accordance with the facts and circumstances of the case. The Hon'ble Supreme Court of Pakistan has diluted upon this question in the case of Ghulam Mohv-ud-Din alias Haji. Babu and others v. The State (2014 SCM R 1034), the Hon'ble Supreme Court of Pakistan held as under: "If the intent of legislature was to take away the discretion of the Court, then it would have omitted from S.302(b), P.P.C. the alternative sentence of life imprisonment."
62. In the same judgment, the Hon'ble Supreme Court further held that"Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case."
63. The Hon'ble Supreme Court of Pakistan has consistently held that the imprisonment for life is also a legal sentence in the case of Section 302(b), PPC. Reference, in this regard, can be placed to the cases of Muhammad Riaz and another v. The State and another (2007 SCM R 1413) and Muhammad Sharif v. The State (PLD 2009 Supreme Court 709).
30. The upshot of the above discussion is that while maintaining the conviction of Shaukat Ali, appellant-under Section 302(b), PPC, his death sentence on two counts is converted into that of imprisonment for life on both counts with, the benefit of Section 382B, Cr.P.C. However, the appellant shall pay the compensation on the same terms and conditions as fixed by the learned trial Court. Resultantly Criminal Appeal No. 484 of 2012 filed by appellant, Shaukat Ali is dismissed.
64. Murder Reference No. 126 of 2012 is answered in the NEGATIVE and Death Sentence awarded to appellant, Shaukat Ali is NOT CONFIRMED.