QAZI MUHAMMAD AMIN AHMED, J.---Liaqat Ali Khan, 31/32, henceforth referred to as the deceased, was gunned down at 2:30 a.m. on 25.11-2011 within the area of Kamryal, situating at a distance of 35 Kilometers from Police Station Pindi Gheb, Attack; the incident was reported by his father Misri Khan (PW-7) through statement (Ex,PA) recorded by Pala Ahmed, SI (PW-10) 5:15 p.m. at the spot; his narrative for the convenience of reference is reproduced in extenso:- "Liaqat Ali Khan deceased of this case was my only son, The accused Nazir Iqbal is the Ham Zug of my deceased son. On 25.11-2011 at about 2:30 P.M, 1 along with Liaqat Ali Khan, my daughter Gul Nat and my son in law Muhammad Akram PWs were going towards adda of the village from our house, when we reached near the house of one Tauseef, our co-villager, the deceased was a bit ahead of us. At that time the accused intercepted the deceased, raised the lalkara that he will teach him a lesson for marrying Mst. Kubra and with his 30-bore pistol fired at my son and the fires landed at the chest, head, belly and thighs of the deceased as a result of which he fell on the ground. 1, Muhammad Akram and Mst, Gul Nat Pws took shelter of a wall. Nair lqbal waiving his pistol in his hand ran away from the place of occurrence. The occurrence was witnessed by me M.
OW Nat and Muhammad Akram PWs. But for the reason of marrying Mst. Kubra, there was no other reason for the murder of my son."
Dr. Muhammad Alim (PW-4) conducted autopsy same day at 5:30 p.m. and noted five firearm entry wounds of different dimensions on the back of right side of skull, lett lateral as well as anterior aspect of right lower chest, right side of abdomen, upper thigh accompanied by a grazing wound on left side of abdomen with four exits; massive violence damaged brain, heart, lungs, liver and kidneys and thereby generated hypovolemic shock with severe bleeding, leading to death within 30 minutes; interregnum between death and postmortem was estimated as 3-4 hours.
Faiz Ahmad, SI (PW-10) carried out initial investigation; during spot inspection, collected bloodstained earth, 5-casings of 30-caiber (P-6/1-5). Appellant arrested on 27-11-2011; pursuant to a disclosure, led to the recovery of pistol (P-4). Indicted before a learned Addl. Sessions Judge at Rawalpindi, the appellant claimed trial on 14.1.2012, pursuant whereto, prosecution, besides relying upon forensic reports, produced as many as twelve witnesses; of them, Misri Khan (PW-8) and Gul Naz (PW-9) furnished ocular account; it constitutes the mainstay of the prosecution case. On forensic side, blood secured from the spot was found that of human origin and casings tallied with the weapon albeit dispatched subsequent to appellant's arrest. The appellant confronted the prosecution evidence with a denial, however, repeatedly attributed the deceased indecent intervention into his matrimonial life. The learned trial Judge, however, proceeded to convict the appellant under section 302(b) of the Pakistan Penal Code 1860 and sentenced him to death with payment of compensation in the sum of Rs,500,000/- or six months' simple imprisonment in the event of default, vide impugned judgment dated 29-4-2014, vires whereof, are being impugned through Crl. Appeal No,30-J of 2014 clubbed with Murder Reference No,25 of 2014 seeking confirmation of death penalty; since a common thread binds the both, these are being decided through this single judgment.
2. Learned counsel for the appellant does not dispute vires of appellant's conviction, however, prays for alteration of death sentence into imprisonment for life on the ground that deceased himself was principally responsible for his death on account of his reckless pursuits; he has additionally referred dispatch of casings subsequent to appellant's arrest to argue that in view thereof, recovery attributed to the appellant loses consequence, a circumstance to be received as extenuating. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has prayed for confirmation of death penalty on the ground that the deceased was well within his right to divorce his first wife to re-marry his erstwhile sister-in-law. According to them, five fire shots left no space but to hand down penalty of death upon the appellant who had no right to take law into his own hands under any circumstance or eventuality whatsoever.
3. Heard. Record perused.
4. Counsel's limited plea for alteration of sentence not-with-standing, we have independently examined the entire record and found prosecution successful in driving home the charge against the appellant. Ocular account furnished by Misri Khan (PW-8) and Gul Naz (PW-9) regarding their presence at the crime scene as well as details of the occurrence is confidence inspiring; both of them are in a comfortable unison on all the salient features of the prosecution case as well as details A collateral therewith; they have seemingly no axe to grind against the appellant; their narratives are duly corroborated by medical evidence, further supported by recovery and a feud raging between the deceased and the appellant. The learned trial Judge has rightly convicted the appellant. Consequently, Crl. Appeal No,30-J of 2014 fails. Insofar as the question of sentence to be exacted from the appellant is concerned, it warrants serious consideration in the light of law declared in the case of Ghulam Mohy-ud-Din alias Hall Babu v. The State (2014 SCM R 1034), relevant portion whereof, is advantageously reproduced below:- "Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded. If the intent of the legislature was to take away the discretion of the court, then it would have omitted from section 302(b), P.P.C. the alternative sentence of life imprisonment. 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."
While the deceased's choice to divorce his first wife to marry his erstwhile sister-in-law cannot be questioned being a past and closed transaction, protected by law both Municipal as well as Divine; his subsequent conduct, nonetheless, certainly can be taken into account notwithstanding magnitude of violence inflicted upon the deceased. Fayyaz Ahmad, SI (PW-10) investigated the case, made following admission during his cross-examination:- "It is correct that during investigation it transpired through the statement of the accused before me that the deceased had gone to the house of the accused and abused his wife. It is correct that during investigation, Mulazim Hussain son of Muhammad Anwar and Tosif appeared before me and deposed that the deceased quarreled with the wife of accused and Nazir Iqbal had a grudge against the deceased."
In appellant's examination under section 342 of the Code of Criminal Procedure, 1898, prosecution itself opted to solicit his response In the following terms:- "it is in evidence that prior to the occurrence the deceased had abused your wife and had quarreled with her and you also nourished a grudge against the deceased,"
No doubt, statement of an accused to a police officer while being in custody cannot be read in evidence save as provided under Article 40 of the Qanun-e-Shahadat Order, 1984 nor his plea before the Investigating Officer can be considered to his detriment, nonetheless, the accused is certainly at liberty to waive statutory immunity to derive any available benefit and the Court can also receive such information, otherwise inadmissible to extend possible benefit to a convict more so when the same is found being withheld by the prosecution. The Court itself can lift the cloak of immunity, in aid of inquiry or trial, though not as piece of evidence as contemplated under section 172(2) of the Code of Criminal Procedure, 1898. Expression 'to aid it in such inquiry or trial' occurring in the section ibid to be assigned an extended meaning with beneficial construction to find out a possible benefit, extendible to the accused. 'Giving devil his due is Justice'. Similarly, notwithstanding the respective positions, circumstances spelt out independently can be gone into unreservedly. On an overall analysis of prosecution case, motive alleged in the crime report as a rancor on account of deceased's second marriage appears to be far from being factual and his encounters with his previous wife seemingly cost him his life; magnitude of violence is commensurate with intensity of grievance and frustration, a circumstance additionally supporting the above hypothesis. Thus, penalty of death is altered into imprisonment for life with benefit of section 382-B of the Code of Criminal Procedure, 1898; amount of compensation and consequence in the event of default are kept intact. MURDER REFERENCE No,28 of 2014 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.