' MUHAMMAD AFZAL LONE, J.---Ansar Ahmad Khan Barki, the appellant was convicted by the Additional Sessions Judge, Lahore, vide his judgment dated 29-11-1986, under section 302, P.P.C. For committing the double murder of Wajid Ali Khan son of Hamid Ali Khan and Haroon Akhtar. He was sentenced to life imprisonment and a fine of Rs,20,000 on two counts, and in case of default in payment of fine, the convict has to undergo rigorous imprisonment for four years. He challenged his conviction and sentences through an appeal. On the other hand the State as well as Javed Akhtar complainant filed separate reivision petitions for alteration of the sentence of life imprisonment to death. The High Court dismissed the appeal of Ansar Ahmad Khan Barki, accepted the complainant's revision petition and enhanced the appellant's sentence of life imprisonment to death. Resultantly the revision petition filed by the State was rendered infructuous.
The High Court's judgment dated 10-7-1990 has been assailed by the convict through this appeal, in which during arguments only the quantum of sentence has been challenged.
2. The occurrence took place on 12-4-1985 at 9-30 p.m. In Zaman Park, Lahore, opposite to the residence of Brigadier Farooq Ahmad, where the marriage of his daughter was being solemnized with Asad Khan, whose mother is the sister of Hamid Ali Khan. Thus he is the cousin of Wajid Ali Khan deceased. The other victim of the occurrence i.e, Haroon Akhtar was the maternal uncle of Wajid Ali Khan and elder brother of Javed Akhtar Khan complainant. The other relationship between the parties is that a cousin of Hamid Ali Khan, namely, Mst. Bushra Khanam is the mother- in-law of Akhlaq Ahmad Khan, the brother of the appellant. Brig. Farooq Ahmad is the cousin of the appellant. The prosecution version and the manner in which the occurrence took place, as narrated in the impugned judgment, are as under:-- "Prosecution story as disclosed at the trial was that the appellant being issueless brought up his niece Mst. Asma, daughter of his real brother Akhlaq Ahmad Khan. Mst. Asma's hand was solicited for marriage with Wajid Ali Khan (deceased) but the proposal could not materialise. About three months before the occurrence she was married with Dr. Kazim son of Sheikh Umar of America who took her abroad. Mst. Asma's relations soon became strained with her husband and she returned to Pakistan in February, 1985, and started living with the appellant. The appellant thought (suspected) that she had deserted the house of her husband due to Wajid Ali Khan (deceased). He sent a message to Wajid Ali Khan 10/12 days before the occurrence not to attend Asad's marriage function, to be held on the fateful evening, at Zaman Park lest something unpleasant happens. But Wajid Ali Khan in disregard of appellant's message attended the function, hence this occurrence.
5. On the fateful evening, Javed Akhtar Khan complainant (P.W. 6), Haroon Akhtar (deceased), Wajid All Khan (deceased), Abid All Khan (P.W. 7) and Shah Qasim Khan (P.W. 11) joined Asad's marriage procession which started from Lahore Cantt. At 7-30 p. m. And reached Zaman Park at 8 p. m. The guests were stayed in the Park which was profusely illuminated with electric lights. The appellant participated from bride's side. Most of the guests left the place after taking the nupital dinner. At about 9-30 p.m., Wajid Ali Khan (deceased) was going from "Pindal" side towards the gate of the Park where Javed Akhtar Khan, Abid Ali Khan and Shah Qasim Khan P.Ws. Were waiting for their ladies, when Ansar Ahmad Khan (appellant) immediately came from outside the gate of the Park and opened pistol-fire at Wajid Ali Khan, who was hit in the face and left flank and fell down. Haroon Akhtar Khan (deceased) stepped forward to forbid him but he too was shot at by the appellant. As a result thereof, Haroon Akhtar received bullet injuries in his chest and left arm and fell down. Abid Ali Khan (P.W. 7) attempted to apprehend the appellant but had tumbled down being entangled with rope (of a tent). The witnesses, however, rushed the injured persons to Service Hospital in a car but they succumbed to the injuries."
3. It is not necessary to discuss the details of the prosecution evidence, as before us the conviction of appellant under section 302, P.P.C., has not been assailed and his learned counsel has confined the submissions to the quantum of sentence and argued that in the circumstances of the case the penalty of death should not have been inflicted on him. To elicit support for his contention he took us through the evidence on record. He also vainly endeavoured to canvass that the appellant is entitled to grant of amnesty granted under the President's Amnesty Order dated 7-12-1988. On the other hand the learned counsel representing the complainant side referred to the appellant's statement to urge that it demonstrated his and venom against the deceased and reflected his intention to kill them. He submitted that unless there are extenuating circumstances, the normal sentence to be passed in murder case is death. According to him there is no mitigating circumstance justifying the imposition of lesser of the two sentences. As regards the grant of benefit under the Amnesty Order, we may observe that the issue does not arise in this case.
4. The point requiring determination in this appeal is, as to whether the facts appearing on the record and the circumstances surrounding the appellant's guilt call for infliction of the extreme penalty of death on him and that which of the two Courts below in determining the quantum of sentence took a fair and balanced view. The reasons which weighed with the High Court in disagreeing with the trial Court and awarding the capital punishment to the appellant are that he failed to prove that Mst. Asma or her husband Dr. Kazim Khan were in Ireland when in February 1985 Wajid Ali Khan deceased visited that country, as her passport or that of Dr. Kazim were not produced. From these facts the learned Judges of the High Court drew an inference that she was turned out by her husband not on account of the deceased's visit to Ireland but due to her own lapse. They maintained that the appellant could not be given the benefit of her artificial suspicion.
In their opinion he had no right to stop the deceased from attending the marriage of his cousin Asad. The fact that the appellant sent a warning to the deceased not to attend the marriage function, in the estimation of the learned Judges, was indicative of his pre-planned intention to kill the deceased, if he attended the function. They observed that mere attending the marriage function could not be considered as an act of provocation by the deceased, so as to murder him as well as his maternal uncle Haroon Akhtar deceased. It was thus, held that the appellant richly deserved the penalty of death.
5. In order to find out as to whether or not the case before us presents any extenuating circumstances warranting lesser penalty, it is necessary to examine juxtaposition, the defence plea alongwith the prosecution version. It may be observed that in his statement under section 342, Cr.P.C. The appellant denied the occurrence and attributed his involvement to sheer suspicion but he filed a written statement before the trial Court, reflective of the events, constituting the background of this unfortunate occurrence. It is reproduced below:-- "Mst. Aasma is the daughter of my brother Akhlaq Ahmad Khan, but she was brought up by me as I myself am issueless.
' Haroon Akhtar deceased and Javaid Akhtar P.W., real maternal uncles of Wajid Ali deceased wanted the hand of Mst. Aasma in marriage for Wajid Ali deceased. This proposal was vehemently opposed by me as Wajid Ali deceased was a vagabond, drug-addict and had no ostensible means of livelihood. Haroon Akhtar made effort to assure me that Wajid Ali would abandon bad society but still I did not agree to this proposal. Haroon Akhtar and Javaid Akhtar took this refusal as a personal insult and made it a point for prestige. In January 1985 Mst. Aasma was married to Dr. Muhammad Kazim Khan who had settled in America. During the same month Dr. Kazim Khan alongwith his wife Mst. Aasma went to Ireland and in February, 1985, Wajid Ali deceased went in pursuit of Mst. Aasma on his passport to Ireland. He poisoned the mind of Dr. Kazim Khan against his wife and thus created differences between the spouses. Dr. Kazim Khan then brought Mst.
Aasma to Pakistan and left her in my house. Thereafter Haroon Akhtar and Javaid Akhtar approached me and asked me to get Mst. Aasma divorced from Kazim Khan and marry her with Wajid Ali deceased on the grounds that no one was going to accept her after she was divorced by Kazim Khan. I once again turned down their proposal. I also abused them and turned them out of my house. After the return of Mst. Aasma Wajid All deceased started extending threats to me on telephone that he would not leave me alive to oppose his marriage with Mst. Aasma. He also started a campaign of vilification and indulged in indecent talks about Mst. Aasma wherever he used to sit. For this reason about 10/12 days prior to the marriage of Asad I sent a message to Wajid Ali deceased through Umair-ul-Haq (given up P.W.) that he should not come with the Barat of his cousin Asad to the bride's house as he was likely to create unpleasantness due to his misconduct.
This message was duly conveyed by Umair-ul-Haq to Wajid Ali while he was present at the shop of ljaz Babar (given up P.W.)."
6. It is correct that Javed Akhtar (P.W. 6) in his statement asserted that neither Wajid Ali Khan, nor Haroon Akhtar nor Hamid Ali Khan asked the hand of Mst. Aasma. He also denied that the appellant vehemently opposed the proposal of giving the hand of Mst. Aasma to Wajid Ali Khan deceased. He was, however, confronted with his statement under section 161, Cr.P.C. Wherein it was recorded that the hand of Mst. Aasma was demanded for Wajid Ali Khan. He admitted that the deceased went abroad in February 1985 and that Mst. Aasma came to live with the appellant. He deposed that he had no knowledge that the appellant sent a message through Umair-ul-Haq to Wajid Ali Khan that he should not follow Mst. Aasma, as already the family had been disgraced due to his conduct and Aasma ruined. This Umair-ul-Haq is brother-in-law of Haroon Akhtar deceased and was cited as witness. A suggestion was put to Javed Akhtar that Umair-ul-Haq was being given up, as he declined to support the prosecution, to which he denied. The record, however, demonstrates that subsequently this witness was given up. During the cross-examination Javed Akhtar conceded that the appellant took an active part from the side of the bride at the time of her Nikah and he also got signature of Hamid Ali Khan on the Nikah Nama and was also present when the meal was being served. Shah Qasim Khan (P.W. 11) is the other eyewitness. Hamid Ali Khan is his brother-in-law. It is in his statement that Mst. Aasma was married to Dr. Kazim Khan before the occurrence, who took her abroad. That the couple could not pull on, consequently she came back and started living with the appellant, who considered that Wajid Ali Khan deceased was the cause of strained relations between Mst. Aasma and her husband. This witness however stated that Wajid Ali Khan himself told him that the appellant sent a message to him (Wajid Ali Khan) that he should not participate in the marriage, but he was not aware that who conveyed this message to the deceased. From the statement of Abid Ali Khan (P.W. 7) the elder brother of Wajid Ali Khan, it transpires that the appellant wanted the deceased not to attend the marriage lest the situation might worsen.
Another feature of the case is that Hamid All Khan, the father of Wajid All Khan did not join the investigation. This fact was admitted by Abid All Khan, though he refuted the suggestion that Hamid All Khan had dissociated himself from Wajid All Khan due to his being a vagabond. The defence has however, attributed Hamid All Khan's keeping himself aloof from the investigation of murder case of his son to bad antecedents of the latter. The statement of this witness further indicates that though he did not accept the suggestion that there was apprehension of mischief at the hands of Wajid All Khan and Haroon Akhtar at the time of marriage of Mst. Aasma with Dr. Kazim, and for that reason Hamid Ali Khan asked the appellant to arrange her marriage ceremony at his residence, 5-Begum Road, Lahore yet he conceded that her engagement took place in the house of Hamid All Khan. This witness, however, later on volunteered the statement that paternal- grandmother of Mst. Aasma also resided at 5 Begum Road, and the engagement took place there.
It was with this material on the record that the trial Court took the view.
"It is admitted by the prosecution that Wajid All deceased went abroad in the month of February 1985 and the same finds support from the photostat copies of passport mark CI to C4 whereafter she was externed from the house of her husband. This conduct of defaming the niece of the accused must have actuated him to commit the crime and it refrained the father of Wajid All deceased from joining the investigation of this case and it is evident from the record that he did not join the investigation. Furthermore something other than the motive given by the P.Ws. Must have happend immediately before the instant occurrence which compelled the accused to fire at the deceased to take their lives. It is in the evidence that the accused was moving in the marriage party and took active part in getting the signature of the father of Wajid All deceased on the Nikahnama. According to Javed Akhtar P.W. Haroon Akhtar and Wajid All deceased did not provoke him before the instant occurrence as discussed earlier. Now the question arises as to what was the thing which compelled him to commit the offence. What actually happend immediately before the instant occurrence is shrouded in obscurity and it is sufficient to bring the case out of capital punishment."
7. After careful examination of the judgments of the two Courts below, we do not feel inclined to subscribe to the reasoning of the High Court. The appellant was not bound to prove to 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. We find there are some indications on the record that Wajid Ali Khan deceased was aspirant for having the hand of Mst. Aasma, she was, however, married to Dr. Kazim but to the misfortune of her family the relations between the couple became strained. Undisputedly, Wajid Ali Khan deceased went abroad and that period seemingly coincided with the rupture in the harmonious life of the couple, resultanly she was brought back to Pakistan by her husband and pushed to the house of the appellant. The prosecution has not explained the reasons for the deceased's journey to Ireland. We feel that the appellant has succeeded in casting some doubt on the version of the prosecution case and he is entitled to its benefit. Reference in this connection may be made to the view taken by this Court in Mst. Bevi v. Ghulam Shabbir and another (1980 SCMR 859):--"it has been held in some cases that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence". Conceivably, the appellant was not swayed by any inflated feelings of abnoxious attitude of Wajid All Khan. The events, as happened, preceding the occurrence might have genuinely created an impression in the mind of the appellant that Wajid Ali Khan was responsible for ruination of the matrimonial life of Mst. Aasma and constantly inflicted indignation on his family, and that in this respect he had the support of his uncle Haroon Akhtar deceased who wanted her hand for Wajid Ali Khan.Keeping in view the material on record, it cannot be said that the case before us does not represent the mitigating circumstances. The law in this behalf as laid down in Muhammad Tahir Khan v. The State (1983 SCMR 1169), is: "The prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death".
8. Brigadier Farooq Ahmad is the cousin of the appellant. The ladies of the appellant's family must have participated in the marriage function. The possibility that Mst. Aasma had to visit the bride's house cannot be ruled out. Presumably, it was in this context that to avoid the possibility of any unpleasantness, the appellant sent a message to Wajid Ali Khan through Umair-ul-Haq not to accompany the Barat. Such an act on the part of appellant, in the situation in which he was placed, was not imprudent. It is in the prosecution evidence that the appellant took an active part in the Nikah ceremony of the bride, and in accordance with the social tradition remained in attendance when the dinner was served to the guests. The presence of Wajid Ali Khan among the guests must have been exceedingly abhorrent to the appellant, resulting in deprivation of power of self-control.
The provocation might not be sudden, but the indignation wrought on the appellant, bedevilled by the events involving the honour of his niece brought up by him as his daughter, though in a low profile was yet continuous. Upon the facts of the case, though the appellant is not entitled to the benefit of 1st Exception to section 300, P.P.C. Yet on account of these extenuating circumstances he deserves the lesser punishment. This view finds support from Shahzada Khan v. The State (1984 SCMR 1161) in which persistent low toned annoyance suffered by the convict at the hands of the deceased was considered as a mitigating circumstance and the alteration of death sentence into life imprisonment by the High Court was upheld by this Court, and the following observations were made:- "....The only motive available on record through the confession of the accused which as demonstrated above has not been proved to be untrue was that the deceased used to tease and annoy the appellant and this had continued for some time. It was a persistent low-keyed provocation which kept on simmering in the mind of the appellant. Thus even if as held by the High Court it is assumed that it was not a case of motive shrouded in mystery the motive for the murder was the constant annoyance and embarrasssment caused by the deceased to the appellant."
9. In the matter of quantum of sentence we agree with the learned trial Court and accept this appeal to the extent that the death sentence is converted into life imprisonment, on both the counts, to run concurrently. The sentence of fine of Rs,20,000 on two counts and in case of default in payment, to suffer further rigorous imprisonment for four years, awarded by the learned trial Court, is not disturbed. To meet the ends of justice we further order that the appellant shall pay Rs,50,000 as compensation, under section 544-A, Cr.P.C. To the heirs of each of the deceased. If the amount is not paid, it shall be recovered as arrears of land revenue for the benefit of the heirs of the two deceased. In case of default in payment of compensation, the appellant shall also undergo further imprisonment for six months. The appellant, shall, however, be entitled to the benefit of section 382-B, Cr.P.C.