1999 PLP 2215 (MLD)

ZAFAR PASHA CHAUDHRY, J.

Criminal Appeal No.140 of 1993 has been taken up together with Murder Reference No.240 of 1993, wherein, Liaqat Ali appellant was convicted under section 302, P.P.C. for the murder of Muhammad Arif and sentenced to death, alongwith a fine of Rs.50,000, in default thereof to undergo R.I. for two years, on recovery of same to be paid to the legal heirs of the deceased.

2. F.I.R. Exh.PD was recorded at the instance of Asghar Ali on 20-4-1991 at 6-00 a.m. for the murder of Muhammad Arif, committed at 4-00 a.m. on the same day. It was stated therein that Mst. Kaniz Fatima alias Gogi sister of the complainant had illicit liaison with Liaqat Ali appellant. On 20-4-1991, the complainant and his brother Muhammad Ashraf were asleep in the courtyard of their house. Liaqat Ali appellant descended in the courtyard after scalling over the roof of the house. The sound of his footsteps attracted Muhammad Arif deceased who after scaling over the wall took the appellant into his clasp. The complainant and other inmates of the house also got up and raised alarm which attracted Abdul Latif a neighbour. In their sight, the appellant fired a shot from a carbine carried by him hitting Muhammad Arif on left side of his chest who bleeded profusely and fell on the ground. He threatened the other inmates and caught hold of the arm of Mst. rianiz Fatima and took her away alongwith him. Muhammad Arif succumbed to the injuries there at the spot.

3. Asghar Ali complainant (P.W.9), reported the matter at Police Station Khan Garh Dogran. On his statetrent Liaqat Ali Inspector P.W.12 recorded the F.I.R. Exh.PD. He carried out initial investigation. He prepared inquest report Exh.PG and injury statement Exh.PJ respectively and despatched the dead body for post-mortem examination. He also prepared the rough site plan and also got prepared scaled site plan in duplicate. Last worn clothes of the deceased were taken into possession vide memo. Exh.PA. Tehreafter, the investigation was entrusted to Muahmmad Ashraf, Inspector P.W.16. He arrested the appellant on 17-5-1991. Mst. Kaniz Fatima P.W.8 was also recovered from his custody. He got Mst. Kaniz Fatima as well as Liaqat Ali medically examined. On 1-6-1991 at the instance of the appellant, carbine was recovered vide memo. Exh.PC attested by Muhammad Bashir P.W.7 and Abdul Latif, not produced.

4. The prosecution in order to prove its case examined sixteen witnesses in all. Dr. Iftikhar Ahmed P.W.11 conducted the post-mortem examination of Muhammad Arif aged about forty years and found the following injury on his person: -- (1) A fire-arm punctured wound 2.5 c.m. in diameter x going deep on front of left chest,, 3.5 c.m. above left nipple, edges of wound were inverted and blackening and burning of edges was present. This was wound of entry. It was found to be ante-mortem and sufficient in ordinary course of nature to cause death and had been caused within 8 to 12 hours. Nothing worth-notice was elicited from him during the cross-examination. P.W.13 Dr. Zahida Parveen, examined Mst. Kaniz Fatima and found no marks of violence on breast and external genitalia, "Vagina admitted two to three fingers easily and painlessly. No fresh hymen tears present, old healed hymen tears present. On 2, 7, 11 O'clock position. Uterus is about ten week size, soft in consistency and pulsation also positive. Two vaginal swabs taken and sent for Chemical Examiner, Lahore for analysis. In her opinion she is habitual to sexual intercourse and is pregnant of about ten weeks. But about recent act it depended upon report of chemical examiner".

5. P. W .1, P. W .2 and P. W .3 are Police constables and as such formal witnesses. P.W.4 Rab Nawaz Shah prepared the site plan in duplicate Exh.PB and Exh.PB/l. During cross-examination, he stated that wall intervening the house of Muhammad Sharif and Muhammad Arif deceased is about five feet and 10" high.

6. P.W.5 Abdul Majeed, Head Constable again is a formal witness. P.W.6 Muhammad Rafique i--,entified the dead body of the deceased. P. W.7 Muhamamd Bashir attested the recovery of carbine Exh.P-2 vide memo. Exh.PC. P.W.8 Mst. Kaniz Fatima and P.W.9 Asghar Ali complainant are the eye-witnesses. They furnished the eye-witness account of the occurrence and reiterated the statement made by the complainant in the F.I.R. Mst. Kaniz Fatima P.W.8 (sister of the complainant) supported the complainant on all material points concerning the murder of Muhammad Arif and as such lent corroboration to the statement of the complainant. Muhammad Sharif P.W.10 is the father of the deceased. He too is an eye-witness. He also made statement in line with the statement made by the aforesaid two witnesses. P.W.12 Liaqat Ali, Inspector as well as Muhammad Ashraf P.W.16 are the Investigating Officers. The salient features of their investigations have been enumerated above. P.W.14 and P.W.15 both are constables as such formal witnesses who stated about handing over of the sealed parcel of swabs and carbine to the office of Chemical Examiner and S.P: Technical Services. The learned prosecutor after tendering the report of the Chemical Examiner P.M. report of Serologist Exh.PN. another report of Chemical Examiner P.O. and report of SP, Technical Services P.P., closed the case of the prosecution.

7. The appellant was examined under section 342, Cr.P.C. He denied the allegations against him and also recovery of the carbine at his instance. In answer to question No. 13, as to why the case against him, he stated that he kept on supporting the family of Mst. Kaniz Fatima for the last about one year. Her parents agreed to give her hand in marriage to him but subsequently refused. Mst. Kaniz Fatima came to Lahore with him on 18-4-1991, made a statement in his favour before a Magistrate and thereafter, entered into marriage with him vide Nikahnama Exh.DB. He, however, denied of having murdered Muhammad Arif, alleging that someone else had murdered him. He admitted that he alongwith his wife (Kaniz Fatima) were taken into custody by the police of Khan Garh Dogran from Gujranwala. He added that Mst. Kaniz Fatima was actually subjected to beatings and torture and was compelled to depose against him. He also pointed out that Muhammad Arif deceased had earlier divorced his earlier wife, therefore, he had illicit relations with strange persons and unknown assailants committed his murder which remained unwitnessed. He, however, did not appear as his own witness as envisaged under section 340(2), Cr.P.C., nor he produced any evidence hi defence.

8. The learned counsel for the appellant argued that the prosecution not produce any independent witness. The only independent witness Abdul Latif their neighbour who according to the prosecution witnessed the occurrence was not examined. All the three eye-witnesses are inimical therefore no reliance can be placed on their testimony. He however, submitted that the prosecution version is improbable as according to him Muhammad Arif deceased who was asleep in the adjoining house could not be awakened with the sound of foot steps, especially when none of the inmates of the house who were sleeping in the courtyard where Mst. Kaniz Fatima was residing did not get up. The prosecution, therefore, has not come up with the true version. The appellant has been implicated merely on account of suspicion; that the statements of the P.Ws. are not supported by any evidence; the motive has not been proved by the prosecution and that the alleged recovery of carbine P-2 at the instance of appellant is inconsequential and does not in any way strengthen the prosecution case.

9. However, after arguing the appeal at some length, the learned counsel chose not to contest the conviction of the appellant. He, however, argued with vehemence that sentence of death was not warranted and the appellant should be awarded the alternate or lesser penalty of imprisonment for life.

10. After examining the prosecution evidence, we find that the prosecution' witness Mst. Kaniz Fatima, Asghar Ali and Muhammad Sharif have made I consistent statements. They have supported the prosecution version as given by the complainant in the F.I.R. and all of them have narrated the incident in the same manner. P.Ws. cannot be treated as interested witnesses because mere relationship of witnesses with the deceased is not sufficient to treat the witness ' as of the witness has any enmity or malice towards as an interested witness. No the appellant to falsely implicate him. The occurrence took place at 4-00 a.m. and the matter was reported at 6-00 a.m. without any loss of time although the police station is situated at the distance of about fourteen kilometres. The version which was promptly reported to the police station has been supported by the medical evidence of Dr. Iftikhar Ahmed P.WA

1. The injury on the person of the deceased has been caused by a fire-arm and that too from a close range. The argument that after the deceased had been held in clasp or in Japha he could not have been caused the injury with fire-arm, is not of any substance. The very fact that, the injury was caused from a very close range rather supports the prosecution version than render it as improbable or unreasonable. The recovery of blood-stained earth from the place of occurrence leaves no doubt that the occurrence did take place in the house of the complainant. The defence did not even dispute the place of occurrence. If the occurrence took place in the house of the complainant then the best witnesses were the inmates of the house who have all been produced by the prosecution in support of its case. In our country women are not cited or produced as witnesses unless they have in fact seen the occurrence. Mst. Kaniz Fatima who is claimed by the appellant to be his wife, has also supported the prosecution as such the prosecution has proved the case beyond any shadow of doubt and the conviction C of the appellant is fully justified on the strength of the evidence produced by the prosecution.

11. The contention that the appellant should not have been awarded the extreme penalty of death deserves serious consideration. We have very carefully examined and analysed the facts and the attending circumstances of the case. The learned counsel has argued that even if it is admitted that the murder has been committed by the appellant it is not such a murder which can be treated as pre- planned or premeditated murder. According to the learned counsel the appellant went to the house of the complainant to take his wife alongwith him with whom he had contracted marriage with her free consent two days prior to the occurrence. The marriage was duly solemnized in accordance with Islamic Law and was got registered under the, provisions of Muslim Family Laws Ordinance. He has gone a step further in canvassing that act of the appellant, according to him, in a way is honourable act because after he came to know that Mst. Kaniz Fatima had been impregnated, instead of deserting her he tried to own her as his wife after performing a valid Nikah. The appellant did not have any intention to commit the murder of Muhammad Arif. He had in fact gone with an intention to bring his wife who might have been harmed and killed by the relations on coming to know that she had conceived a child before any marriage. On a question put to the learned counsel appearing on behalf of the State, the learned counsel although argued with vehemence that prosecution has fully established the guilt of the appellant and his conviction under section 302, P.P.C. is absolutely maintainable but he conceded that by considering the relevant facts and ambient circumstances, sentence of imprisonment for life should be sufficient and adequate in the interest of justice.

12. In order to determine as to what should be the quantum of sentence, we find under section 302(b), P.P.C. that in case proof specified under section 304, P.P.C is not available, the accused can be punished with death or p imprisonment for life as Ta'zir. Award of punishment has been qualified with condition that to pickup out of two sentences, Court has to consider the facts and circumstances of each case. In order to specify the punishment we have sought guidance from various precedents laid down by the Hon'ble Supreme Court. In Ajun Shah's case (PLD 1967 SC 185). It was observed by their Lordships that: "In a case of murder the death sentence should ordinarily be imposed unless the trying Judge for the reasons to be recorded by him, considers it proper to award lesser penalty. No doubt, discretion is his and if he exercises that discretion after taking into account all the circumstances, the Appellate Court should not interfere." It was further observed that: -- "Such murders are committed in that area out of a sense of honour and self-respect. Since the appellant was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father arid brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a tonga he lost his balance of mind."

13. Two guiding principles have been laid down, firstly, that in case lesser penalty of imprisonment for life has to be imposed then entire facts and circumstances of the case have to be considered and secondly, if the murder is committed for some sense of honour or out of some self-respect then although murder has been committed, the sentence of death may not be imposed. Very valuable observations have further been made 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. " It means that the frame of mind of a convict has to be adjudged and if the murder is committed under an impression or obsession that he had justification to do an act and in performance of that act, he commits the murder, then even after upholding that murder has been committed, the question of sentence may be re-considered and reappraised. The law is almost settled that if murder is committed without any preplanning or premeditation or in the heat of moment or as a result of sudden flare up extreme penalty of death is not imposed. There is plethora of judgments on this point including 1971 SCMR 647, 1989 SCMR 901 and many other precedents upholding this principle. The reason or rationale underlying this principle is if there is no prior plan or intention to commit murder, the alternate or lesser sentence of imprisonment for life may be imposed. Drawing analogy if in case it is spelt out from facts or circumstances of the case that there was no prior plan or intention to commit murder lesser sentence may be imposed.

14. The other principle to be deduced from these authorities is that while imposing the sentence the Court has to keep in mind the extent of mens tea involved in the commission of the crime. For example a person who commits murder of a young woman after molesting her or a desperado commits the murder of innocent person or a murder is committed for which there is no moral or social justification whatsoever, the gravity of mens tea demands that the sentence of death to be invariably imposed and no leniency is called for. The question of sentence, therefore, shall be considered by keeping in view the gravity, cruelty and extent of criminality or mens tea involved therein. Examining the facts and circumstances of the instant case, we find that the appellant had no premeditation or pre-planning of committing the murder. It is an admitted fact in the F.I.R. as well as in the statements that the appellant had illicit relations with Mst. Kaniz Fatima. During cross-examination of the complainant Asghar Ali P.W.9, it was admitted by him that they had not asked the accused to stop visiting their house. They had not been even asked the parents of Liaqat Ali to restrain Liaqat Ali to maintain illicit relations with his sister. This statement is further supplemented by P.W.10 Muhammad Sharif father of Mst. Kaniz Fatima that appellant was having illicit relations with Mst. Kaniz Fatima and this fact was known to all the villagers. He, however, denied the suggestion that he used to hand over his earning to him or the family. Unfortunately, the medical examination of Mst. Kaniz Fatima also does not depict a healthy picture. She was found to be pregnant and she was habitual of sexual intercourse. She had apparently not been subjected to any violence or forced act. It was, therefore, argued that on the basis of these facts that the relations of Mst. Kaniz Fatima did not object the appellant to carry on with his illicit liaison with Mst. Kaniz Fatima and, therefore, the appellant's assertion that he has been supporting her family is not without basis. It stands proved that the appellant had married Mst. Kaniz Fatima and, therefore, according to the learned counsel, he was intending to take her away with him. He did not take Mst. Kaniz Fatima forcibly rather, she accompanied him of her own but afterwards on coming to know that her brother who had been fired at succumbed to the injuries, compelled her to support the prosecution version.

15. By taking stock of all the above enumerated facts we can conclude without any difficulty that the murder was definitely not pre-planned or pre meditated. The appellant when came to the house of the complainant did not H have any intention of committing murder of Muhammad Arif. The occurrence took place abruptly at the spot. He fired a single shot which was not repeated, also lends support to the view that he had no plan of committing murder. As ' held in Muhammad Rafiq's case, (1993 PCr.LJ 1707), a Division Bench of this Court awarded lesser sentence wherein the blow was not repeated. As regards motive although the prosecution has set up the same but from the statements of the P.Ws. it is revealed that the appellant was not stopped from visiting the house because no step was taken by the complainant party to prevent him from visiting their house. The murder was committed only when the appellant was intercepted when he intended to take Mst. Kaniz Fatima away from the house: In a case where the prosecution does not come forward with the true motive for the commission cf the crime, in a number of cases the same has been treated as a I mitigating or extenuating circumstance for award of lesser punishment.

16. In view of the above discussion, we uphold the conviction of the appellant under section 302, P.P.C. but convert the sentence of death to that of imprisonment for life. The sentence of fine of Rs.50,000 in view of Qisas and Diyyat Ordinance cannot be maintained. The same is altered to compensation after notice to the learned counsel for the appellant. As such Rs.50,000 will be paid as compensation to the heirs of deceased, in default thereof to undergo further S.I. for 6 months. The appeal is, therefore, dismissed subject to alteration of sentence of death to imprisonment for life. Sentence of Death is Not Confirmed. M.B.A./L-34/L Order accordingly