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Official Citation: 1969 SCMR 512
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2019
Decision Date: 2019-03-14
Parties: Ali Ahmad vs The State & another
This judicial decision was delivered by the Supreme Court of Pakistan on 2019-03-14. The matter involves proceedings between Ali Ahmad and The State & another, officially reported as 1969 SCMR 512. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1969 SCMR 512
Court Name: Supreme Court of Pakistan Judge(s): Syed Mansoor Ali Shah, Manzoor Ahmad Malik, Sardar Tariq Masood Title: Ali Ahmad vs The State & another Case No.: Criminal Appeal No. 154-L of 2013, and Criminal Petition No. 366-L of 2013 Date of Judgment:2019-03-14 Reported As: KLR 2020 Supreme Court Cases 185 Result: Order accordingly
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, J.-- Ali Ahmad (the appellant), murdered his sister , Rabia Khalil and her paramour , Raheel Arif, in his own house, in the wee hours of the night (3:00 am) on 23.04.2006. He was thereafter booked in FIR No.155 of the same date registered at Police Station, City Gojra, and District Toba Tek Singh for offences punishable under section 302 P.P.C. After regular trial, he was convicted under section 302(c) PPC and sentenced to rigorous imprisonment for 10 years by the Trial Court. Upon appeal by the complainant the High Court through impugned judgment dated 26.02.2013 set-aside the judgment of the trial court and convicted the appellant under section 302(b) PPC and sentenced him to imprisonment for life, thereby the criminal appeal of the complainant was allowed, whereas the criminal appeal filed by the appellant seeking acquittal was dismissed. 2. When this appeal came up for hearing before this Court on 27.3.2014, it was pointed out that the heirs of the deceased Rabia Khalil had entered into compromise with the appellant. Criminal Misc. Application No. 512-L/2013 was placed on the record in this regard. which was allowed and the appeal of the appellant was partly accepted to the extent of Rabia Khalil and conviction of the appellant qua her murder was set aside, while the appeal to the extent of conviction qua the murder of Raheel Arif was kept pending, which has come up for hearing before us today . 3. Story of the prosecution is that the brother of the complainant, Muhammad Nawaz, was hospitalized due to a heart condition at Bashir Clinic. Gojra Road, Gojra on 21.04.2006. The appellant, having close terms with Muhammad Nawaz and his family , regularly visited him at the clinic. At the end of one of his visits to the clinic on 23.04.2006, the appellant, around 2:15 am, requested Raheel Arif, nephew of the complainant, to walk him home from the 'clinic. Around 3:00 am the same night, the complainant, who was also a the clinic, went out to drop Hassan lftikhar (PW-12) and Adeel Arif (brother of Raheel Arif) home on his motorbike. The complainant party on their way. home and while passing by Mehdi Mohalah, heard a fire shot in a street and on hearing the same, turned and drove into that street and saw the appellant firing at Raheel Arif, who succumbed to his injuries and died in the street. The crime report continues to state that thereafter the appellant went into the house and locked the door and more fire shots were heard from inside the house. According to prosecution the motive behind the murder was that the appellant suspected that Raheel Arif had illicit relations with his sister Rabia Khalil. 4. The defence version, as per statement of the appellant recorded under section 342 Cr.P.C, is that he murdered the deceased and his sister due to grave and sudden provocation when he saw his sister in a compromising position with the deceased, as he returned home from medical clinic in the wee hours of the night on 23.4.2006. 5. We have heard the learned counsel for the parties and have examined the record and the judgments of the courts below . The trial court disbelieved the presence of the eye-witne sses, the complainant, All Ahmad (PW-1 1) and Hassan lftikhar (PW-12) at the site of the occurrence after a careful appraisal of their testimony , supported by cogent reasons. The High Court has not upset the said findings in the impugned judgment. Additionally . we find that accord ing to the prosecution the complainant (PW-1 I) set out on his motorbike to drop Hassan lftikhar (PW-1 2) and Adeel Arif (brother of the deceased Raheel Arit) at their respective homes. In the cross-examination the eyewitnesses (PW- I 1 and PW- 12) and Syed Kazim Hussin (PW- I), the draftsman who prepared the site plan (Ex-PA), stated that the place of occurrence does not fall on the way to their homes. The site plan (Ex-P A) does not even show that the road to Samundari Road, Guishan Colony or Abdullahpur (areas where residences of PW-12. Adeel. Arif and PW1 I are situate) passes through the place of occurrence. According to the site plan the complainant party saw the occurrence from a distance of 297 feet, in the dead of the night. There is a contradiction between the statements of the two eye- witnesses (PW-11 & PW-12) regarding their distance from the site of occurrence, PW-12 categorically stated in his cross-examination that he was present during the occurrence at a distance of 14/15 feet from the place of occurrence, while PW-11 supports the site plan which describes
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the distance to be 297 feet. This inconsist ency between the statements of the two eye-witnesses casts doubt on the case of the prosecution. The light of the motorcycle and a private bulb installed in the doorway of the house of the appellant is also suspect as neither the said bulb nor the motorcycle was recovered. Adeel Arif, one of the three eyewitnesses, being the real brother of the deceased and as a consequence being the most aggrieved amongst them, was given up by the prosecution as being "unnecessary ," giving rise to an adverse inference regarding his presence at the scene of the crime. The above analysis makes the presence of the eye-witnesses at the crime scene doubtful, as conceded by the trial court. 6. With the presence of the eye-witnesses doubtful at the scene of the crime, it is not safe to place reliance on the ocular account. As a consequence, the medical evidence or the recovery of the firearm from the appellant lends little support or corroboration, to the case of the prosecution. For the above reasons we are of the view that the prosecution failed to establish the culpability of the appellant, on the basis of its evidence. 7. The High Court did not examine the case of the prosecution and appraise its evidence to find out whether the prosecution had succeeded to prove the charge against the accused but instead, examined only the defence plea by placing reliance on Article 121 of the Qanun-e-Shahdat Order . 1984 ("QSO") and held that the appellant had failed to prove his plea of grave and sudden provocation as taken in his statement under section 342 Cr .P.C. and proceeded to convict him under section 302(b) PPC for the of fence of "honour killing", as alleged by the prosecution. Process of appraising evidence and scope of Article 121 of QSO 8. In a criminal trial, it is now jurisprudentially well-entrenched, the proper course for the court is to first discuss and assess the prosecution evidence, particularly the reliability of the eye-witnesses, in order to arrive at the conclusion as to whether or not the prosecution has succeeded in proving the charge against the accused on the basis of its evidence. Burden is always on the prosecution to prove its case and it is only when a prima fade case is made out against the accused sufficient to justify his conviction , does the burden shift upon the accused under Article 121 of the QSO, if he relies on any of the General Exceptions in the P.P,C or within any special exception or proviso contained in any other part of the PPC or in any law defining the offence charged. If the prosecution fails to prove its case against the accused, the question of shifting of burden upon the accused does not arise as it becomes immaterial. Where the accused has taken a defence plea (like, self defence, provocation, accident, etc.) which relates to an essential ingredient of the offence charged, the court is to appraise the prosecution case and the defense version in juxtaposition to adjudicate the matter . 9. The approach adopted by the High Court, in the instant case, in examining the defence plea of grave and sudden provocation in isolation from the prosecution evidence was incorrect. The High Court did not appraise the prosecution evidence at all and convicted the appellant, under section 302(b) PPC, on the basis of its finding that he had failed to establish his defence plea of grave and sudden provocation This approach of the High Court in coming to the conclusio n of the culpability of the appellant was contrary to the law declared by .the two larger benches of this Court in the cases of Wali Muhammad and Ashiq Hussain . In the cited cases this Court authoritativ ely declared that the accused cannot be convicted on the ground that his defense plea appears unconvincing. The prose cution is duty bound to prove its case against the accused beyond reasonable doubt on the basis of its own evidence and is not absolved of this duty even if the accused has taken a defence plea. 10. Reliance by the High Court on Feroze is misplaced; because in Feroze the learned trial court convicted the accu sed, and the High Court affirmed it, on the basis of the evidence of the prosecution and not on failure of the accused to prove its defence plea and this Court maintained the decisions of the courts below by refus ing leave to appeal However , if Feroze creates an impression that the prosecution evidence needs not to be appraised/examined in a case where the accused has taken a defence plea, we strongly dispel the same and reinforce the aforesaid view of the larger benches of this Court expressed in Wali Muhammad and Ashiq Hussain . 11. Consistent jurisprudence has evolved over the years by several judgments of this Court, wherein the accused persons were acquitted by accepting their plea taken in statement under section 342 Cr.P.C., of having acted in furtherance of self-defence, when the prosecution had failed to prove its case against them. The cases of Mehrhan, Najib Raza, Waris Khan, Muhammad Aksar , Faiz and Sultan may be referred in this regard. These cases do not discuss Article Article 121, QSO as the accused is not required to prove his plea of self-self-defense, on failure of the prosecution to prove its case. Honour Killing vis-a-vis grave & sudden provocation 12. The High Court has also relied on Ameer , for holding that the case is one of honour killing and not of grave and sudden provocation, without fully appreciating the difference between the two. In case of honour killing the act of murder is well thought out, calculated and pre- mediated, while in case of grave and sudden provocation the act is committed on the spur of the moment without any pre-planning or deliberation . Family honour may be at the root of both the acts, still , there is a difference between the two; in case of honour killing the act is pre-meditated and a planned one while in case of grave and sudden provocation the act is so sudden that it entails no prior deliberation or planning. Reliance by the High Court on Ameer is misplaced as the murder in that case was a pre-meditated one this glaring distinguishing fact has not been appreciated by the High Court. It is also important to shed some light on the meaning and scope of the expression, "grave and sudden provocation:" Meaning and scope of grave and sudden provocation 13. The expression "grave and sudden provocation" was used by the Legislature in Exception-I to the erstwhile section 300 of PPC as: "Culpable homicide is not murder if the offender , whilst deprived of the power of self-control by grave, and sudden provocation, causes the death of the person who gave the provocation." It is clearly spelt out from the said provisions that the provocation offered by the act of the victim must be so grave and sudden that it would deprive the offender of the power of self-control. Provocation in law thus consists mainly of three elements: (I) the act of provocation, (2, the loss of self-control, and (3) the retaliation/reaction proportionate to the provocation. The relationship of these elements to each other particularly in point of time, is of the foremost importance to determi ne whether there was time for passion to cool and reason to resume. The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self- control, whereby malice which is the formation of an intention to kill or to inflict grievous bodily harm is negatived. The proportionality of the reaction to the provocation is tested on the touchstone of the reaction expected from a reasonable person. What a reasonable man will do in1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
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certain circumstances depends upon various factors including the customs, traditions, social and cultural values, and way of life of the society to which he belongs. No abstract standard of reasonableness can be laid down, in this regard. 14. In his statement under section 342, Cr.P.C, the appellant stated that he murd ered the deceased and his sister due to grave and sudden provocation when he saw Raheel Arif committing zina with his sister , as he returned home from the medical clinic in the wee hours of the night on 23.4.2006. His statement made under section 342 Cr .P.C is reproduced below , for ready reference: "Statement of accused Ali Ahmed s/o Khalil Ahmed caste Butt aged 30 years businessman r/o Mehdi Mohallah, Gojra u/s 342 Cr.P.C. without oath . ................................................................................................................................................................................................ Q.14 Have you anything else to say? Ans. I am innocent. The real facts of the present case are that I had a family terms and good relations with Muhammad Nawaz Gill and also friendly terms with Raheel Gill. Muhammad Nawaz 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 mid night 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 ljaz Gill Nazim 1. C., the real brother of Nawaz Gill and Raheel Gift 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 m home. When I reached my house towards St.No.4, gate was wing omen, Thereafter, 1 went incise my office and found my sister Rabia Khalil and Raheel. Arif both committing Ana with each other. I was holding my licensed pistol. I lost senses and self-control and in the above said circumstances under rave 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 parts 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 PWs. After Free occurrence I had informed the police at PS through telephone and informed them about the present occurrence. On the arrival of the I.O., I had informed ljaz 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 10 on 24.4.2006 had written my statement and produced the same before him which is now on judicial record as Ex.DG. The underwear of Rabia Khalil was found to be stained with semen......" (Emphasis supplied) Scope and purpose of section 342 Cr .P.C. 15. Before examining the effect of statement of the appellant made under section 342 Cr.P.C, it is necessary to explore the scope and evidentiary value of a statement made under Section 342 of the Cr .P.C.. which is reproduced below:- 342. Power to examine the accused . (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary , and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in eviden ce for or against him in any other inquiry into, or trial for , any other of fence which such answers may tend to show he has committed. (4) Except as provided by subsection (2) of S. 340 no oath shall be administered to the accused. (Emphasis supplied) 16. Bare reading of section 342 Cr.P.C. shows that its primary purpose is to enable the accused to know and to explain and respond to the evidence brought against him by the prosecution. It is essential that attention of the accused must be brought to all the vital parts of the evidence brought against him by the prosecution, especially if he is an ignorant person who cannot be expected to know or understand what particular parts of the evidence are or are likely to be considered by the Court to be against him. The purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Muhammed Sharif, J. in Abdul Wahab eloquently explained the object of section 342 Cr.P.C in the following words: "It should not ... be overlooked that the real object of sectio n 342 is not to subject the accused to a detailed cross-examination. It is as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any." Status of a statement under section 342 Cr .P.C. 17. The words "taken into consideration" appearing in section 342(3). Cr.P.C are very' wide. The statement of an accused recorded under section 342, Cr.P.C, has no less probative value than any other "matter" which may be taken into consideration against him within the contemplation of the definition of "proved" given in Article 2(4) of the QSO (previously section 3 of the Evidence Act, 1872), which states that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Muhammad Munir, J., in Rahim Bakhsh, regarding statement under section 342 Cr.P.C. wrote: "I know of no law which says that an admission made by18 19 20 21 22
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an accused person in or out of court unless it is vitiated by any such circumstances as are mentioned in the Indian Evidence Act, cannot be considered to be a matter which the court may take into consideration in coming to its conclusion." The circumstances which can vitiate an admission or confession, referred to by the learned Judge, may be of inducement, threat or promise under which a particular statement is made. A statement under section 342, Cr.P.C. having been made by an accused before court in presence of his counsel has little chance of suffering from such circumstances However, an admission or confession which is improbable or unbelievable, or is not consistent with the overall facts and circumstances of a case may not have any probative value and thus cannot be relied upon by the court for reaching to a conclusion. Conviction on the basis of the statement of the accused under section 342 Cr .P.C. 18. In Abdur Rehman, Amin, Mehrban, Maqsood, and Sattar the High Court disbelieved the prosecution evidence but convicted the accused persons for the offence punishable under section 302(c) PPC or the erstwhile section 304-1 PPC on the basis of the statements under section 342 Cr.P.C., of having committed the offences on account of grave and sudden provocation, without requiring them to prove their statements. This Court maintained the conviction recorded by the High Court, in those cases. 19. Hanif and Ali Muhammad may also be referred in this this regard. In Hanif, this Court maintained the judgment of the trial court whereby the accused had been convicted for offence under section 302(c) PPC, after rejection of the prosecution evidence, on the basis of his plea of having committed the murder under the circumstances of grave and sudden provocation. In Ali Muhammad, this Court reversed the acquittal judgment of the High Court and convicted the accused under section 302(c) PPC, despite rejection of the prosecution evidence, on the basis of version of the accused taken in statement under section 342 Cr.P.C. The version of the accused, in that case, was that he saw the deceased and his wife lying on the same bed in an objectionable position, and acted under sting of grave and sudden provocation. In Shamoon, this Court while relying upon the plea of the accused narrated in statement under section 342 Cr.P.C, of having acted under grave and sudden provocation converted his sentence from section 302 PPC to 304-II PPC; as both the Courts below had disbelieved the ocular testimony of the prosecution witnesses. This Court, in Gul Nissa, made an explicit and unequivocal statement of law that "accused can be convicted on his own statement even if the prosecution evidence is rejected". Principles governing section 342 Cr .P.C. 20. The principles surrounding section 342 Cr.P.0 have evolved for over a period of the last about two hundred years beginning with the case of Sarah Jones (decided in 1827) and taking shape in Balmakund as follows: "...where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible." These principles have been refined and rearticulated by our own courts. A. When prosecution fails to prove its case - the statement of the accused, unde r section 342 Cr.P.C. is to be considered in its entirety and accepted as a fact. Sir Abdul Rashid J., the then Chief Justice of Federal Court of Pakistan observed in Rahim Bakhsh that if the conviction of an accused is to be based solely on his statement in Court then that statement should be taken into consideration in its entirety . In Mehrban S.A. Rahtnan J. speaking for a five member bench of this Court held that "[i]t was not open to the learned Judges, after having rejected the prosecution evidence as unreliable, to dissect the accused's statement and accept it in part and reject the rest of it." In Najib Raza this Court agreed with Mahajan J observed that "it is -Wed law that an admission made by a person whether amounting to a confession on not cannot be and part of it used against him. " In Faiz, another five member Bench Bench of this Court held that where the conviction is based entirely on the statement of the accused then the statement should be taken into consideration in its entirety as the reply or the narration of the accused "is not tested or completed either by cross-examining him or by putting him further questions. The state of his [accused's] mind is not prodded. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence, it has to be accepted as a fact" , and cannot be rejected by adopting a process of appraisement and analysis. In Sultan Abdul Qadeer Chaudhry , J. spoke for the Court to hold that when the prosecution fails to setup a case against the accused and the entire evidence of the prosecution has been discarded and disbelieved the statement of the accused under section 342 Cr.P.C has to…
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