ZIA ULLAH Versus State

ISHTIAQ IBRAHIM, J.--- Petitioner Kaleem Ullah along with co-accused Asmat Ullah, Muhammad Ashfaq and Zia Ullah, were charged in case FIR No.118/11 dated 28.03.2011, under sections 302 and 34 of the Pakistan Penal Code, 1860 ("P.P.C.") , registered at Police Station Sahianwala , for committing the Qatl-e-Amd of Nadeem Mustafa and Abid Ali, the deceased, respectively with firearms. All the accused except petitioner Zia Ullah, were tried jointly in one trial by the Additional Sessions Judge, Faisalabad ("Trial Court") , whereas petitioner Zia Ullah being a juvenile was tried separately by the same Trial Court in the capacity of a Juvenile Court. Upon conclusion of both the trials, accused Asmaullah and Muhammad Ashfaq, were acquitted, whereas petitioner Kaleem Ullah was convicted under section 302(b), P.P.C. and sentenced to death on two counts and to pay rupees two lacs on each count as compensation to legal heirs of the two deceased in terms of Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment under each count vide judgment dated 21.09.2013.

2.Similarly, vide separate judgment dated 21.09.2013, petitioner Zia Ullah was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life on two counts and to pay rupees two lacs as compensation, under each count, to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. Benefit of Section 382-B, Cr.P.C. was extended to him.

3.The learned High Court while deciding Criminal Appeal No. 337-J of 2013 set-aside the conviction and sentence of petitioner Kaleem Ullah under one count, however, maintained his conviction. under section 302(b), P.P.C. holding him guilty of murder of Nadeem Mustafa deceased and commuted his death sentence to imprisonment for life and thus answered the Murder Reference in the Negative vide judgment dated 27.02.2017 ("impugned judgment") . Similarly, petitioner Zia Ullah was held guilty of committing murder of Abid Ali deceased only, therefore, his conviction and sentence to the extent of murder of Nadeem Mustafa deceased were set aside, however, his conviction under section 302(b) P.P.C. to the extent of murder of Abid Ali deceased, were maintained vide judgment dated 27.02.2017 ( "Impugned judgment" ).

4.Through Criminal Petitions Nos. 601-L and 457-L of 2017, the petitioners-convicts Kaleem Ullah and Zia Ullah, seeks leave to appeal against the impugned judgment(s) of the High Court.

5.Criminal Petition No.481-L of 2017, has been filed by the petitioner-complainant Ghulam Mustafa against the impugned judgment of the High Court, seeking enhancement of the sentence of the convict Kaleem Ullah from life imprisonment to normal penalty of death provided for the offence under section 302(b), P.P.C.

6.According to the prosecution's case, as narrated in the First Information Report (FIR) lodged by complainant Ghulam Mustafa (Exh. PA), the complainant had arranged a tractor and trolley for the use of his son Nadeem Mustafa deceased, who was engaged in the business of soil transportation in partnership with the petitioners-convicts, namely Kaleem Ullah and Zia Ullah, residents of Chak No. 143-KB. It is alleged that a monetary dispute arose between petitioner Kaleem Ullah and the deceased Nadeem Mustafa, which came to the knowledge of the complainant. Upon inquiring from petitioner Kaleem Ullah regarding the cause of the issue, the latter purportedly invited the complainant to visit his house so that the matter could be resolved amicably through mutual consultation. Consequently, on the night of the occurrence at about 10:00 p.m., the complainant along with the deceased Nadeem Mustafa and Abid Ali as well as Muhammad Naeem (PW.2) Tariq Mehmood (given up PW), left their native village Chak No. 140-RB for the house of the petitioners, situated in Chak No. 143-RB. On reaching Khumi Chowk , tyre of one of the motorcycles got deflated which was mended in Salarwala . At about 01:00 a.m., the complainant along with the aforementioned persons allegedly arrived at the house of the petitioners. It is alleged that petitioner Kaleem Ullah opened the door, and as soon as Nadeem Mustafa deceased entered the house along with his motorcycle, petitioner Zia Ullah, armed with a 30-bore pistol, opened fire upon him on the instigation and command of co-accused Muhammad Ishfaq (since acquitted). Nadeem Mustafa deceased sustained multiple firearm injuries on various parts of his body and fell to the ground. It is further alleged that as the complainant and others attempted to flee, petitioner Zia Ullah fired upon Abid Ali deceased with his 30-bore pistol, as a result, he also got hit and fall on the metalled road in front of the house of the petitioners. The complainant and his companions concealed themselves in nearby kikar trees while the accused persons continued firing indiscriminately. Upon hearing the sound of firing, local residents gathered at the spot. The complainant, upon returning to attend to Nadeem Mustafa and Abid Ali, found both of them lying dead, having succumbed to the firearm injuries sustained during the incident. The matter was reported by the complainant on the basis of which FIR Exh.PA was registered against the petitioners and their acquitted co-accused.

7.On arrest of the accused complete challan was submitted against petitioner Kaleem Ullah, co-accused Asmat Ullah, and Muhammad Ashfaq before the Trial Court. Petitioner Zia Ullah being a juvenile, separate challan was submitted against him under the Juvenile Justice System Ordinance, before the Trial Court. On facing regular trial, co-accused Asmat Ullah and Muhammad Ashfaq were acquitted by the Trial Court, whereas, petitioners Kaleem Ullah and Zia Ullah were convicted and sentenced as mentioned in the initial part of the judgment. The High Court on deciding appeals of the petitioners-convicts maintained their conviction, however, modified their sentences as mentioned above vide impugned judgments.

8.We have heard the arguments of learned counsel for the parties and perused the record, evidence and the impugned judgment with their able assistance.

9.Upon meticulous examination of the record and appraisal of the evidence brought on the file, we have noted that the petitioners-convicts have not questioned the occurrence having taken place within the four corners of their house. However, they have consistently maintained a specific defence plea from the date of their arrest. As per their version, on the night of the occurrence, the deceased Nadeem Mustafa, who was allegedly maintaining illicit relations with their sister Mst. Tayaba, unlawfully entered their house at midnight in the company of his cousin Abid Ali deceased. The petitioners, upon noticing the unknown persons inside their house at midnight, purportedly mistook them for intruders or thieves. It was in this backdrop that petitioner-convict Zia Ullah, allegedly in exercise of the right of private defence of person and property, resorted to firing upon them resulting into their death. This plea of defence has not been raised belatedly or as an afterthought by the petitioners-convict, rather the same has been consistently put forth from the earliest stage of the case. It has also been suggested during the cross-examination of the prosecution witnesses, particularly the alleged eye-witnesses and the Investigating Officer. The Investigating Officer has admitted several aspects of the petitioners' version. Similarly, the alleged eyewitnesses, too, have conceded material portions of the defence version which we will discuss in the later part of the judgment. Before proceeding to adjudge the comparative merits of the two versions, it is imperative to examine the statements of the petitioners-convicts recorded under Section 342, Cr.P.C. In this context, petitioner-convict Zia Ullah, in his statement, has furnished a detailed narrative, which reads as under-

Petitioner-convict Kaleem Ullah in his statement under section 342, Cr.P.C. reiterated the same version as furnished by petitioner-convict Zia Ullah in the following words:-

10.At this juncture, we are confronted with two mutually destructive versions, one presented by the prosecution and the other by the defence. It is a settled principle of criminal jurisprudence that where two versions emerge from the record, the primary obligation of the Court is to weigh both versions in the scale of justice and determine which of the two is more probable, natural, and appealing to a prudent mind. The prosecution, in a criminal trial, is burdened to prove its case beyond reasonable doubt. The defence, however, is not required to establish its plea to the same standard. It is sufficient if the defence plea, when considered in light of the entire evidence on record, appears reasonably probable and creates doubt about the prosecution's case. In such circumstances, benefit of doubt must go to the accused, as per the cardinal principle of criminal justice.

11.First, we proceed to examine the version of the prosecution in the light of the evidence available on the record. According to the contents of the FIR (Exh.PA), the occurrence is stated to have taken place on 28.03.2011 at about 01:00 am. (night) inside the house of the petitioners-convicts situated at Chak No. 143-RB. The complainant Ghulam Mustafa (PW. 1), is resident of Chak No. 140-RB Mitianwala. In his report he alleged that on the night of occurrence along with the two deceased and Tariq Mehmood and PW Muhammad Naeem left their village at 10:00 p.m. to reach the house of the petitioners for the purpose of settling a monetary dispute arising out of a purported joint business of soil transportation conducted through tractor trolley. The complainant (PW.1) and his son Muhammad Naeem (PW.2), claimed to be eye-witnesses of the occurrence. On careful scrutiny of their statements, particularly their we find glaring contradictions and cross-examinations, inconsistencies on all material particulars, which cast serious doubt about their presence at the spot at the time of occurrence.

12.According to the complainant (PW.1), they departed from their village at about 10:00 p.m., however, at Khumi Chowk , their motorcycle was punctured, therefore, they proceeded on foot to Salarwala where the same was repaired and they ultimately reached the house of the petitioners-convicts at 01:00 a.m. In stark contrast, Muhammad Naeem (PW.2) deposed that they left their village at about 11:30 p.m. to 12:00 midnight for the house of the petitioners-convict. Similarly, complainant stated in his FIR that there was some monetary issue between the deceased Nadeem Mustafa and petitioner Kaleem Ullah, but during his examination before the Court, he introduced a new and improved version by asserting that an amount of Rs. 135,000/- was due from the accused, which had allegedly been given to them for Kaleem Ullah's marriage arrangements. Contradictions between the two eye-witnesses are also evident with regard to the ownership and contribution towards the tractor-trolley. The complainant claimed to have purchased the tractor from one Hanfi and the trolley from Irfan, whereas according to PW.2 half of the cost of the tractor trolley was contributed by Nadeem Mustafa and the other half by the petitioners and that the tractor and trolley were obtained from different sources. Despite claiming ownership of the tractor trolley, the alleged eye-witnesses failed to produce any documentary evidence such as registration documents or ownership papers, which seriously undermines the credibility of the claimed joint business. Further contradictions are observed concerning the presence and arrival of deceased Abid Ali. Complainant stated that they first went to the house of deceased Abid Ali and from there proceeded to the petitioners' house. In contrast, PW.2 claimed that Abid Ali had arrived at their house two days before the occurrence. The distance between the village of Abid Ali and that of the complainant is stated to be around 30 kilometers. It is also to be noted that, according to the complainant, all five persons were travelling on two motorcycles. He stated that he, along with his son Muhammad Naeem and Tariq Mehmood, was riding one motorcycle, while the two deceased were on the other. Contrary to the version of PW.2 he deposed that Tariq and Abid had not come to their house but were picked up from their own residence.

13.Moreover, the conduct of the eye-witnesses at the time of the occurrence is wholly unnatural and inconsistent with normal human behaviour. It is claimed that during the firing, the complainant (father of deceased Nadeem Mustafa) and PW.2 (his brother) took shelter behind kikar trees and made no attempt to intervene or raise alarm. This passive conduct, particularly from close blood relations, is highly improbable and not appealing to a prudent mind. In such traumatic situations, especially involving immediate family members, one would expect instinctive attempts to protect or assist their loved ones rather than retreating to a place of concealment. Equally implausible is the claim of the alleged eye-witnesses that they went to the petitioners' house at 01:00 am. in the dead of night to resolve a monetary dispute. No prudent person would choose such an unearthly hour for the resolution of such a petty dispute. The prosecution has also failed to produce any documentary evidence of the alleged business partnership or any ledger/account to show a financial dispute ever existed.

14.The medical evidence, too, does not lend support to the ocular account. Dr. Abdul Ghafar Shahid (CW.7), who conducted the post-mortem examinations of both deceased, observed that the eyes of Nadeem Mustafa deceased were open, and in the case of deceased Abid Ali, his left eye was open while his right eye was damaged. If the alleged eye-witnesses been present and immediately attended the deceased, the natural course would have been to close their eyes out of human sympathy and cultural practice. This further suggests that the alleged eye-witnesses were not present at the time of the occurrence. Additionally, there is an unexplained delay of 2 hours and 24 minutes in reporting the incident to the police for which no explanation, much less plausible, has been furnished by the complainant. This delay also speaks clearly that the alleged eye-witnesses were not present at the spot. It is also noteworthy that the distance between the complainant's village and that of the petitioners is approximately 3 kilometers via a kacha track and 15 kilometers via metalled road, both routes are having trees on two sides as admitted by the alleged eye-witnesses. If the petitioners had in fact intended to murder the deceased, they could have easily chosen a secluded location on the road and carried out the act under the cover of darkness without exposing themselves within the confines of their own home.

15.In view of the material contradictions, improvements, unnatural conduct, and medical inconsistencies, we are persuaded to hold that the conduct and statements of the alleged eye-witnesses are not in consonance with natural human behaviour and do not inspire confidence. The totality of circumstances leads us to the inescapable conclusion that the alleged eye-witnesses were not present at the scene of occurrence, and their testimony cannot safely be relied upon.

16.The defence version referred to above was put to the alleged eye-witnesses in their cross-examination, which though, they have denied, however, the complainant had admitted that knew that Kaleem Ullah had to go to Lahore and that he might have gone to Lahore on the said day. At this juncture the testimony of Qaisar Youns Inspector (CW.8) is of worth perusal. In cross-examination he stated that accused Kaleem Ullah took the first plea that Nadeem was having illicit relation with his sister and he sued to come to her to spent night in their absence. He further stated that same was the plea of petitioner Zia Ullah. The following part of cross-examination of the I.O. is more relevant to clear the dust from the eyes:-

17.Having placed both the prosecution and defence versions in juxtaposition, it is evident that neither party has presented a fully candid account of the incident, and material facts appear to have been suppressed. Nevertheless, one fact remains undisputed and firmly established on the record that the occurrence took place at midnight inside the house of the petitioners-convicts, resulting in the unnatural death of Nadeem Mustafa and Abid Ali deceased due to firearm injuries. This alone gives rise to a strong inference that the deceased had entered the premises of the petitioners at the relevant time. The petitioners have consistently taken the plea that the deceased unlawfully entered their residence at night and that they mistook them for intruders or thieves. They further alleged that deceased Nadeem Mustafa was involved in an illicit relationship with their sister Mst. Tayaba. Although Mat. Tayaba was not produced as a defence witness, the Investigating Officer (IO) himself, in his testimony, acknowledged the inter-personal connection between the deceased and the petitioners' sister including contact through mobile phones, thus lending partial support to the defence version. It is a settled principle of criminal justice that the role of an Investigating Officer is not to build the prosecution's case alone, but to conduct a fair and impartial investigation aimed at discovering the truth. In the present case, the IO apparently failed in this duty, having made no meaningful effort to investigate the defence plea, despite its early and consistent assertion and its reflection in the cross-examination of prosecution witnesses. This omission constitutes a serious lapse, which has materially affected the fairness of the investigation. Even so, a holistic appraisal of the evidence and surrounding circumstances supports the plausibility of the defence version. The incident occurred inside the petitioners' house at an unusually late hour. The prosecution has brought forth no evidence of premeditation or prior animosity of the petitioners-convicts with the deceased. The multiple firearm injuries sustained by both deceased suggest a reaction born of sudden provocation or emotional impulse, rather than a calculated act. However, it is equally evident that the petitioners exceeded the bounds of lawful defence. The law recognizes the right of a person to protect his life and property against unlawful aggression, but the exercise of such right must be reasonable and proportionate to the threat. In the present case, the deceased were unarmed. There is also no evidence that they inflicted or attempted to inflict harm upon the petitioners nor was any effort made by the petitioners to apprehend the deceased or seek assistance from neighbours or law enforcement. The infliction of multiple firearm wounds on the persons of both deceased reflects an excessive and disproportionate use of force. The prosecution has not established any element of prior intent or planning on the part of the petitioners. The incident appears to have arisen suddenly, possibly due to the alleged illicit relationship or a mistaken belief that the deceased were trespassers. In either scenario, the occurrence was not preordained, but an impulsive reaction to a perceived intrusion. In such circumstances, the case clearly falls within the purview of Section 302(c) of the Pakistan Penal Code, which addresses homicides committed without premeditation but under grave and sudden provocation, or in the mistaken exercise of the right of private defence. It is now a consistent and well-settled view of this Court that where the accused exceeds the right of self-defence without any element of pre-planning, the offence is not punishable under Section 302(a), P.P.C., but rather under Section 302(c), P.P.C., which allows for a lesser punishment in light of mitigating circumstances.

18.In view of the foregoing reasons and law on the subject, though the petitioners are not entitled to a complete acquittal, but their conviction under Section 302(b), P.P.C. is also not sustainable. The facts and evidence bring the case within the parameters of Section 302(c), P.P.C., and the sentence must accordingly be modified to reflect the true nature of the offence and the degree of culpability involved. Even otherwise, the major portion of the sentence has been served out by the petitioners-convicts. As per reports of Superintendent Central Jail, Faisalabad, the expected dates of release of petitioner Zia Ullah is 15.10.2027 and that of petitioner Kaleem Ullah is 10.10.2027 .

19.Accordingly, Criminal Petitions Nos. 457-L and 601-L of 2017, are converted into appeals and allowed. The conviction of the petitioners-convicts under section 302(b), P.P.C. is converted to section 302(c), P.P.C. and they are sentenced to the period already undergone by them. The amount of compensation and period in default thereof are maintained. Benefit of Section 382-B, Cr.P.C. is also extended to them.

Criminal Petition No. 481-L of 2017. On conversation of conviction and sentence of the petitioner-convict Kaleem Ullah, the instant petition for enhancement of sentence has become infrucutous and the same is dismissed accordingly.

JK/Z-10/SC Appeals allowed.