MAAF ALI Versus State

ORDER

ATHAR MINALLAH, J.--- This case involves the shocking and gruesome murder of Mst.Naeema Bibi ( deceased victim ) who was approximately 28 years old. The appellant, Maaf Ali, was the husband of the deceased. He committed the heinous offence of taking the life of his wife inside the courtroom of the Family Court, Gujrat, in presence of Ms. Nasira Parveen, Family Judge, who was presiding over the proceedings at that time.

2.Through our short order of even date, the petition was converted into an appeal and was partly allowed to the extent of acquitting the appellant from the charge under section 7(a) of the Anti-Terrorism Act, 1997 ( Act of 1997 ) . The conviction of the appellant under section 302(b) of the Pakistan Penal Code, 1860 ( P.P.C. ) , the compensation awarded under section 544-A of the Code of Criminal Procedure, 1898 ( Cr.P.C. ) and the default sentences in case of non-payment were maintained. By a majority of two to one (Justice Malik Shahzad Ahmad Khan dissenting), the sentence of death confirmed by the High Court under section 302(b) of P.P.C. was also upheld and the appeal was dismissed to that extent. By the same majority, it was held that the manner in which the offence was committed by the appellant was brutal and shocking, amounting to an act outrageous to the public conscience and, therefore, falling within the ambit of fasad-fil-arz as defined under section 299 (ee) of P.P.C. We now record our reasons in support of the short order of even date.

3.The complainant of this case, Muhammad Nawaz, Sub-Inspector (PW-8) was directed on 24.1.2014 to escort Mst.Naeema Bibi, deceased victim, from Dar-ul-Aman, Gujrat to the Family Court, Gujrat where her suit seeking dissolution of marriage was fixed for hearing. The direction was issued pursuant to the execution of robkar Ex.PB sent by the Judge, Family Court, Gujrat to the incharge of the concerned police station for securing the appearance of the deceased victim. The record reflects that the deceased victim had been admitted to Dar-ul-Aman, Gujrat on 18.12.2013. Muhammad Nawaz, Sub-Inspector (PW-8) along with Sania Noreen, Lady Constable (PW-10), Naeem Akhtar, Constable (PW-9), and other police officials had brought the deceased in an official vehicle from Dar-ul-Aman to the Family Court, Gujrat. The deceased victim was seated on the litigant s bench inside the courtroom, and awaiting her case to be called, when the appellant entered, and in the presence of the Presiding Officer, fatally shot his wife, Mst.Naeema Bibi multiple times. Upon receipt of information, Crime Report No.67 dated 24.01.2024 was registered at Police Station Civil Lines, Gujrat for the offences under sections 324 of the P.P.C. and sections 13 and 20 of the West Pakistan Arms Ordinance, 1965 ( Ordinance of 1965 ) . Subsequently, upon the death of Mst. Naeema Bibi, section 302 of the P.P.C. was added. After completion of the investigation, the report under section 173 of Cr.P.C. was filed and the charge was framed on 24.2.2014. The prosecution examined its witnesses and brought on record evidence to prove the guilt of the appellant. The appellant neither opted to be examined on oath nor expressed any intention to produce witnesses in his defense. His statement under section 342 of Cr.P.C. was recorded, wherein he admitted to have committed the gruesome murder of his wife inside the courtroom.

4.The trial court, upon conclusion of the trial, convicted the appellant under section 302(b) of the P.P.C., section 7(a) of the Act of 1997 and section 13 of the Ordinance of 1965. He was sentenced under section 302(b) of the P.P.C. to death and in addition ordered to pay Rs.100,000/- as compensation under section 544-A of the Cr.P.C. to the legal heirs of the deceased and in default to undergo simple imprisonment for six months. He was also sentenced to death under section 7(a) of the Act of 1997 and ordered to pay fine of Rs.100,000/- and serve simple imprisonment for six months in default. He was sentenced to five years rigorous imprisonment under section 13 of the Ordinance of 1965. A reference was sent by the trial court under section 374 of the Cr.P.C. for confirmation of the death sentences. The High Court vide impugned judgment dated 18.4.2017 answered the reference in the affirmative and thus confirmed the sentences of death. The convictions, compensation and sentences in default handed down by the trial court were upheld and the appeal of the appellant was dismissed.

5.We had heard the learned counsel for the appellant who had appeared along with the children of the deceased victim. We had also heard the learned Deputy Prosecutor General, Punjab. The record has been perused with their able assistance.

6.The deceased victim, aged about 28 years, was the lawfully wedded wife of the appellant. She was sent to Dar-ul-Aman on 18.12.2013 and remained under the protection of the State. The deceased victim had instituted a suit before the court of Family Judge, Gujrat seeking dissolution of her marriage. The suit was fixed for hearing on 24.1.2014. The Family Court had issued a robkar directing the incharge of the police station to ensure her attendance in court. In execution thereof, Muhammad Nawaz, Sub-Inspector (PW-8) and other police officials escorted the deceased to the Family Court, Gujrat. Sania Noreen, Lady Constable (PW-10) was seated beside the deceased victim on the litigants bench. The Judge, Family Court was presiding over the proceedings when the appellant entered the courtroom with a firearm weapon and shot his wife.

7.The crime report was registered promptly. The occurrence had taken place at 1 pm. and the crime report was registered at 1:15 pm. The deceased was under the protection of the officials of the State and she was sitting in the courtroom waiting for her case to be called. The Presiding Officer was also present in the courtroom. The testimony of Muhammad Nawaz, SI (PW-8) was supported by Naeem Akhtar, Constable (PW-9) and Mst. Sania Noreen, Lady Constable (PW-10). The latter was sitting besides the deceased when she was shot. The testimonies were consistent, reliable and confidence inspiring. The petitioner was arrested from the crime scene immediately after commission of the offence and the crime weapon was recovered from his possession. The recovered firearm weapon and the crime empties were sent to the Forensic Science Laboratory and its report Ex.PO was positive.

8.The medical evidence tendered in evidence by Dr.Nazish Munawar (PW-3) supported the trustworthy and confidence inspiring testimonies of witnesses who had deposed the ocular account. The post mortem report described firearm injuries attributed to the petitioner. The motive was also not in doubt because the crime scene and the suit fixed for hearing had established what had motivated the petitioner to take the life of an innocent young girl who was under the protection of the State. The prosecution had proved the guilt of the petitioner beyond a reasonable doubt.

9.The learned counsel for the petitioner had rightly argued that the offences under the Act of 1997 were not attracted. It was a dispute between husband and wife, and the ingredients of the offences under the Act of 1997 were not met. Reliance is placed on Ghulam Hussain case. 1 The appellant, therefore, through the short order of even date was acquitted from the charge framed under section 7(a) of the Act of 1997.

10.It is noteworthy, that the deceased was young and she was under the protection of the State officials and sitting inside a courtroom. The Presiding Officer, was also present. The appellant was so desperate, hardened and dangerous criminal that the place of occurrence did not deter from taking the life of an innocent and helpless young woman who was also his children s mother. The motive was the exercise of right by the deceased bestowed upon her by law and the Islamic Injunctions. In the peculiar facts and circumstances of the case, the manner in which the crime was committed could not have been more gruesome, brutal and shocking. It was definitely an act outrageous to the public conscience . The definition of fasad-fil-arz under clause (ee) of section 299 of P.P.C. is definitely attracted in this case.

11.The award of sentence of death by the trial court and confirmed by the High Court was justified, keeping in view, the manner in which the crime was committed, the place of occurrence and conduct of the petitioner. We are, therefore, not inclined to interfere with the sentence and it is maintained.

12.Before parting with this judgment, we feel constrained to record out concerns regarding impunity for violent crimes against women. During the last twelve months, this Bench has dealt exclusively with the appeals arising from convictions involving capital punishment or imprisonment for life. Alarmingly, a significant number of these cases concern victims who are helpless women-mothers, sisters and wives - brutely killed for motives that are often petty, questionable, or grounded in misplaced notions of honour. These cases expose a deeper malaise than mere individual brutality; they reveal a justice system that appears to serve the privileged and not the weak. It is a reality that investigation in most of the cases relating to the deprived or underprivileged classes are either compromised, poorly conducted, or deliberately rendered ineffective. Public attention, institutional response, and media coverage appear to be disproportionately influenced by the social status of the victims when the crime occurs within a privileged class, the investigation tends to be vigorous, and the issue receives extensive coverage in both electronic and print media. However, violence against women belonging to the underprivileged and marginalized segments of the society rarely evokes similar urgency or institutional response.

13.The cases adjudicated by this Bench over the past year reveal a grave absence of deterrence in crimes of violence against women, particularly those from disadvantageous backgrounds. A State where such impunity prevails - where women can be killed or brutalized without consequence and justice depends on privilege has failed in its most fundamental duty to protect the life, dignity and equality of half of its population. This selective application of justice exposes the moral collapse of governance and the society. A State that protects only the powerful and abandons its most vulnerable has ceased to function as a republic governed under the Constitution. It becomes a dominion of the few, for the few. When the blood of the powerless is ignored, and impunity is the privilege of status, the promises set out in the Constitution becomes a hollow myth. Such a State no longer upholds the rule of law-it enforces the rule of power. We expect that the legislature and the executive shall take effective measures so as to put an end to such impunity.

Sd/--

2.It is true that the occurrence in this case took place inside the Courtroom of Miss. Nasira Parveen, Civil Judge/Judge Family Court, Gujrat, where the suit for dissolution of marriage filed by Mst. Naeema Bibi deceased (wife of the petitioner), was statedly pending but mere this fact that the occurrence took place inside the Courtroom, by itself is not sufficient to withhold the relief of alternate punishment i.e., imprisonment for life while ignoring the mitigating factors available in a case in favour of the accused. Reference in this context may be made to the judgments reported as Muhammad Yaqoob v. The State (PLD 2019 Supreme Court 580) and Abrar Ahmad Farooq and others v. The State and another (PLD 2024 Supreme Court 815) . In the case reported as Muhammad Yaqoob supra, the occurrence took place inside the Courtroom of learned Additional Sessions Judge, Gujranwala but keeping in view the mitigating factors of the said case including the failure of the prosecution to prove the alleged motive, the sentence of the accused of the said case under section 302(b), P.P.C., was altered from death into imprisonment for life.

3.In the instant case, we have noted that Muhammad Nawaz SI (PW-8), was the complainant of this case. He alleged that the motive behind the occurrence was a domestic dispute between the petitioner and the deceased. No detail of the domestic dispute between the petitioner and the deceased was brought on the record that as to whether it was dispute of marriage of children of the parties, dispute of maintenance or property etc. Even the family suit which was statedly pending between the parties in the Court of learned Judge Family Court, Gujrat was not produced in the prosecution evidence. Relevant part of the statement of Muhammad Nawaz SI (PW-8), in this respect, reads as under:-

A vague and general motive was alleged by the prosecution, which has not been proved in this case.

4.I have also noted that only the police officials have appeared in the witness box to prove the occurrence and no family member of the deceased had deposed against the petitioner. It is further noteworthy that the mother of Mst. Naeema Bibi (deceased) namely Mst. Bushra Iftikhar (PW-2), also appeared in the witness box as she was witness of identification of the dead-body of Mst. Naeema Bibi (deceased) and in her cross-examination she had categorically stated that she earlier lodged FIR No.1086/2013, dated 02.11.2013, under section 365, P.P.C., at police station Civil Lines, Gujranwala (Ex.DA), regarding the abduction of her daughter namely Mst. Naeema Bibi (deceased). The occurrence in this case took place on 24.01.2014. Mst. Bushra Iftikhar (PW-2), further stated during her cross-examination that one Altaf Rabbani was implicated later-on in the said earlier case with the allegation that he had got sent Mst. Naeema Bibi (deceased) to Darul-Aman . She further stated that on the day of occurrence i.e., 24.01.2014, she (PW-2), appeared in the Court of Miss. Nasira Parveen, Civil Judge/Judge Family Court, Gujrat and she had not seen Maaf Ali (petitioner), in the said Court. She had also stated that she had told the police that the abovementioned Altaf Rabbani had committed the murder of her daughter but the police had not recorded her version. The abovementioned statement of the mother of Mst. Naeema Bibi (deceased), shows that she was not supporting the prosecution case against the petitioner.

5.I have further noted that admittedly the petitioner and the deceased had two (02) children but Mst. Naeema Bibi (deceased), was living in Darul Aman , at the time of occurrence. The real mother of Mst. Naeema Bibi (deceased), namely Mst. Bushra Iftikhar (PW-2), had herself earlier lodged FIR regarding the abduction of her daughter namely Mst. Naeema Bibi (deceased) by one Altaf Rabbani. The said facts speak volumes about the conduct of Mst. Naeema Bibi (deceased), towards her husband and children. As mentioned earlier, not a single member from the family of Mst. Naeema Bibi (deceased), had appeared in the witness box against the petitioner rather her real mother had tried to protect the petitioner in this case. Furthermore, the children of the petitioner had already lost their mother. Now the death sentence of the petitioner will deprive them from the love and affection of their real father.

6.As mentioned earlier, the motive has not been proved in this case. Keeping in view all the abovementioned facts, it is not determinable in this case that as to what had actually happened immediately prior to the occurrence between the petitioner and the deceased, which instigated the petitioner to commit the occurrence and which resulted into present unfortunate incident. I am, therefore, of the view that the sentence of death awarded to the petitioner is quite harsh and the sentence of imprisonment for life would meet the ends of justice. I may refer here the case of Muhamad Aslam and another v. The State (2007 SCMR 1412) , wherein at pages Nos. 1416 and 1417, it has been held as under:-

Similarly in the cases reported as Ansar Ahmed Khan Barki v. The State (1993 SCMR 1660), Mir Muhammad @ Miro v. The State (2009 SCMR 1188) and Ahmed Nawaz v. The State (2011 SCMR 593) , the sentence of death awarded to the accused of the said cases was altered from death to imprisonment for life on the ground that the motive alleged by the prosecution was not proved.

7.In my humble view, it has wrongly been given an impression in the majority judgment that the petitioner belonged to a powerful segment, whereas, the deceased was an under privileged member of the society. The said observation is not based on any evidence produced in this case. It is evident from the perusal of record that the petitioner and the deceased being husband and wife were of the same social status and there is no material available on the record to support the abovementioned observation of the majority judgment.

8.Moreover, if for the sake of arguments, it is presumed that as Mst. Naeema Bibi (deceased), had filed a family suit against the petitioner, therefore, the petitioner had committed her murder but even then, the other attending circumstances, of the case cannot be ignored while determining the quantum of sentence. As mentioned earlier, the petitioner had two (02) children from Mst. Naeema Bibi (deceased), who disappeared from her house while leaving the responsibility of her children to others. The real mother of the deceased namely Mst. Bushra Iftikhar (PW-2), had herself lodged an FIR regarding the abduction of Mst. Naeema Bibi (deceased), against one Altaf Rabbani. According to the prosecution case, Mst. Naeema Bibi (deceased), thereafter filed a suit for dissolution of marriage against the petitioner and started living in Daral Aman. It is a common observation that under the above circumstances, the petitioner must be facing different remarks of the society and undergoing the mental torture. We cannot ignore the hard realities of our society while deciding the question of quantum of sentence awarded to the petitioner. When the family life of the petitioner, as well as, the life of his children was destroyed then he must have lost his senses and self-control. The petitioner was a human being and not a machine. Under the circumstances, if the above motive of the prosecution is presumed to be correct (though not proved), even then the circumstances of the case do not justify the sentence of death awarded to the petitioner. It is true that the above circumstances also do not justify the act of the petitioner but I am not acquitting the accused from the charge. Life imprisonment is also a legal punishment for the offence under section 302(b), P.P.C. and in my humble view under the above circumstances, the sentence of life imprisonment shall meet the ends of justice.

9.In the light of all the aforementioned mitigating factors, I convert this petition into an appeal and partly allow to the extent that Maaf Ali (petitioner), is acquitted of the charge under section 7(a) of the Anti-Terrorism Act, 1997, whereas the conviction of the petitioner/ appellant under section 302(b), P.P.C., awarded by the learned trial Court and upheld by the learned High Court is maintained, however, his sentence is altered from death to imprisonment for life. The direction regarding the payment of compensation and sentence in default thereof is maintained and upheld.

MH/M-111/SC Order accordingly.

1 Ghulam Hussain and others v. The State (PLD 2020 SC 61).