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Present: Manzoor Ahmad Malik, Saradar Tariq Masood and Syed Mansoor Ali
Shah, JJ
ALI AHMAD and another---Appellant/Petitioner
Versus
The STATE and others---Respondents
Criminal Appeal No.154-L of 2013 and Criminal Petition No.366-L of 2013,
decided on 14th March, 2019.
(On appeal from the judgment of Lahore High Court, Lahore dated 26-2-2013,
passed in Crl. A. No.1053 of 2007).
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), S.342---Qanun-e-
Shahadat (10 of 1984), Art.121---Qatl-i-amd---Re-appraisal of evidence---Defence
plea of sudden and grave provocation---Admission or confession by accused in his
statement under S. 342, Cr.P.C, in circumstances where prosecution on basis of its
own evidence had failed to prove its case---Whether such statement of accused
could be relied upon for convicting the accused---Held, that prosecution on basis of
its evidence had failed to prove its case beyond reasonable doubt as presence of
eye-witnesses at scene of occurrence was doubtful and contradictions were found
between their statements on material aspects---However, the accused had admitted
in his statement under S.342, Cr.P.C. that he killed his sister and her paramour
(deceased) under grave and sudden provocation when he saw them committing
zina---Such statement of the accused made under S.342, Cr.P.C was to be accepted
in its entirety without requiring the proof under Art.121 of Qanun-e-Shahadat,
1984---Said statement, when taken as a whole, established sudden and grave
provocation, and it was not improbable or unbelievable, nor was it inconsistent
with the overall facts and circumstances of the case; therefore, it could safely be
relied and acted upon (for convicting the accused)---Case of accused to the extent
of deceased paramour fell within the scope of S.302(c), P.P.C, instead of S.302(b),
P.P.C and his conviction was modified as such with a sentence of 15 years rigorous
imprisonment, whereas his conviction to the extent of murder of his sister had
already been set aside in lieu of a compromise with the legal heirs---Order
accordingly.
(b) Criminal trial---
----Prosecution---Burden of proof---Scope---Burden, in a criminal case, to prove
the guilt of the accused was always on the prosecution---Court, in the first instance,
was to discuss and assess the prosecution evidence, in order to arrive at the
conclusion as to whether or not the prosecution had succeeded in proving the
charge against the accused on the basis of its evidence.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 121---Criminal trial---Defence plea---Shifting of burden from prosecution
to the accused---Scope---Burden shifted upon the accused under Art.121 of the

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Qanun-e-Shahadat, 1984 to prove his defence plea, only when a prima facie case
was made out against him by the prosecution on the basis of its evidence---If the
prosecution failed to prove its case against the accused, the question of shifting of
burden on the accused did not arise.
(d) Criminal trial---
----Defence plea---Examination of such plea by the court---Scope---Burden of
proof---Scope---In a case where the accused had not taken any specific plea (e.g.
self defence, grave and sudden provocation etc.) or had not produced any evidence
in his defence, the court was to decide the question of success or failure of the
prosecution in proving the charge against the accused on the basis of the
prosecution evidence alone---Where the accused had taken a specific plea or had
produced evidence in his defence, then the court was to appraise the prosecution
case and the defence version in juxtaposition, in order to arrive at a just conclusion-
--Even in such situation the burden remained on the prosecution to prove the
necessary ingredients of the offence charged against the accused, and it did not shift
upon the accused merely by taking a defence plea or producing evidence in his
defence.
(e) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Defence plea of sudden and grave provocation---Court
was not to examine such defence plea in isolation from the prosecution evidence---
Approach adopted by court of not appraising the prosecution evidence at all and
convicting an accused, under S. 302(b), P.P.C., on the basis of its finding that he
had failed to establish his defence plea of grave and sudden provocation was
contrary to the law declared by the Supreme Court in the cases of Wali Muhammad
v. State 1969 SCMR 612 and Ashiq Hussain v. State 1993 SCMR 417---Accused
could not be convicted on the ground that his defence plea appeared unconvincing--
-Prosecution was duty bound to prove its case against the accused beyond
reasonable doubt on the basis of its own evidence and was not absolved of this duty
even if the accused had taken a defence plea.
Wali Muhammad v. State 1969 SCMR 612 and Ashiq Hussain v. State 1993 SCMR
417 ref.
Feroze v. State 2008 SCMR 696 distinguished.
(f) Penal Code (XLV of 1860)---
----S. 302 ---Qatl-i-amd---Defence plea---'Grave and sudden provocation' and
'honour killing'---Distinction---In case of honour killing the act of murder was well
thought out, calculated and pre-mediated, while in case of grave and sudden
provocation the act was committed on the spur of the moment without any pre-

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planning or deliberation---Family honour may be at the root of both the acts, still
there was a difference between the two.
Muhammad Qasim v. State PLD 2018 SC 840; Muhammad Ameer v. State PLD
2006 SC 283; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 and Naseer
Hussain v. Nawaz 1994 SCMR 1504 ref.
(g) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Defence plea---'Grave and sudden provocation'---
Meaning and scope.
Expression "grave and sudden provocation" was used by the Legislature in
Exception-1 to the erstwhile section 300 of P.P.C. 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 consisted mainly of three elements:
(i) the act of provocation, (ii) the loss of self-control, and (iii) the
retaliation/reaction proportionate to the provocation. The relationship of these
elements to each other, particularly in point of time, was of the foremost
importance to determine whether there was time for passion to cool and reason to
resume.
Ali Muhammad v. Ali Ali Muhammad PLD 1996 SC 274 ref.
Doctrine relating to provocation depended on the fact that it causes, or may
cause, a sudden and temporary loss of self-control,whereby malice which was the
formation of an intention to kill or to inflict grievous bodily harm, was
negatived.The proportionality of the reaction to the provocation was tested on the
touchstone of the reaction expected from a reasonable person. What a reasonable
man would do in certain circumstances depended upon various factors including the
customs, traditions, social and cultural values, and way of life of the society to
which he belonged. No abstract standard of reasonableness could be laid down, in
this regard.
Holmes v. Director of Public Prosecutions (1946) AC 588 and K.M. Nanavati v.
State of Maharashtra AIR 1962 SC 605 ref.
(h) Criminal Procedure Code (V of 1898)---
----S. 342---Power of Court to examine the accused---Scope and purpose.
Primary purpose of section 342, Cr.P.C. was to enable the accused to know and
to explain and respond to the evidence brought against him by the prosecution. It
was 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 was an
ignorant person who could not be expected to know or understand what particular
parts of the evidence were or were likely to be considered by the Court to be
against him. The purpose was to establish a direct dialogue between the Court and

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the accused and to put every important incriminating piece of evidence to the
accused and grant him an opportunity to answer and explain.
Tani v. Emperor 20 Cr.LJ 12 (Nag); Md Illias Mistri v. The King (1949) ILR 1 Cal
43; Abdul Wahab v. Crown PLD 1955 FC 88 at p.90; Santan Naskar v. State of
West Bengal AIR 2010 SC 3570 ref.
(i) Criminal Procedure Code (V of 1898)---
----S. 342---Admission or confession by accused in his statement under S.342,
Cr.P.C.---Probative value---Admission or confession which was improbable or
unbelievable, or was not consistent with the overall facts and circumstances of a
case may not have any probative value and thus could not be relied upon by the
court for reaching to a conclusion.
Manjeet Singh v. State PLD 2006 SC 30; Ghulam Abuzar v. State 1991 PCr.LJ 697
and Nisar Ahmad v. State 1989 PCr.LJ 1445 ref.
(j) Criminal Procedure Code (V of 1898)---
----S. 342---Prosecution failing to prove its case---Admission or confession by
accused in his statement under S.342, Cr.P.C.---Evidentiary value---Where
prosecution had failed to prove its case, the statement of accused under S.342,
Cr.P.C., could be taken into consideration by the court (for convicting him) but in
its entirety---Reliance could not be placed on only inculpatory part of such
statement---Principles.
If the prosecution failed to prove its case against the accused, the court could
take into consideration the statement of the accused under section 342, Cr.P.C.
whether in favour of or against the accused; but it must take into consideration such
statement in its entirety and could not select and place reliance on the inculpatory
part of the statement only. However where there was prosecution evidence which
disproved the exculpatory part of the statement of the accused under section 342,
Cr.P.C., then reliance could be placed on the inculpatory part of the statement by
excluding the exculpatory part, but not otherwise. In other words, if the prosecution
had proved a case against the accused beyond reasonable doubt, the court may, if it
deemed expedient to get further support, take into consideration also the
inculpatory part of the statement of the accused under section 342, Cr.P.C., only if
the prosecution evidence negated the exculpatory part of the statement and it could
be safely severed from the inculpatory part but not otherwise. Even if this exercise
was not undertaken the conviction of the accused stood as the prosecution had
already proved its case against the accused beyond reasonable doubt, on the basis
of its evidence. The inculpatory part of the statement was not being considered to
fill up gaps in the case of the prosecution but simply to draw support in a case
already established by the prosecution and no more.
Rahim Bakhsh v. Crown PLD 1952 FC 1; Mehrban Shah v. State 1969 SCMR 839;
Najib Raza Rehmani v. State PLD 1978 SC 200; Hanumani Govind Nargundi v.
State of Madhya Pardesh AIR 1952 SC 343; Faiz v. State 1983 SCMR 76; Waris

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Khan v. Ishtiaq PLD 1986 SC 335 and Sultan Khan v. Sher Khan PLD 1991 SC 520
ref.
Once the prosecution evidence was disbelieved, rejected or excluded from
consideration, the facts explained by the accused in his statement under section
342, Cr.P.C. were to be accepted in their entirety without requiring their proof. The
court was then to examine the said facts to give due effect to the statement of the
accused, under the law, whether in favour of or against the accused. The object of
such examination was to determine whether or not the facts narrated by the accused
constituted an offence under the law or fit into any exception of the offence
provided under the law.
Jagdeo v. Emperor 38 IC 740; Bhola Nath v. Emperor AIR 1929 Allahabad 1; Gul
Mahomed v. Emperor AIR 1945 Sindh 42 and Muhammad Azam v. State 2009
SCMR 1232 ref.
(k) Penal Code (XLV of 1860)---
----S. 302(c)---Qatl-i-amd---Illicit sex with a female family member---Defence plea
of sudden and grave provocation---Scope---Supreme Court observed that our
culture and social values reflected in the jurisprudence developed so far was that an
act of illicit sex with a female family member of the offender was considered
sufficient to cause provocation so grave and sudden that it would deprive the
offender of the power of self-control.
Muhammad Qasim v. State PLD 2018 SC 840; Gul Nissa v. Muhammad Yousuf
PLD 2006 SC 556; Naseer Hussain v. Nawaz 1994 SCMR 1504 and Noor
Muhammad v. State 1993 SCMR 208 ref.
Muhammad Akram Qureshi, Advocate Supreme Court for Appellant.
Ch. Tahir Nasrullah, Advocate Supreme Court for Petitioner and for Respondent
No.2 (in Crl.A. No.154 of 2013).
Mazhar Sher Awan, Addl. P.G. for the State.
Supreme Court Research Centre for the Research Assistance.
Date of hearing: 14th March, 2019.
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, District Toba Tek
Singh for offences punishable under section 302 P.P.C. After regular trial, he was
convicted under section 302(c) P.P.C. 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), P.P.C. and sentenced him to

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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 a.m., 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 at the clinic, went out to drop Hassan
Iftikhar (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-witnesses, the complainant, Ali Ahmad (PW-11) and Hassan
Iftikhar (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 according to the
prosecution the complainant (PW-11) set out on his motorbike to drop Hassan
Iftikhar (PW-12) and Adeel Arif (brother of the deceased Raheel Arif) at their
respective homes. In the cross-examination the eye-witnesses (PW-11 and PW-12)
and Syed Kazim Hussin (PW-1), 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-PA) does not even show that the road to Samundari Road, Gulshan Colony
or Abdullahpur (areas where residences of PW-12, Adeel Arif and PW-11 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

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(PW-11 and 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 the distance to be 297 feet. This
inconsistency between the statement 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 eye-witnesses, 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
concluded 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-Shahadat 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) P.P.C. for the offence 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.1 Burden is always on the prosecution to prove
its case and it is only when a prima facie 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 P.P.C. or
in any law defining the offence charged.2. 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.3
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

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evidence was incorrect. The High Court did not appraise the prosecution evidence
at all and convicted the appellant, under section 302(b), P.P.C., 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 conclusion 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 Muhammad4 and Ashiq Hussain.5 In the
cited cases this Court authoritatively declared that the accused cannot be convicted
on the ground that his defense plea appears unconvincing. The prosecution 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 Feroze6 is misplaced; because in Feroze the
learned trial court convicted the accused, 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
refusing 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 Mehrban,7 Najib Raza,8 Waris Khan,9 Muhammad Aksar,10 Faiz11 and Sultan12
may be referred in this regard. These cases do not discuss Article 121, QSO13 as
the accused is not required to prove his plea of self-defense, on failure of the
prosecution to prove its case.
Honour killing vis-a-vis grave and sudden provocation

12. The High Court has also relied on Ameer14, 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 deliberation15. 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

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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-1 to the erstwhile section 300 of P.P.C. 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:
(1) 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 determine
whether there was time for passion to cool and reason to resume.16 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.17. 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 in
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.18 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
murdered 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 son of Khalil Ahmed caste Butt aged 30 years
businessman resident of Mehdi Mohallah, Gojra under section 342, Cr.P.C
without oath.
"
Q.14 Have you any thing 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 Ijaz Gill Nazim U.C., the real brother of

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Nawaz Gill and Raheel Gill, 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 my home. When I reached my house towards St.No.4, gate was
lying open. Thereafter, I went inside my office and found my sister Rabia
Khalil and Raheel Arif both committing zina with each other. I was holding
my licensed pistol, I lost senses and self control and in the above said
circumstances under grave 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 fires with pistol which landed on 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 the 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 Ijaz 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 I.O. on
24.4.2006, I 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 evidence for or against him in any other inquiry

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into, or trial for, any other offence 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.19 Muhammed Sharif, J. in Abdul Wahab20 eloquently
explained the object of section 342, Cr.P.C in the following words: "It should not ...
be overlooked that the real object of section 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 QSO21 (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 Bakhsh22, regarding
statement under section 342, Cr.P.C. wrote: "I know of no law which says that an
admission made by 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.23 However, an admission or confession
which is improbable or unbelievable, or is not consistent with the overall facts and

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circumstances of a case may not have any probative value and thus cannot be relied
upon by the court for reaching to a conclusion.24
Conviction on the basis of the statement of the accused under section 342,
Cr.P.C.
18. In Abdur Rehman,25 Amin,26 Mehrban,27 Maqsood,28 and Sattar,29 the High
Court disbelieved the prosecution evidence but convicted the accused persons for
the offence punishable under section 302(c), P.P.C. or the erstwhile section 304-I,
P.P.C. 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. Hanif30 and Ali Muhammad31 may also be referred in 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), P.P.C., 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), P.P.C., 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,32 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, P.P.C. to 304-II,
P.P.C., as both the Courts below had disbelieved the ocular testimony of the
prosecution witnesses. This Court, in Gul Nissa,33 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.C have evolved for over a
period of the last about two hundred years beginning with the case of Sarah Jones34
(decided in 1827) and taking shape in Balmakund35 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, under
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 Bakhsh36 that if the conviction of an accused is to be based solely on his

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statement in Court then that statement should be taken into consideration in its
entirety. In Mehrban37 S.A. Rahman 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 Raza38 this Court agreed with Mahajan J.
who observed that "it is settled law that an admission made by a person whether
amounting to a confession or not cannot be split up and part of it used against
him.39" In Faiz,40 another five member 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"41, and cannot be rejected by
adopting a process of appraisement and analysis.42 In Sultan,43 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 be taken into consideration in toto (in its entirety) and the Court cannot
select a portion out of the statement that goes against the accused.
B. The inculpatory part of the statement of the accused cannot be used or construed
to fill up gaps in the case of the prosecution as the prosecution has to prove the case
on its own evidence.

21. Sultan44 went ahead to add that if there is prosecution evidence which
disproves the exculpatory part of the statement of the accused under section 342,
Cr.P.C, then reliance can be placed on the inculpatory part of the statement by
excluding the exculpatory part, but not otherwise. In other words, if the prosecution
has proved a case against the accused beyond reasonable doubt, the court may, if it
deems expedient to get further support, take into consideration also the inculpatory
part of the statement of the accused under section 342, Cr.P.C., only if the
prosecution evidence negatives the exculpatory part of the statement and it can be
safely severed from the inculpatory part but not otherwise. It is underlined that
even if this exercise is not undertaken the conviction of the accused stands as the
prosecution has already proved its case against the accused beyond reasonable
doubt, on the basis of its evidence. The inculpatory part of the statement is not
being considered to fill up gaps in the case of the prosecution but simply to draw
support in a case already established by the prosecution and no more.
C. Where prosecution has failed and the statement of the accused under section
342, Cr.P.C. is accepted in entirety, the court is then to give due effect to the
statement of the accused, under the law, whether in favour of or against the
accused.
22. Next comes the question, how such a statement of the accused when
"accepted as a fact45" and taken in its entirety is to be given effect and acted upon,
once the prosecution has failed to make out a case? Once the prosecution evidence

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is disbelieved, rejected or excluded from consideration, and the facts explained by

the accused in his statement under section 342, Cr.P.C. are accepted entirely, the
court is then to examine the said facts to give due effect to the statement of the
accused, under the law, whether in favour of or against the accused.46 The object of
such examination is to determine whether or not the facts narrated by the accused
constitute an offence under the law or fit into any exception of the offence provided
under the law. In this respect, the observation of Sir Mukerji J., made in the case of
Bhola Nath47 is quoted to explain the purpose of this examination of the statement
of the accused. The learned Judge observed, at page 5:
"If on the whole of the statement of the accused, taken together, his guilt is
established, and his plea, say, of acting in self-defence or of the case falling
within any of the general or special exceptions (sic) is not made out on the
facts admitted, there cannot be any bar to a conviction, simply because the
prosecution evidence, by itself, would not have secured a conviction "
(emphasis supplied)
This legal examination was also aptly explained and applied by Lobo C.J. in Gul
Mahomed48. The learned Judge found that accepting the statement of the appellant
as true, the act of the appellant in killing his wife and another was under grave
provocation but it was not under sudden provocation. The facts narrated by the
appellant though were accepted but those were found not to fit in the legal
parameters of Exception-I to section 300, P.P.C. for making the case of the
appellant as one of grave and sudden provocation. Likewise, this Court, in
Muhammad Azam49, though admitted the statement under section 342, Cr.P.C. as a
whole, but found, even in those admitted facts, the accused to have exceeded in his
right of self-defence and convicted him accordingly. In Sattar referred above the
accused while explaining the circumstances in which he inflicted injuries to him,
claimed to have acted in the exercise of right of self-defence. But the High Court
though accepted his statement of facts in its entirety, but convicted him under
section 304-I, P.P.C. by treating his version not to fit in the legal requirement of the
valid exercise of right of self-defence as the accused as per his own version of facts
had chased the deceased in street who was attempting to escape from the place of
occurrence.
Summary of principles of law regarding Article 121, QSO and section 342 Cr. P. C.
23. We consider it appropriate to recapitulate and summarise key principles of
law discussed in this judgment, regarding Article 121, QSO and section 342,
Cr.P.C., for convenience, which are stated as under:
i. The burden, in a criminal case, to prove the guilt of the accused is always on
the prosecution. Therefore, the court, in the first instance, is to discuss and
assess the prosecution evidence, 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.
ii. In a case where the accused has not taken any specific plea (e.g. self defence,
grave and sudden provocation etc.) or has not produced any evidence in his

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defence, the court should decide the question of success or failure of the
prosecution in proving the charge against the accused on the basis of the
prosecution evidence alone.
iii. In a case where the accused has taken a specific plea or has produced
evidence in his defence, the court should appraise the prosecution case and
the defense version in juxtaposition, in order to arrive at a just conclusion.
Even in such situation the burden remains on the prosecution to prove the
necessary ingredients of the offence charged against the accused, and it does
not shift upon the accused merely by taking a defence plea or producing
evidence in his defence.
iv. The burden shifts upon the accused under Article 121 of the QSO to prove his
defense plea, only when a prima facie case is made out against him by the
prosecution on the basis of its evidence. If the prosecution fails to prove its
case against the accused, the question of shifting of burden on the accused
does not arise.
v. The primary purpose of section 342 Cr.P.C. is to enable the accused to know
and to explain and respond to the evidence brought against him by the
prosecution. A direct dialogue is established between the Court and the
accused by putting every important incriminating piece of evidence to the
accused and granting him an opportunity to answer and explain.
vi. If the prosecution fails to prove its case against the accused, the court can
take into consideration the statement of the accused under section 342
Cr.P.C. whether in favour of or against the accused; but it must take into
consideration that statement in its entirety and cannot select and place
reliance on the inculpatory part of the statement only.
vii. In the last mentioned circumstance, the facts narrated by the accused in his
statement under section 342 Cr.P.C. are to be accepted without requiring
their proof. The court, however, should examine the said facts in order to
give due effect to them under the law. The object of such examination is to
determine whether or not the facts narrated by the accused constitute an
offence under the law or fit into any exception of the offence provided under
the law.
viii. An admission or confession made in statement under section 342 Cr.P.C.,
which is improbable or unbelievable, or is not consistent with the overall
facts and circumstances of a case do not have any probative value and thus it
cannot be relied upon by the court for reaching a conclusion.
24. The above settled principles of law when applied to the present case, we find
that the prosecution has failed to prove the case against the appellant beyond
reasonable doubt, on the basis of its evidence. We, therefore, revert to the defense
plea and the statement of the appellant made under section 342, Cr.P.C., which is to
be accepted in its entirety without requiring the proof under Article 121, QSO. The
appellant, in his statement under section 342 Cr.P.C., has explained that he killed
his sister and her paramour on grave and sudden provocation as he saw them
committing zina when entered in his house at 03:00 am in the night, on his return

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from the hospital. His statement is not improbable or unbelievable, nor is it

inconsistent with the overall facts and circumstances of the case; therefore, it can
safely be relied and acted upon. Our culture and social values reflected in the
jurisprudence50 developed so far is that an act of illicit sex with a female family
member of the offender is considered sufficient to cause provocation so grave and
sudden that it would deprive the offender of the power of self-control. The
arguments on behalf of the complainant have been made only to convince this
Court to believe the prosecution story, though they could not succeed; and it has not
even been argued that the facts and circumstances narrated by the appellant under
which he committed the murder of Raheel Arif, if admitted to be correct, do not
constitute grave and sudden provocation. In the light of the scope and meaning of
grave and sudden provocation discussed in para 13 above, the statement of the
appellant when taken as a whole, establishes grave and sudden provocation. The
case of the appellant to the extent of murder of Raheel Arif, therefore, falls within
the scope of section 302(c) P.P.C; hence, his appeal is partly allowed to the extent
of the impugned judgment of the High Court. The judgment of the High Court
whereby the appellant was convicted under section 302(b) P.P.C. for the murder of
Raheel Arif is set aside, while that of the Trial Court convicting the appellant under
section 302(c) P.P.C. is restored. However, the sentence of the appellant is
modified. The appellant is sentenced to rigorous imprisonment for a period of 15
years, in the peculiar circumstances of the case. He is also directed to pay
compensation of Rs.100,000/- (one hundred thousand) to the legal heirs of the
deceased, in terms of section 544-A, Code of Criminal Procedure, and in default
whereof to undergo simple imprisonment for six months. Benefit of Section 382-B,
Code of Criminal Procedure is extended to the appellant. Consequently, criminal
petition for leave to appeal filed by the complainant for enhancement of the
sentence of the appellant from life imprisonment to death is dismissed for being
without merit and leave to appeal is refused.
25. Foregoing are the reasons for our short order of even date.
MWA/A-2/S Order accordingly.

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