Asif Saeed Khan Khosa, J.--Muhammad Shafique appellant was convicted for an offence under Section 302(b), PPC vide judgment dated 15.9.1998 handed down by the learned Additional Sessions Judge, Lahore and was sentenced to death as Ta'zir and was ordered to pay a sum of Rs, 20,000/- to the heirs of Abdul Jabbar alias Pappu deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for two months. Through the same judgment the appellant's mother and co-accused namely Mst.
Siddiqan Bibi was acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No, 901 of 1998 and Muhammad Iqbal complainant has preferred Criminal Revision No, 261 of 1999 before this Court seeking enhancement of the amount of compensation payable by the appellant. We have heard both these matters alongwith Murder Reference No, 214 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the FIR was that Muhammad Iqbal complainant was a resident of House No, 734/E, Mohallah Baba Bhola Pir, Village Amar Sidhu, Lahore and had two brothers. The elder brother of the complainant was employed in the Packages Factory and the complainant and his younger brother namely Abdul Jabbar alias Pappu were running a shop of milk and sweet-meet in Madina Chowk, Lahore. About one and a half months prior to the present occurrence the complainant's younger brother namely Abdul Jabbar had quarreled with Muhammad Shafique appellant but the matter was patched up through the intervention of the local respectables. However, the appellant had nourished a grudge in that regard and despite the matter having already been patched up the appellant used to stare at Abdul Jabbar whenever the appellant used to pass in front of the shop of the complainant and Abdul Jabbar. The complainant had complained against that conduct of the appellant before the members of the appellant's family on many occasions but the appellant did not desist. At about 03.30 p.m. on 10.5.1996 the complainant and his brother namely Abdul Jabbar were present at their shop alongwith their servant namely Akbar Ali and two others namely Sheikh Nazir Ahmad and Tahir Naeem when the appellant and his mother namely Mst. Siddiqan Bibi came to the said shop and Mst. Siddiqan Bibi raised a lalkara investigating the appellant not to spare Abdul Jabbar alive because one and a half months ago he had insulted the appellant. Thereafter, the appellant took out a pistol .30 bore from the fold of his trousers and fired two successive shots at Abdul Jabbar hitting him on the left side of his chest. After receipt of his injuries Abdul Jabbar fell down and the appellant and his mother decamped from the spot. Upon learning the reports of the fires and the ensuing noise created during the incident many residents of the locality reached the place of occurrence who then transported Abdul Jabbar to the hospital in an injured condition but he succumbed to his injuries at the hospital. The said incident had been witnessed by the complainant and Nazir Ahmad, Tahir Naeem and Akbar Ali PWs. Muhammad Iqbal complainant made a statement (Exh- PB) before Atif Hayat, Inspector/SHO (PW13) in respect of the said incident at Qainchi Stop and on the basis of that statement formal FIR No, 164 was registered at Police Station Factory Area, Lahore on the same evening at 08.30 p.m. for an offence under Section 302, PPC read with section 34, PPC.
3. The investigation of this case was conducted by Atif Hayat, Inspector/SHO (PW13) and during his investigation he got the dead-body subjected to post-mortem examination, arrested the appellant, recovered a pistol .30 bore from the appellant's possession and then, after completing all the necessary formalities, prepared a challan which was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with one head under Sections 302/34, PPC against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced thirteen witnesses in support of . its case against the appellant and his co-accused. Muhammad Iqbal complainant (PW4), Tahir Naeem (PW5) and Nazir Ahmad (PW6) furnished the ocular account of the incident in question and also deposed about the motive. Muhammad Bashir (PW7) stated about the recovery of a pistol from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Aamer Mirza (PW9). Atif Hayat, Inspector/SHO (PW13) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under Section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. In his statement the appellant admitted the earlier incident forming the motive, recovery of his licensed pistol by the Investigation Officer, presence of the eye-witnesses at the sence of the crime at the relevant time and the appellant's own presence and participation in the alleged occurrence. He however, maintained that as a matter of fact it was the complainant party which had aggressed against them and had inflicted many injuries on his person whereafter he had fired at the complainant party in exercise of his right of private defence and a result of that firing Abdul Jabbar deceased lost his life. The appellant's mother and co-accused, however, maintained that she was not present at the spot at the relevant time and that she had been falsely implicated in this case. The appellant and his co-accused did not opt to make statements on oath under Section 340(2), Cr.P.C. and they also did not produce any witness in their defence. However, the learned trial Court recorded the statements of two Courts Witnesses namely Dr. Asif Nazir Qureshi (CW1) and Dr. Syed Zulqarnain (CW2) who proved sustaining of eleven injuries by the appellant on his person around the same time when the occurrence of murder had taken place.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's mother and co- accused namely Mst. Siddiqan Bibi but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and the plea of exercise of right of private defence taken by the appellant merits acceptance by this Court.
As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and also that the plea of exercise of right of private defence taken by the appellant before the learned trial Court was nothing but hollow. They have further maintained that the prosecution had successfully established that the injuries sustained by the appellant had been received by him after the murder of Abdul Jabbar committed by the appellant and the said injuries had been caused to him by a mob of the local inhabitants who were infuriated and enraged by the dastardly murder of an innocent person committed by the appellant. They have, therefore, maintained that the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties at some length and going through the entire record of this case with their assistance it has been observed by us that the presence of Muhammad Iqbal complainant (PW4), Tahir Naeem (PW 5) and Nazir Ahmad (PW6) at the scene of the crime at the relevant time had been admitted and accepted by the appellant in his statement recorded under Section 342, Cr.P.C. The said eye-witnesses had made consistent statements before the learned trial Court attributing effective firing at Abdul Jabbar deceased to none-other than the present appellant. It is true that it had been maintained by the complainant in the FIR that only two shots had been fired by the appellant at the deceased but during the trial the complainant and the other two eye-witnesses had deposed that the appellant had fired four shots at the deceased out of which three had proved effective and one had missed the deceased.
However, as the appellant had accepted the presence of these eye-witnesses at the place of occurrence at the relevant time and as he had also admitted that he was the only person who had caused the death of Abdul Jabbar deceased through firing at him, therefore, the above mentioned contradiction regarding the number of shots fired by the appellant at the deceased was hardly irrelevant in the circumstances of this case. The statements made by these eyewitnesses before the learned trial Court had not only inspired the confidence of the learned trial Court but the same have also been found by us to be completely reliable regarding responsibility of the appellant in respect of causing the death of Abdul Jabbar deceased. The occurrence in this case had taken place during daylight and the FIR in respect of the same had been lodged with reasonable promptitude and the appellant had been specifically nominated therein as the only person responsible for firing at and killing the deceased. The eye-witnesses produced by the prosecution had received ample corroboration from the motive st up in the FIR which had been admitted by the appellant in his statement recorded under Section 342, Cr.P.C. and from recovery of a pistol .30 bore from the appellant's possession during the investigation of this case. The report of the Forensic Science Laboratory (Exh-PN) had confirmed the fact that all the four crime-empties recovered from the place of occurrence had matched with the pistol recovered from the appellant's possession. The ocular account had also received full support from the medical evidence as the same had confirmed the statements of the eye-witnesses regarding the date and time of the occurrence, the weapon used and the locale of the injuries. In these circumstances we have entertained no manner of doubt that the prosecution had succeeded in proving that it was the appellant and none else who was responsible for the death of Abdul Jabbar deceased.
10. In his statement recorded under Section 342, Cr.P.C. the appellant had admitted killing Abdul Jabbar deceased at the date, time and place alleged by the prosecution but he had maintained that it was the complainant party which had launched the initial aggression against him and had caused him many injuries on his person whereafter he had fired at the complainant party killing Abdul Jabbar deceased in exercise of his right of private defence. The sustaining of injuries by the appellant around the same time when Abdul Jabbar deceased and received his injuries had been established before the learned trial Court through the statements made by Dr. Asif Nazir Qureshi (CW1) and Dr. Syed Zulqarnain (CW2) and the same had also been conceded before the learned trial Court by Tahir Naeem (PW5) and Nazir Ahmad (PW6). It had, however, been maintained by Tahir Naeem (PW5) and Nazir Ahmad (PW6) that the injuries sustained by the appellant had been received by him not prior to the firing by the appellant upon the deceased but after the said firing when a mob of the local inhabitants had got hold of the appellant and in its rage and fury the said mob had given a sound thrashing to the appellant on account of his fatally wounding the innocent deceased. In this view of the matter the crucial question that has emerged before us is as to when did the appellant sustain his injuries. In this regard we have observed that the appellant had sustained as many as eleven injuries on his person and seven of such injuries were on his head, one on his nose, another on his mouth breacking his teeth and some others on other parts of his body. The statement made by Atif Hayat, Insepctor/SHO (PW13), the Investigating Officer, before the learned trial Court shows that he had reached the spot soon after the occurrence and had found the appellant lying in an injured condition in a semi-conscious state in front of his own house and the pistol with which he had fired at Abdul Jabbar deceased was not with him at that time. It was well nigh impossible for the appellant to have received all those ,injuries first and then to have taken out his pistol from the fold of his trousers and to have fired at the deceased not once but four times. It was, therefore, quite likely that he had received his injuries after the main occurrence at a time when he had already returned to his house situated nearby and had already safely tucked away his pistol in a. box from where it had subsequently been recovered by the Investigating Officer. After all the mob could not have dared to harm him if he was still carrying his pistol with him. We have also appreciated that the appellant was already carrying a pistol with him before his firing at the deceased and in ordinary course of things he would not have allowed the complainant party to cause those many injuries to him. These factors go a long way in pointing towards the only likelihood and probability that the prosecution's version that the appellant had sustained his injuries at the hands of a mob after the main occurrence is correct and the converse of the same does not fit into the normal course of human conduct.
11. Adverting now to some legal aspects of the defence plea put forward by the appellant we may observe that according to the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 when an accused person advances a plea based upon any general or special exception contained in the Pakistan Penal Code the burden of proving the existence of circumstances bringing the case within such general or special exception is upon him and the Court is to presume the absence of such circumstances. In the present case the appellant had utterly failed to produce any evidence whatsoever on his own which could independently support his plea regarding exercise of right of private defence by him. He had opted not to make any statement on oath under Section 340(2), Cr.P.C. and had produced no witness in his defence. By virtue of the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 this Court is to presume the absence of circumstances supporting the appellant's plea of self-defence and the appellant had made no effort before the learned trial Court to displace such a legal presumption. Apart from that the right of private defence of the body contemplated by the provisions of Section 100, PPC extends to the voluntary causing of death or of any other harm "to the assailant" but the appellant had never established before the learned trial Court that it was Abdul Jabbar deceased who had launched an assault upon the appellant so that he could be termed as "the assailant. The document available on the record as Exh-DC shows that the doctor medically examining the appellant for his injuries had recorded the following observations in the Medico-legal Certificate issued by him in respect of the appellant's injuries: "H/o being beaten by friends and relatives of a deceased who was perished by him."
This clearly shows that before the said doctor the appellant had maintained that he was beaten up by the friends and relatives of Abdul Jabbar deceased who had been murdered by the appellant and the appellant had never claimed that even Abdul Jabbar deceased had caused any injury to him. Even in his statement recorded under Section 342, Cr.P.C. the appellant had never specifically stated that Abdul Jabbar deceased had also attacked him or had caused any injury to him. In that statement the appellant had only maintained in generalized terms that the complainant party had attacked him and had caused injuries to him. The statement made by Atif Hayat, Inspector/SHO (PW13), the Investigation Officer, before the learned trial Court also shows that even during the investigation of this case the appellant had maintained that the complainant party had mounted an assault upon the appellant and he had never specified that Abdul Jabbar deceased had also assaulted him or had caused any injury to him. In this view of the evidence available on the record the appellant had completely failed to establish that Abdul Jabbar deceased was "the assailant" so as to extend the right of private defence to the appellant to cause the death of Abdul Jabbar deceased within the purview of Section 100, PPC. Even the provisions of Section 106, PPC did not come into play in the case in hand as the appellant had never established before the learned trial Court through any evidence whatsoever that during the main occurrence he was so situated that he could not effectively exercise his right of private defence without risk of harm to Abdul Jabbar deceased who was otherwise innocently present at his own ship at the relevant time. For all these reasons even if the claim of the appellant regarding his sustaining of injuries at the hands of the complainant party prior to his firing at Abdul Jabbar deceased were to be accepted as correct for the sake of argument still the provisions of Sections 100 and 106, PPC did not extend any right of private defence to the appellant vis-a-vis causing the death of Abdul Jabbar deceased.
12. For what has been discussed above a conclusion is irresistible that the learned trial Court was justified in convicting the appellant for an offence under Section 302(b), PPC and the conviction so recorded by the learned trial Court has appeared to us to be unassailable keeping in view the evidence available on the record.
13. The sentence passed by the learned trial Court against the appellant has also received our anxious consideration. In this context we have noticed that both the 'parties to this case had admitted in so many words that the earlier incident forming the motive was no longer alive issue between the parties as the matter had already been patched up. According to the prosecution's own case the mere staring of the appellant towards Abdul Jabbar deceased while passing in front of his shop was repeatedly taken serious exception to by the complainant party and the complainant party had repeatedly gone to the house of the appellant to lodge a protest with the members of his family in that regard. Such lodging of protests could surely not be a friendly or an amicable affair. The alleged involvement of the appellant's mother in the main occurrence also triggers an impression that the protests lodged by the complainant party with the members of the appellant's family must have created bitterness, resentment and acrimony between the parties prompting the appellant's mother to accompany him to the shop of the complainant at the time of the present occurrence. The alleged presence of the appellant's mother at the scene of the crime also hints at a real possibility that some insults might have been hurled by the complainant party upon the appellant's mother prompting her to issue a command to the appellant to fire at the deceased who was the source of original bitterness between the parties. The appellant happens to be a young man of twenty-five years of age and his mother's wish was her command for him.
Apart from that while going through the evidence available on the record we have entertained an impression that even the prosecution had not made a clean breast of itself and had not brought the whole truth on the record. In this state of affairs we are constrained to conclude that the immediate cause of the murder of Abdul Jabbar deceased had remained shrouded in mystery. We have further observed that soon after the main occurrence the appellant had been given a sound thrashing by the friends and relatives of Adbul Jabbar deceased and by- the other inhabitants of the relevant locality and the said thrashing was so severe that the appellant had not only received as many as eleven injuries on his person, most of them on vital parts of his body, but he had also become semi-conscious and had been got admitted to a hospital by the local police itself. It has thus, appeared to us that some sort of trine retribution had been dished out to the appellant soon after the occurrence and some rudimentary and primitive justice was administered to him without loss of any time. In that backdrop, in the interests of safe administration of criminal justice, we have decided to err on the side of prosecution and to exercise our discretion in the matter of sentence in favour of reducing the sentence of death passed by the learned trial Court against the appellant to imprisonment for life.
14. For the reasons recorded above Criminal Appeal No, 901 of 1998 filed by Muhammad Shafique appellant before this Court is dismissed to the extent of his conviction recorded by the learned trial Court for an offence under Section 302(b), PPC but the same is partly allowed to the extent of his sentence which is reduced to imprisonment for life. The benefit under Section 382-B, Cr.P.C. shall be extended to the appellant. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of Abdul Jabbar deceased and the sentence of imprisonment passed in default of such payment are, however, upheld and maintained. For the same reasons Criminal Revision No, 261 of 1999 preferred before this Court by Muhammad Iqbal complainant is dismissed.
15. Murder Reference No: 214 of 1999 is answered in the negative and the sentence of death passed by the learned trial Court against Muhammad Shafique appellant is not confirmed.