' This appeal is directed against the judgment dated 14-7-1999 passed by the learned Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Sessions Judge Mianwali, whereby having tried the appellant in the case registered vide No.106 dated 21-7- 1998 under section 302, P.P.C., Police Station Wan Bhachran, Mianwali, the appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a further direction to pay rupees one lac as compensation to the legal heirs of the deceased. In default whereof to further suffer R.I. For five years.
2. The prosecution story, as unfolded through F.I.R. (Exh.P.E.) registered on the statement of the complainant Muhammad Hayat, briefly stated is that on 21-7-1998 at about 10-30 a.m. Muhammad Sultan deceased and Sher Muhammad P.W. Reached at Bus Stop Shadia in, front of the shop of Muhammad Khan appellant while riding on two bicycles; that on seeing the deceased, the appellant emerged from his shop while armed with .30 bore pistol and raised Lalkara that Muhammad Sultan deceased would not go alive; that the appellant fired with his pistol at the deceased on the right arm; that on receipt of his fire shot Muhammad Sultan deceased fell down; that the accused fired second shot which hit the deceased near his left ear and that the deceased breathed his last at the spot. The motive for the occurrence was that many years ago Muhammad Sultan deceased enticed away Mst. Sakeena Bibi, first cousin of Muhammad Khan accused.
3. After having completed usual formalities and investigation of the case, the police submitted challan against the accused before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 11 witnesses.
4. The accused; when examined under section 342, Cr.P.C. Denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.
' Learned counsel for the appellant, in support of this appeal, submits that the eye-witnesses had come along with the deceased in order to attack the appellant who in the right of self-defence and under grave and sudden provocation had committed the murder of the deceased; that the recovery has been planted on the appellant; that in fact the deceased had abducted the first cousin of the appellant about nineteen years back and on the day of occurrence, has come there, taunted the appellant that he had abducted her sister and was going to fire at him when in the exercise of right of self-defence and loosing control had fired at the deceased and that at the most the offence, if any, was covered under section 302(c) P.P.C. And not under section 302(b), P.P.C. As held by the learned trial Court. While concluding his submissions, learned counsel, coupled with the above submissions, contends that the sentence, which the appellant has already served, be treated as undergone as it would meet ends of justice. He has referred to Exh.D.A. (an F.I.R.) in this regard in which Mst. Sakina Bibi, the wife of the deceased, was attacked and the motive was that she was abducted by Sultan deceased to contend that no case is made out against the appellant.
5. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that it was not a case of grave and sudden provocation or right of self- defence because a nineteen years old occurrence cannot be made basis for the same; that it was premeditated murder; that the appellant fired two successive shots which proved fatal and resulted into the death of the deceased; that the learned trial Court has already taken a lenient view although it was a case of capital punishment; that the impugned judgment does not call for any interference by this Court and that after having dismissed appeal of the appellant, his conviction and sentence be maintained.
6. I have heard learned counsel for the parties, have gone through the record and have also given anxious consideration to their submissions made at the bar. Occurrence in this case had taken place on 21-7-1998 at 10-30 a.m. In the broad-daylight. The place of occurrence is not only a Bazar but also a Bus Stop i.e. It is commonly used by the public at large which is surrounded by shops.
According to the learned counsel for the appellant it was a case of two versions. This Court would like to reproduce answer of the appellant to Question No.7 which reads as under:-- "The real facts are that Mst. Sakeena . Was abducted by Muhammad Sultan deceased on 21-6- 1984. On account of this motive my cousins Muhammad Amir and other attacked Mst. Sakeena and injured her and F.I.R. No.106 dated 21-6-1984 was lodged. In that case the motive was clearly given that Mst. Sakeena had been attacked because the deceased had abducted her. Exh.D.A. Is attested copy of the F.I.R. Mst. Sakeena was never married to Sultan in accordance with Sharia. I tender in evidence certificate of Secretary Union Council in this respect which is Mark-A.
Muhammad Sultan, deceased was married to Mst. Khadeja Bibi and the marriage was consummated. She was shown the wife of the deceased in the papers of the Military Department till his death and Mst. Sakeena was not entered as the wife of the deceased till his death. I tender in evidence the Parat Nikah Exh.D.B. Of Mst. Khadeeja with the deceased.
' I was employed in the Army and came to village Shadia six years before this occurrence and was running a shop at bus stop Shadia. One year before this occurrence the deceased started taunting me by saying that he had enticed away his first cousin. On 21-7-1998 at 8.00 a.m. Muhammad Sultan deceased reached my shop and proclaimed loudly that he had come with my sister and that, I should see her. Muhammad Sultan was armed with a pistol also. He intended to fire and in self-defence as well as under gave and sudden provocation, I picked up my licensed pistol and fired at the deceased when he was standing on the ground. The story that he was on the bicycle is absolutely fabricated one. These versions were advanced before the Investigating Officer. The complainant party in order to resile from the motive started setting up a different motive and made an application to produce the Nikah Nama and Form-B of Registration Office, Mianwali which shows that the complainant party tried to fabricated some Nikah of Mst. Sakeena with Muhammad Sultan deceased which they wanted to produce in Court and the Hon'ble Court after declining that application summoned Mst. Sakeena as a Court witness and she has given a wrong motive to screen the real facts of the case. I am a law abiding citizen and due to the taunting of the deceased and the instigation, I was forced under grave and sudden provocation to react. I am innocent. The witness being close relatives have falsely deposed against me".
8. A bare perusal of the above statement of the appellant recorded under section 342, Cr.P.C.
Shows that the version put forth by the appellant was not a plausible one. Under Article 121 of the Qanun-eShahadat, 1984 when an accused takes a specific plea to bring his case under section 302(c), P.P.C. Then the onus lies on him to prove the same but the appellant has failed to discharge the said onus. Article 121 ibid reads as under:-- "121. Burden of proving that case of accused comes within exception.----When a person is accused of any offence the burden of proving the existence of circumstances brining the case within any of the General Exceptions in the Pakistan Penal Code Act (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
9. It is also interesting to note that the appellant made in application before the learned trial Court under section 540, Cr.P.C. To examine Mst. Sakeena Bibi, is first cousin, and wife of the deceased, she was examined as C.W.1 and stated that her father had died, she married to Sultan of her own free-will and volition and too with the consent of her mother who was still alive. She further stated that on the day of occurrence she had seven children from the said wedlock, was pregnant and gave a birth to eighth child. It means she supported the prosecution case and her statement was of no avail to the appellant.
It was not a case where an accused had committed a murder of the deceased after having seen his sister, mother or wife in the compromising position in his own house and after having lost his self-control, he had committed the murder of the deceased. The said ingredients are lacking in the present case. The occurrence of abduction, if any, took place nineteen years back from the day of occurrence. Such an old occurrence cannot be made basis to take revenge as has happened in this case. This is in line with the law laid down by the august Supreme Court of Pakistan in Zulfiqar alias Bhuttoo v. The State (1995 SCM R 1668) wherein, at page 656, it was observed as under:- The parties were living in proximity but nothing happened during past 15/16 years. Therefore, there must have been some other reasons which has not been disclosed by either side particularly the prosecution. Furthermore, the P. Ws. Had witnessed the incident from some distance but what happened immediately before the appellant attacked, is not clear. No Lalkara has been alleged to the appellant to show that what was the motive for which he committed the murder. In these circumstances, we partly allow the appeal, convert the death sentence into life imprisonment with benefit of section 382-B, Cr.P.0
10. The contention of the learned counsel for the appellant that there was no Nikah Nama of Mst.
Sakeena and that she was leading an immoral life with Sultan deceased has no force because, on the one hand, Mst. Sakina, while appearing before Court as C.W.1, stated that her father had died, she married to Sultan of her own free-will and volition and too with the consent of her mother who was still alive. She further stated that on the day of occurrence she had seven children from the said wedlock, was pregnant and gave a birth to eighth child. This means that the marriage of Mst.
Sakina took place only with her consent but also with the consent of her mother as her father had already died. Further more that the said marriage was acknowledged by both the spouses.
Although she was summoned on the application of the appellant yet she did not support the version of the appellant before the learned trial Court. But nothing, in rebuttal, was produced by the defence. Even otherwise reference to subsections (a), (b) and (c) to section 268 of the Mulla's Mahomedan Law, in this regard, would be a sufficient answer to this contention which read as under:-- "268. Presumption of Marriage.---Marriage will be presumed, in the absence of direct proof, from--
(a) prolonged and continual cohabitation as husband and wife; or
(b) the fact of acknowledgement by the man of the paternity of the child to the woman, provided all the conditions of the valid acknowledgement mentioned in section 344 below are fulfilled; or
(c) the fact of the acknowledgement by the man of the woman as his wife". (emphasis supplied).
11.There is yet another aspect of the case. The appellant did not fire only one shot but fired two successive shots and the injuries received by the deceased, according to the opinion of the doctor, were sufficient to cause death in the ordinary course of nature. I note that the learned trial Court has already taken a lenient view while awarding life imprisonment and not death sentence as required under section 302(b), P.P.C. Since the matter of enhancement of sentence is not before me, therefore, I, would not like to comment any further on this point. Sufficient it to say, it was a broad-daylight occurrence, it is a case of single accused and more so that it is not a case of denial simplicitor. Furthermore, that it is also neither a case of right of self-defence nor grave and sudden provocation. The people cannot be allowed to take lives of the innocent people after having taken the law into their own hands on the basis of false pleas either of grave and sudden provocation or of right of self-defence.
13: After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that prosecution has proved its case against the appellant. Resultantly, I find no merit in this appeal, which is IG hereby dismissed.