1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,8/J of 2001 filed by Ghulam Ahmad, appellant, who was convicted and sentenced, vide judgment dated 29-7- 2000 by learned Sessions Judge, Okara as under: ' Death and to pay compensation of rupees one lac on two counts for committing the murder of Ali Akbar and Muhammad Hassan under section 302(b), P.P.C. In default of payment of compensation, the appellant was ordered to undergo S.I. For six months on two counts.
2. ' Murder Reference No,404 of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 8/9 a.m. On 3-8-1995 within the revenue estate of Mauza Tajumahar Dakhli, which is at a distance of 21 kilometers from Police Station Baseerpur, District Okara while the matter was reported to the police on the same day by Ali Anwar, complainant and the F.I.R., Exh.PB was recorded by Ahmad Yar Khan, S.I. At 10-15 a.m. (same day).
3. Briefly stated the facts of the case as contained in F.I.R. Exh.PB are that the land of Ghulam Ahmad (appellant) and that of the complainant was being irrigated from one Khal. On 2-8-1995, as Ghulam Ahmad had not got cleaned the Khal, Ali Akbar, brother of the complainant did not allow Ghulam Ahmad to take the water upon which an altercation took place between Ghulam Ahmad and Ali Akbar and Ghulam Ahmad was given slaps by Ali Akbar. At about 8/9 a.m. On 3-8- 1995, Ali Akbar and Muhammad Hassan, both brothers of the complainant were going to fields for foddering the cattle. The complainant along with Khadim son of Faiz was going behind them. When Ali Akbar and Muhammad Hassan reached near the cotton crop of Muhammad Tayyab, all of a sudden Ghulam Ahmad emerged, raised Lalkara for teaching a lesson for the insult shown to him on 2-8-1997 and simultaneously fired a shot which landed on left buttock and right elbow joint of Ali Akbar and he fell down. In that condition also, the accused made in discriminate firing upon the person of Ali Akbar and the injured succumbed to be injuries. Muhammad Hassan raised hue and cry but he too was fired at by the accused and the shots landed on the chest and different parts of his body as a result of whereof her also died.
4. Allah Yar, S.I. (P.W.11) visited the place of occurrence, examined the dead-bodies of the deceased, prepared inquest reports Exh.PL and Exh.PM, injury statements Exh.PM and Exh.PM/1; collected blood-stained earth from two places vide memos. Exh.PC and Exh.PD and also took into possession 7 empty cartridges of 7 MM rifle vide memo. Exh.PE. Ghulam Ahmad accused was arrested on 5-8- 1995 who while in police custody got recovered .222 rifle P.1 along with five live bullets which was taken into possession vide memo. Exh.PB. After completion of investigation, Ghulam Ahmad accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all out of whom Ali Anwar (P.W.1) and Muhammad Tayyab (P.W.2) were the eyewitnesses while the doctor who conducted post-mortem examination on the dead-bodies of the deceased was produced as P.W.8. Thereafter, the Public Prosecutor tendered in evidence reports of the Chemical Examiner (Exh.PO and Exh.PP) and also of the Forensic Science Laboratory (Exh.PQ). The accused in his statement under section 342, Cr.P.C. Pleaded exercise of right of self-defence and also tendered various documents in support of his plea. After conclusion of the trial, the accused was convicted under section 302(c), P.P.C. And sentenced to 10 years' R.I. On two counts as also to pay compensation to the tune of Rs,50,000 also on two counts. This was vide judgment dated 1-6-1998 rendered by learned Additional Sessions Judge, Depalpur.
6. Against the conviction and sentence recorded vide judgment dated 1-6-1998, the convict filed an Appeal bearing No,332 of 1998. Ali Anwar, complainant also filed Criminal Revision No,332 of 1998. Both the appeal as well as revision were decided together by a Division Bench of this Court vide judgment dated 29-3-2000 and the case was remitted back for re-trial.
3. ' After remand, the learned Sessions Judge held de novo trial and after conclusion thereof, convicted and sentenced the appellant as stated in para 1 of this judgment.
4. ' Learned counsel for the appellant submits that the conviction and sentence recorded vide the impugned judgment amounts to double jeopardy as the same is against the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 403, Cr.P.C. Elaborating her argument, learned counsel submits that appellant had been released from jail after serving his full term of sentence recorded by learned Additional Sessions Judge vide judgment dated 1-6-1998 and was taken into custody pursuant to the judgment passed in Criminal Appeal No,332 of 1998.
5. ' As to merits of the case, learned counsel submits that the appellant committed the murder of two deceased in exercise of right of self-defence and in fact the complainant party was- aggressor.
6. Further submits that dimension of injuries on the person of two deceased clearly shows that they were gunned down not by one assailant but by more than one person.
7. ' An oblique argument is also raised to the effect- that there is conflict between ocular account and the medical evidence though this no conflict is pointed out by the learned counsel.
8. ' Concluding her submission, learned counsel submits that if the submissions made by her do not find favour with the Court then it is not a case of capital punishment but there are extenuating circumstances such as, protracted trial for two times, expectancy of life, occurrence having taken place in the heat of passions as also at the spur of the moment. She relied on 2004 SCM R 810, 2003 P.Cr.L.J. 121 and 1331.
9. ' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it is a case of broad-daylight murder, promptly lodged F.I.R., and though the motive was with Ali Akbar, deceased but the appellant also done to death Muhammad Hassan the brother of Ali Akbar who raised hue and cry. Further submits that it is case of single accused so there is no question of substitution. So far as right of self-defence is concerned, the appellant has failed to prove the same beyond any shadow of doubt. In nutshell, all the three learned counsel appearing for the State as also for the complainant supports the impugned judgment of trial Court.
10. ' We have heard learned counsel for the parties at length and have gone through the record with their able assistance. This is second round. In earlier round, the appellant was convicted under section 302(c), P.P.C. And sentenced to 10 years' R.I. Vide judgment dated 1-6-1998. Against the conviction and sentence recorded vide judgment dated 1-6-1998, the convict filed an Appeal bearing No,332 of 1998. Along with the appeal, Ali Anwar, complainant filed Criminal Revision No,332 of 1998. Both the appeal as well revision were decided together by a Division Bench of this Court vide judgment dated 29-3-2000. The penultimate paragraph of the judgment rendered in above- said appeal reads as under:-- "In our considered view, Ghulam Ahmad did not act in self-defence but while armed with .212 rifle, committed the murder of 2 young persons out of whom one was married one. The evidence brought on record by the prosecution having been misread and not construed in a proper manner, we accept the revision petition, set aside the judgment dated 1-6-1998 passed by learned Additional Sessions Judge, Okara and remit the case for re-trial by the learned Sessions Judge himself who would conclude the trial within a period of three months."
11. ' The main contention of learned counsel for the appellant is that it is a case of double jeopardy as he in the earlier round having served out his full term of sentence recorded against him by the trial Court, cannot be sentenced second time for the same offence. We are not in agreement with the learned counsel for the appellant for the reason that the appellant was earlier convicted under section 302(c), P.P.C. And sentenced to 10 years' R.I. And on revision petition filed by the complainant, the case was remanded back for re-trial and it was thereafter that the appellant was convicted under section 302(b), P.P.C. And sentenced to death. We have respectfully gone through the precedent of the apex Court but that is not applicable to the facts and circumstances of this case.
12. ' It is a case of two versions; one set up by the prosecution and other introduced by the appellant in his statement under section 342, Cr.P.C. The stance taken by the appellant in reply to question "Why the case has been made against you and why the P. Ws. Have deposed against you" reads as under:-- "P.W. Anwar is real brother of deceased person. P.W. Sakhi Muhammad and Niaz Ahmad are maternal uncle of deceased while Muhammad Tayyab P.W. Is brother-in-law of Ali Akbar deceased. Ghulam Yasin is father-in-law of Ali Anwar, complainant. Due to this relationship, they have deposed against me. On the night between 2/3-8-1995, the deceased party took my canal water turn and hired proclaimed offender for their assistance which included Waseem and Akhtar etc. And the complainant party started firing to show pump and show on me and I in order to save my person fired in self-defence. Due to this cross-firing the deceased persons received injuries."
13. ' A bare perusal of the above-quoted stance of the appellant shows that the appellant did not act in exercise of right of self-defence as also of property as according to his version the complainant party along with hired persons fried at him but it is noteworthy that he did not receive any injury on his person. He also did not produce any documentary evidence to show that on the day of motive part of the case, it was the water turn of the appellant. The appellant has admitted to have killed the two deceased. The motive altercation took A place between Ali Akbar deceased and the appellant but the appellant also killed Muhammad Hassan, a brother of Ali Akbar deceased because he had raised hue and cry. According to Article 121 of the Qanun-e-Shahadat Order, 1984, when an accused person takes a specific plea, onus lies upon to prove the same which in the instant case, the appellant has failed to discharge.
14. ' The argument of learned counsel for the defence that dimension of injuries on the persons of two deceased shows that they were fired at by two and not one person is ill-merited for the reason that when shots are fired on different parts of body and from different places, then the dimension has naturally to vary with each other.
15. ' The next contention of the learned counsel that the deceased were done to death by more than one person is negated from the very stance of the appellant taken by him in his statement under section 342, Cr.P.C. Whereby he stated that he killed both the deceased while exercising right of self-defence.
16. ' The ocular account furnished by the eye-witnesses is fully corroborated by medical evidence inasmuch as time the duration given by the doctor who conducted post-mortem examination on the dead-bodies of the two deceased between the time of death and post-mortem coincides with each other. The post-mortem was conducted after complete 24 hours of the occurrence of murder. Injuries were found on different parts of bodies of both the deceased. There can be some fault on the part of the complainant for mentioning injury on the temporal region of Ali Akbar deceased but that alone is not fatal to case of the prosecution when the appellant has himself admitted to have committed the murder in exercise of right of self-defence.
17. 'It is a case of single accused so there is no question of substitution.
18. ' Having seen the entire case from both the sides, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt through ocular account duly corroborated by medical evidence, motive and admission of the appellant to have killed the two deceased though in exercise of right of self-defence which we have not believed, as discussed above.
19. ' The case was registered on 3-8-1995. The conviction and sentence was recorded by learned Additional Sessions Judge vide judgment dated 1-6-1998. On revision filed by the complainant, the case remanded for re-trial. The judgment after re-trial was pronounced on 9-7-2000. The appellant served out his full terms of sentence recorded against him vide judgment dated 1-6-1998 and was released from jail and it was only then that he was taken into custody when the case was remanded by this Court vide judgment dated 29-3-2001 and since then he is in jail. Taking these factors as mitigating circumstances and relying upon the judgment cited by learned counsel for the appellant Abdul Haq v. Muhammad Amin and others (2004 SCM R 810) into consideration, we though maintain conviction of the appellant under section 302(b), P.P.C. But alter his sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence of compensation as ordered by the trial Court on two counts is maintained.
20. ' However, the sentences recorded against him by the trial Court under section 302(b), P.P.C. On two counts shall run concurrently.
21. ' The death sentence of appellant is not confirmed and Murder Reference is answered in the negative.