Rahat Hussain Jafferi, J.--The appellant Abdul Kareem was charged for causing murder of deceased Muhammad Rafi in the Bazar of vill ge Machike by causing firearm injury on his person on 31.8.2001 at 10:30 a.m. The appellant was accompanied by four other acquitted persons namely Sabir Ali, Muhammad Naseeb, Fazal Din alias Baggi and Muhammad Javed who were alleged of making lalkara and ineffective firing at the place of incident. The incident was witnessed by the complainant Shahid Rafi PW 7, Muhammad Sharif PW 8 brother of the deceased, and Muhammad Sharif, cousin of the complainant, (not examined). The matter was reported to the police on the same day at 11:55 a.m.
2. The alleged motive was that acquitted-accused. Fazzal Din @ Baggi got a case registered vide FIR No, 484/2001 under Section 324, PPC at Police Station Saddar, Sheikupura against the father of complainant and others and during the course of investigation, they were found innocent, therefore, the accused were annoyed.
3. At the trial, the prosecution examined 10 witnesses including two eyewitnesses PWs 7 and 8 and the Medical Officer. The appellant admitted the causing of murder of the deceased by means of firearm weapon but took the plea that he made such firing in his self-defence. While recording his statement under Section 342, Cr.PC, the appellant made the following statement:-- "I am innocent, the motive is false; PWs and the complainant did not see the occurrence and the occurrence did not happen as alleged by the prosecution. On the day of occurrence i,e, 31.8.2001 after having been free my duty as during the days of occurrence I was serving in police department and was posted in P.S Lower. Mall, Lahore and came to my house alighted at Adda Machike. It was about 10.20 a.m. and was going to my house on the way Muhammad Rafi deceased met me per chance near the PCO at Adda Machike, upon seeing me the deceased gave me a taunt by saving that nothing could be pulled out of him by implicating the deceased in a criminal case and the deceased showered filthy abuses and made obnoxious expressions and signs to me to which 1 also replied in the same coin; due to which grappling took place between me and the deceased and Muhammad Rafi deceased pulled out a pistol and tried to shoot upon me but I snatched said pistol from the deceased and in the heat of passion under the impulse of grave and sudden provocation made one shot upon the deceased who fell down on the ground in front of the PCO, No other accused person was with me at the time of occurrence and my act was not intentional. Nobody abetted me ever. The complainant party with due deliberation and consultation after having in league with the police by suppressing the true version of the occurrence got a false case registered. On the day of occurrence I appeared before the police and also produced a pistol to the police. I also narrated the facts under which this incident took place but the police intentionally and dishonestly due to collusion with the complainant party did not bring the same on the record. It was not an intentional and pre- mediated occurrence. I did not want to commit the murder of Muhammad Rafi and no fire was repeated by me. The 1.0 intentionally and deliberately did not investigate the case on the true facts in which the occurrence has taken place and I have narrated to the police. Pistol has been falsely planted upon me, I am innocent and no conspiracy was ever hatched or any punctuate was ever convened at the dere of Mukhtar Ahmad Lumberdar".
4. The trial Court after considering the prosecution evidence and defence plea, while acquitting the co-accused named above convicted the appellant for offence punishable under Section 302(b), PPC and sentenced him to death with direction to pay Rs, 2,00,000/- as compensation to the legal heirs of the deceased or in default thereof to suffer R.I for six months. The trial Court sent reference for confirmation of sentence to the Lahore High Court at Lahore. The appellant preferred appeal but the same was dismissed and murder reference was answered in the affirmative under the impugned judgment dated 25.9.2008. The appellant preferred petition for grant for leave to appeal before this Court which was allowed to consider as to whether defence plea raised by the petitioner was properly appreciated by the Courts below or not and to reappraise the evidence in detail for safe administration of justice. Hence this appeal.
The learned counsel for the appellant has argued that the appellant has no motive to commit the offence; that all the family members of the appellant have been involved; that the PWs 7 and 8 are chance witnesses, hence, their evidence requires corroboration but the prosecution has failed to furnish such evidence, as such their evidence is untrustworthy; that the occurrence took place at a thickly populated area, surrounded by shops situated at Ghang Road but no independent witness has been examined; that the witnesses are closely related to the deceased; that the defence plea of the appellant has not been properly considered; that if the defence plea is accepted, then this is not a case of capital punishment, therefore, his sentence may be reduced to imprisonment for life.
He has relied upon the case of Mushtaq Ahmad v. The State, PLD 2004 SC 150. Conversely, the learned State counsel has stated that ocular testimony is confidence inspiring; that there is no material contradiction in their evidence; that the witnesses are consistent on, all the material particulars; that the appellant has admitted that he caused firearm injury to the deceased; that the appellant took the plea of self defence but no evidence has been led to prove such plea, therefore, the learned High Court has rightly discarded the defence plea and that the impugned judgment does not suffer from any illegality or irregularity.
6. Having heard the learned counsel and reappraised the evidence with the assistance of the learned counsel for the appellant, we find that the ocular evidence was furnished by PWs. 7 and 8 who specifically stated that on 31.8.2001 at 8:30 a.m. they along with deceased Muhammad Rafi were standing by the side of the PCO, waiting for a bus for going to Farooqabad and they were busy in talking with each other when suddenly the appellant armed with mauzer and the acquitted accused with firearm weapons reached there. The acquitted accused Fazal alias Baggi raised lalkara and the appellant fired a shot at the deceased which hit him on his left flank thereafter he fell down in the PCO. One of the accused fired at the deceased which was missed and thereafter they fled away. In order, to test the veracity and credibility of witnesses they were subjected to lengthy cross-examination but nothing came on record to discredit their evidence or bring any infirmity in it. The evidence is unanimous on all the material aspects of the case. These witnesses can not termed as chance witnesses as the incident took place at a public place. Reference is invited to Muhammad Ashraf and another v. The State (PLD 1977 SC 538).
7. The appellant admitted the time and place of the incident. He also admitted causing firearm injury to the deceased but took the plea that it was in his self-defence. Under Article 121 of Qanun- e-Shahadat Order, 1984 the appellant is required to prove such plea. The said Article reads as under:--
5. "When a person is accused of any offence the burden of proving the existence of circumstances bringing 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".
8. In support of his statement under Section 342, Cr.P.C. the appellant did not lead any evidence to prove his assertion, even from the cross-examination he was unable to prove such plea. On the contrary, such plea, was not put to the witnesses so as to obtain any admission to get some support to his plea. Thus the Court is required to presume that such plea was not in existence. The entire statement of the appellant could have been accepted if there would have been no evidence of the prosecution to support the case, but when the prosecution evidence is relied upon then incriminating part of the statement of the accused can be taken into consideration. Thus the case of the prosecution is proved against the appellant.
9. As regards the sentence, learned counsel for the appellant has argued that the deceased has questionable character because he was involved in several cases, therefore, this may be treated as a mitigating circumstance to reduce the sentence. He has relied upon the case of Mushtaq Ahmad u. The State (PLD 2004 SC 150). In the reported case the complainant admitted that the deceased was involved in 5 or 6 cases which were pending in the Court. Whereas in the present case the facts are different. Firstly the complainant has admitted that the deceased was involved in Crime No, 484/2001 under Section 324, PPC as an abeter. The incident of said offence took place about two moths prior to the incident. This is the cause which has been shown as motive of the present incident. It has also come on the record that when this incident took place at that time the investigation of the said case was going on and the deceased was on bail in the said case. The second case as admitted by the complainant pertains to the year 1992 in which a person died in police custody, but the deceased was involved in the case. The complainant further admitted that deceased was found innocent during the investigation. There is no evidence on the record to show that the said case was challaned in the Court. The appellant has failed to furnish any documentary or oral evidence to show that such case was challaned or pending at the time of incident of this case. It is well settled that accused involved in a case is presumed to be innocent unless proved guilty. Mere filing of one case against the deceased which is the motive of the present case does not labeled him a person of questionable character. Thus the above authority is not applicable to the facts and circumstances of the present case. Normally this Court does not interfere with the sentence as it is the function of the trial Court and the High Court to determine the same.
Reference is invited to Ameer Umer v. The State (1976 SCM R 338), Muhammad Rafiq v. The State (1971 SCM R 378) and Rehmuddin v. The State (1973 SCM R 327). Keeping in view the facts and circumstances of the case both the Courts below have awarded normal sentence to the appellant.
We do not find any mitigating or special circumstance to interfere with the sentence.
10. In the light of what has been discussed above, the appeal is dismissed.