'MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,40-J/2004 (Muhammad Munir v. The State) and Murder Reference No,353/2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Muhammad Munir appellant, as both these matters arise out of the same judgment dated 31-1-2004 passed by the learned Additional Sessions Judge, Gujranwala, whereby, appellant was convicted for the murder of Abid Hussain under section 302(b) P.P.C. And sentenced to death with a further direction to pay a compensation of Rs,50,000 as provided under section 544-A Cr. P.C. To the legal heirs of the deceased in default whereof to further undergo RI for six months. Holwever, benefit of doubt was extended to Muhammad Amjad co-accused of the appellant by way of acquittal from the charges levelled against him.
2. Brief facts of the case, as given by P.W.5. Munawar Hussain (complainant) in the F.I.R. (Exh.PA/1) recorded on the basis of "Fard Bayan" Exh.PA) are that on 5-10-2001 at about 2-15 p.m. The complainant, his brothers Shahid and Abid Hussain (deceased) were sitting in the shop of Abid Hussain (deceased) and were talking about some family matter. According to the complainant, Nazir Ahmad and appellant Muhammad Munir also resided in the same street near the mosque of "Ayubia Ahl-e-Hadis". It has been mentioned by the complainant in the F.I.R. That sewerage water was oozing in the street in front of the house of the accused persons which was causing trouble for the people going to say prayer in the mosque. Abid Hussain (deceased) complained Nazir qua the said problem which was felt by him as his insult. Abuses were exchanged between both of them on the said issue. It has further been mentioned in the F.I.R. That the said Nazir entered into his house and after few minutes, Muhammad Nazir, Muhammad Munir along with their "Behnoi" Amjad came out of their house in the street. The complainant also stated in the F.I.R. That Amjad raised a lalkara to teach a lesson to Abid Hussain (deceased). As per F.I.R., the complainant also alleged that Muhammad Nazir was armed with a dagger while Muhammad Munir (appellant) was armed with a Chhurri. Both of them attacked Abid Hussain (deceased) and inflicted different blows with their respective weapons which stamped on the left side of the chest, left arm, left thigh and other parts of the body of Abid Hussain (deceased) who fell down on the ground. As per F.I.R., when the complainant and his brother Shahid Hussain stepped forward to rescue Abid Hussain (deceased), Nazir and Munir caused injuries to Shahid Hussain as well. "Mohallah Daars" gathered at the spot, upon which, the accused decamped from the spot. Both the injured persons i.e, Abid Hussain and Shahid Hussain were shifted to the Civil Hospital Gujranwala where Abid Hussain (deceased) succumbed to the injuries whereas Shahid was admitted in the hospital for his treatment.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant and his co-accused as required under section 265- C of the Code of Criminal Procedure, charge was framed to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 14 witnesses during the trial. The learned DDA gave up Muhammad Asif and Muhammad Siddique being un-necessary and closed the prosecution evidence after tendering the reports of Chemical Examiner (Exh.PP) and Serologist (Exh.PQ). The appellant was examined under section 342 Cr.P.C. He opted not to depose on Oath as required under section 340(2) Cr.P.C. Muhammad Yaqoob and Muhammad Shafi were produced as DW1 and DW2 respectively by Amjad Hussain (acquitted co-accused) while Mst. Hanifan Bibi and Mst. Aasia Bibi were produced as D.W.3 and D.W.4 respectively by the appellant in their defence. However, the learned trial Court convicted and sentenced the appellant as detailed above. In answer to question "why this case against you and why the P.Ws. Have deposed against you", the appellant replied as under:- "Shahid Hussain P.W. Along with Abid Hussain deceased came to my house at 1-00 p.Ni. On the day of occurrence and asked me to demolish the Guttar out side my house for which I refused in a soft manner. The above mentioned persons again came to my house and started breaking the Guttar and when I and Muhammad Nazir protested they entered into my house and Abid Hussain torn the clothes of mother of Nazir accused and his sister and their bodies were exposed on this Muhammad Nazir lost his self-control and due to sudden provocation he took a Chhurri and outrageously attacked Abid Hussain deceased and after seeing the blood of Muhammad Nazir and fled away from the spot and went to the P.S. For recording out version but due to the influence of the complainant party, the version was not recorded and we were asked to get away from the P.S. And then to height out their crime and to save their, skin. The complainant party concocted false story and false evidence were created. I do not know whereabouts of Muhammad Nazir and he might be abducted and murdered by the complainant party and the complainant and the other private PWs being inter se related falsely, deposed against me due to grudge and to blackmail me and to save their own skin".
5. Learned counsel for the appellant contends that there was a specific plea taken by the appellant in his statement recorded under section 342, Cr.P.C. Which is more plausible as compared to the prosecution case; that P. W . 4 . Shahid Hussain has claimed to be injured eyewitness of the occurrence but neither any M.L.R. Has been brought on record nor the prosecution produced any doctor in support of the said claim, therefore, presence of the said witness at the spot is not proved; that the appellant has not been declared as a Proclaimed Offender in accordance with law, therefore, this evidence cannot be used against him; that presence of both the eyewitnesses at the spot is doubtful which finds support from the fact that the appellant was not convicted under section 324 P.P.C. For the injuries on the person of injured-P.W. Shahid; that no reliance can be placed on the testimony of both the P.Ws. And that the appellant is entitled to acquittal as the prosecution has failed to prove its case against him.
'Learned counsel lastly contends that if this Court is not persuaded by the argument of acquittal of the appellant then it is not a case of capital sentence because even if the prosecution evidence is accepted as a whole, it is a case of sudden fight without any pre-meditation on the part of the appellant and as such sentence of death is not warranted in the circumstances of the case.
6. Conversely, the learned Additional Prosecutor General for the State, while opposing this appeal, contends that the appellant is named in the F.I.R. With a specific role; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the P. Ws. Had no enmity with the appellant to falsely depose against him during the trial; that, even otherwise, in such like cases substitution is a rare phenomenon, that the ocular account in this case is corroborated by the medical evidence; that guilt of the appellant further finds support from his long abscondence spreading over about one year and ten months; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence .Awarded to the appellant by the learned trial Court be maintained. However, he has conceded that it is a case in which capital sentence is not warranted because of the quarrel took place at the spur of the moment.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 5-10-2001 at about 2-15 p.m., the matter was reported to the police by P.W.S. Muhammad Hussain (complainant) through "Fard Bayan" (Exh.PA) at Civil Hospital, Gujranwala at about 4-00 p.m., the formal F.I.R. Was registered on the same day at about 4-30 p.m., while the distance between the place of occurrence and the Police Station was about three furlongs. It is but natural that some time must have been consumed in the transportation of the injured to the hospital and the police also must have also taken some time to reach the hospital, therefore, in our view, it is a case of promptly lodged F.I.R.
9. In the F.I.R., three persons were arrayed as accused. Munir is appellant before us. Amjad has been acquitted by the learned trial Court who was attributed only a lalkara. The third accused in this case, namely, Nazir is a Proclaimed Offender:
10. The prosecution, in order to prove the ocular account, has produced P.W.S. Munawar Hussain (complainant). Although he is closely related to the deceased i.e, real brother yet he has no enmity or strong motive to falsely implicate the appellant in this case. More so, it is rare phenomenon that a real brother of the deceased would substitute the real culprit and woud A implicate the appellant. He remained consistent on material aspect of the case. He has reasonably explained his presence at the place of occurrence as the occurrence admittedly took place in front of his house and we see no reason not to accept his statement. Notwithstanding the fact that he was subjected to cross-examination but the defence failed to shake his testimony and his statement inspires confidence.
11. There is .Yet another eye-witness of the case, namely, P.W.4 Shahid Hussain who appeared before the learned trial court in support of the prosecution case. He also remained consistent on all material particulars of the case and the defence failed to shake anything from his testimony despite his cross-examination, to which he was subjected during the trial. He corroborated the statement of P.W.5 Munawar Hussain on the main points. Although he is also real brother of the deceased yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to witness the occurrence which took place in front of the shop of the deceased where all the three brothers i.e, both the eye-witnesses and Abid Hussain (deceased) were talking about some family matter, so, their presence at the spot is quite natural.
This Court seems his testimony to be worthy of credence. This witness has claimed that he was also injured in the occurrence but no medical evidence in this respect has been produced by the prosecution in this regard. But, it will not the presence of this witness at the spot, doubtful.
12. Apart from above, the ocular account in this case finds support from the medical evidence. In this case, the postmortem examination was conducted on the body of the deceased by Dr. Tariq Javed on 5-10-2001 at about 11-50 p.m. but he was not available to appear before the learned trial Court as he had already proceeded to Saudi Arabia. The postmortem examination report was proved before the Court by P.W.11 Zulfiqar Ali Dispenser. According to the postmortem examination report, there were two abrasions and eleven incised wounds on the body of the deceased.
13. According to the opinion of the doctor, the probable time between the receipt of injuries and death was within one to two hours and between death and postmortem was about eight hours and forty minutes hours which coincides with the time of occurrence.
14. There is yet another aspect of the case. The appellant took a specific plea qua the occurrence but we have noted that he has failed to produce any convincing evidence to prove the said plea because D.W.3 Hanifan Bibi and D.W.4 Mst. Aasia Bibi are mother and sister respectively of the appellant and they have admitted that they did not inform the higher authorities in the police hierarchy qua their grievance. It appears that the plea raised by the appellant was an afterthought and is of no avail to the defence because except their oral assertions before the Court, no supporting material has been placed on record. Under Article 121 of the Qanun-e-Shahadat Order, 1984 when an accused takes a specific plea to bring his case within exceptions, 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 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".
'In this connection, reliance can be placed on a judgment of the august Supreme Court of Pakistan in Mst. Dur Naz and another v. Yousaf and another (2005 SCM R 1906), wherein, while dilating upon the defence plea, the apex Court at page 1912, observed as under:- "....It is also settled principle of law that when defence plea is raised by an accused, the burden to prove the same lies on his shoulders. In the instant case when said plea is examined in juxtaposition to the case of prosecution seems to be untrue. Reference can be made to the case of Abdul Wahid vs. The State (2003 SCM R 668) wherein it was held that initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the be considered in juxtaposition and the one which is nearer to the truth is to be given weight".
(emphasis supplied).
15. Apart from above, abscondence of the appellant for a period of about one year and ten months is another factor which goes F against the appellant because the occurrence in this case took place on 5-10-2001, the appellant was arrested on 15-7-2003 as such he remained absconder for a period of about one year and ten months. In this respect, reference can be given to Exh.PJ/1 which is warrant of arrest and Exh.PK/1 is a proclamation issued against the appellant. P.W.8. Guizar Ahmad Constable No, 2393/C appeared to prove the said documents.
16. In the afore referred circumstances, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, conviction and sentence of the appellant under section 302(b), P.P.C. Is hereby maintained.
17. However, we have noted that it is not a case of capital punishment because the H occurrence took place suddenly over a petty matter, there is no deep rooted enmity between the parties and the attack was not a pre-meditated one and even the learned APG has conceded that in the;peculiar facts and circumstances of the case, it is not a case of capital sentence. The question of mitigation on account of non-existence of pre-meditation and the occurrence having taken place at the door of the, accused came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Ibrar v. The State (2006 SCM R 1175), wherein, at page 1179, the Apex Court of Pakistan observed as under:- "........... The main reason which weighed with the learned High Court for reduction in sentence of petitioner was that it was not a premeditated incident and that it took place at the door of petitioner. Impugned judgment is based on proper appraisal of evidence and does not require interference".
' Apart from above, the question of discretion in awarding sentence to the accused in the case of "Qatl-e-Amd" came up for consideration before the august Supreme Court of Pakistan in the case of Iftikharul Hassan v. Israr Bashir and another (PLD 2007 SC 111) and we are of the unyielding view that it is a fit case in which such discretion needs to be exercised. In the said judgment, at page 119, the learned Apex Court has been pleased to hold as under:- "................. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under sections 302(a) and 302(b) P.P.C. Respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b) P.P.C. And exercise of this discretion in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in case in which Qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstance of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCM R 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v.
State (2003 SCM R 855 and Abdus Salam v. State (2000 SCM R 338)".
18. In view of the above discussion, the sentence of death of the appellant is converted into punishment for life. The I amount of compensation as ordered by the learned trial Court shall remain intact but in default of compensation, the appellant is directed to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence. It is made clear that the findings in this judgment shall not influence case of the absconding accused, during the trial.
'Murder Reference is answered in the negative and sentence of death is not confirmed.