' S.M. ZUBAIR, J.--Muhammad Ramzan and his father Jamal Din were tried under sections 302/307/34, P.P.C., for the murder of Rifat Ali and for murderous assault on Abbas All injured (P.W.12) by the learned Additional Sessions Judge, .Toba Tek Singh. The trial Court vide its judgment dated 23-12-1986, convicted Jamal Din appellant under section 302, P.P.C. And sentenced him to death plus fine of Rs, 10,000 or in default two years' R.I. The fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation. He was further convicted under section 324, P.P.C. For causing simple injury to Abbas All and was sentenced to two years, R.I. Plus fine of Rs,1,000 or in default three months, R.I. Muhammad Ramzan was, however, acquitted of the charge.
2. The convict has filed Criminal Appeal No, 63 of 1987, while the matter is also before us under section 374, Cr.P.C. For confirmation of death sentence.
3. Abbas All has filed Criminal Revision No, 171 of 1987 challenging the acquittal of Muhammad Ramzan, which was ordered to be heard along with the appeal.
' We propose to dispose of three matters by this judgment.
4. The occurrence in this case took place on 6-10-1985 at 4-30 p.m. Statement Ex.P.O. Of Rifat All deceased, who was then alive, was recorded in the hospital the same day at 9-00 p.m. By Muhammad Siddiqui S.I. (P.W.13). The formal F.I.R. Ex.P.M. Was recorded at Police Station Saddar, Gojra, by Nawab Khan, HC P.W.11 the same day at 9-15 p.m.
5. The motive for the assault is stated to be that the appellant and his son had obstructed the path leading towards the Dera of the deceased by putting a heap of earth. The deceased got the obstruction removed and paved away the path through the Assistant Commissioner. The accused party again obstructed the path. It is also alleged that whenever the deceased party passed through that path, the accused party used to close that. This motivated the present occurrence.
6. As for the main occurrence, Rifat Ali deceased in his statement stated that he had built a cattleshed in Square No,54 Killa No, 22 of Chak No, 154 G.B. This cattleshed is contiguous to the village Abadi and a water-course intervenes the cattleshed and the village Abadi. On the day of occurrence, at about 4-30 p.m. The deceased alongwith his brother Abbas Ali (P.W.12) was present at his Dera. At that time, the appellant and his son Muhammad Ramzan resident of Chak No, 154 G.B. Armed with chhuris emerged there. Reaching the Dera they raised lalkara and abused the deceased and his brother Abbas Ali. Jamal Din appellant gave a chhuri blow which landed on the chest of Rifat All followed by chhuri blow by Muhammad Ramzan on the buttock of Abbas Ali.
Muhammad Shafi and Muhammad Yousaf (not produced) reached the spot and rescued them.
The accused left for their house while raising lalkara.
7. After the occurrence both the injured were removed to Civil Hospital, Gojra where Muhammad Siddique S.I. (P.W. 13) also arrived. He recorded the statement of Rifat All deceased and as stated above sent it to the Police Station for formal registration of F.I.R. Muhammad Siddique S.I. (P.W. 13) also recorded the statement of Abbas All injured (P.W. 12) in the hospital.
8. Dr. Muhammad Afzal (P.W.6) medically examined Rifat All on 6-101985 at 7-30 p.m., while he was alive and found the following injury on his person:- ' A stab wound, 4.5 c.m. x 1.5 c.m. x omentum coming out, oblique in direction on the front of left side of abdomen, 6 c.m. To the left of umbilicus and at the level of its limit.
9. On the same day he also examined Abbas Ali injured (P.W.12) and found the following injury on his person:-- An incised wound, 3.3 c.m. x 1 c.m., depth not probed, on the upper part left buttock to the outer side of sacrum. The wound was oblique in direction and there was corresponding cut on the chaddar.
10. Rifat Ali died in the hospital on 7-10-1985, the S.I. Reached there. He prepared the injury statement Ex.PP and inquest report Ex.PQ. He entrusted the dead body of Rifat Ali deceased to Ahmad Yar F.C. (P.W.3) for post-mortem examination.
11. Dr. Iftikhar Ahmad Parachi (P.W.10) conducted the post-mortem examination of the deceased on 7-10-1985 at 8-00 a.m. And found the following injuries on his person:-- ' A stab wound/obliquely 3-1/2 c.m. x 1-1/2 c.m. x prolapsed omentum on left side of abdomen 6 c.m. From and little below the level of umbilicus underneath peritoneum, mesentry of small intestine at 2 places, omentum at two places and small intestine at 2 places were cut through and through while aorta above its division in the lower abdomen at level of 3/4 lumber vertebra was cut halfly.
12. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injury noted above. It was grievous and fatal and was sufficient to cause death in ordinary course of nature. The duration between injury and death was about 8 hours, and between death and post-mortem was 7 hours 15 minutes.
13. On 7-10-1985, the S.I. Reached the spot. He recorded the statement of the P.Ws. Ahmad Yar F.C.
(P.W.3) produced before him the last-worn clothes of the deceased which were taken into possession vide memo Ex.PB. Blood-stained Dhoti of Abbas All (P.W.12) was also taken into possession vide memo Ex.PN. He collected blood-stained earth from the spot vide memo Ex.PA.
14. On 8-10-1985, Muhammad Siddique S.I. (P.W.13) arrested the appellant and acquitted accused.
The same day the appellant led to the recovery of bloodstained Chhuri P.3 from his house which was taken into possession vide memo Ex.PJ. Muhammad Ramzan (since acquitted) also got recovered blood-stained Chhuri P.4 from his house which was taken into possession vide memo Ex.PK. During the investigation, Umar Din brother of Jamal Din appellant produced before the S.I. His medico-legal report vide Ex.DA. After completing the formalities, he submitted the challan.
15. The Chemical Examiner vide his report Ex.PR opined that Chhuris recovered at the instance of the appellant and acquitted accused were stained with blood. The Serologist vide its report Ex.PS opined that the weapons were stained with human blood.
16. The appellant denied the prosecution allegation against him. With regard to the dispute regarding the erection of Tharra, he stated that his brother Umar Din was pursuing litigation. He stated that the dying declaration was a fake document. In fact the Investigating Officer obtained the signature of the injured on blank paper which was later on converted into the dying declaration. He made the following statement to a question "Why this case against you and why the P.Ws. Have deposed against you?":-- "We had litigation with the deceased and the injured P.W. Ghulam Abbas. My brother Umar Din pursued the case which enraged the complainant party against him particularly and against us also. The deceased Rifat Ali and P.W. Ghulam Abbas felt insult and nourished grudge. On the day of occurrence i,e, 6-10-1985 Rifat Ali deceased and Ghulam Abbas P.W. Armed with chhuries assaulted my brother Umar Din. They lifted him up, abducted and took him away towards their Dera. On the way Umar Din resisted, Ghulam Abbas P.W. Inflicted injuries with chhuri on his person.
Umar Din snatched the chhuri from him and inflicted injury on his person. Rifat Ali deceased got infuriated, pounced upon him, fell Umar Din on the ground and himself upon him. He caught testile of Umar Din and pressed it hard resulting in his shrieks. The deceased would not leave him and continued pressing his testicles. In order to get rid of the deceased Umar Din stabbed him from underneath. This injury later proved fatal. Myself and my son Muhammad Ramzan co-accused were not present at the time of fight. Apart from the deceased and Ghulam Abbas P.W. No other P.Ws. Was present at the time of fight."
' He further stated: "Both the male members of family have been involved in this false case leaving my ailing wife and young unmarried daughter unattended. My brother Umar Din being scared did not go to the village after being cured. After the registration of this case the complainant party turned out my wife and daughter from the village and forcibly occupied my house leaving them in miserable condition. I am innocent."
' The appellant produced documentary evidence in support of his defence which consisted of discharge slip issued by the Medical Officer, Civil Hospital, Gojra, copy of the birth certificate of Muhammad Ramzan, application addressed to the Head Master Government High School Chak No, 178 G.B, and admission form of Muhammad Ramzan issued by the Board of Intermediate & Secondary Education, Sargodha.
17. The learned trial Court placing reliance on the ocular evidence furnished by Muhammad Shafi (P.W.9) and Abbas All injured (P.W.12) who also deposed about the motive, corroborated by the recovery of chhuri P.3 and medical evidence came to the conclusion that the prosecution has proved its case against the appellant beyond any shadow of doubt and accordingly sentenced him as indicated above, but gave benefit of doubt to Ramzan co-accused and acquitted him from the charge.
18. The learned counsel for the appellant contends that both the eyewitnesses are interested and chance witnesses. Muhammad Shafi (P.W.9) was not present at the spot. The F.I.R. Lodged by the deceased cannot be treated as dying declaration, and no conviction can be recorded on the basis of this dubious document. It is further urged that the deceased alongwith Abbas Ali injured (P.W.12) opened attack upon his brother Umar Din, who in self-defence, caused injuries to the deceased as well as to the injured P.W.12. The appellant and acquitted accused have been involved due to enmity, and to take forcible possession of their house in the village.
19. The learned State council adopted those reasons which prevailed with the trial Court while passing the impugned judgment. Learned counsel for the complainant submitted that Ramzan co- accused has been acquitted on the mis-appreciation of evidence, and his acquittal has resulted into miscarriage of justice. He urged that sentence of the appellant be maintained, and the order of acquittal passed in favour of Ramzan co-accused be set aside, and his case be remanded for fresh trial in accordance with law.
20. We have gone through the entire record carefully with the able assistance of the learned counsel for the parties. The contention of the learned defence counsel that Muhammad Shafi (P.W.9) is a chance witness is entirely misconceived and devoid of force, as this witness hails from the same chak, where occurrence took place. He is an independent witness. He has got neither any enmity with the appellant nor any relationship with the complainant party. He has given straightforward eye-account of the occurrence, which is being corroborated by the medical evidence and recovery of blood-stained churri P.3, at the instance , of the appellant. The appellant's name is mentioned in the F.I.R. The occurrence took place in broad daylight, hence there is no question of mistaken identity of the appellant. We see no justification to discard the ocular version furnished by this witness. His evidence is confidence inspiring and his presence at the scene of occurrence cannot be doubted. The presence of Abbas Ali injured (P.W.
12) is even admitted by the defence, though in a different manner, that he along with Rifat Ali deceased opened wanton attack on the person of Umar Din, brother of Jamal Din appellant. In nutshell, the case of the defence is that Umar Din, who has not been examined before the Court, caused injuries to the deceased as well as to Abbas All P.W.12, in the exercise of right of self- defence. In the presence of this defence plea, the case before us is of two versions, one version is put forth by the prosecution and the other version of self-defence is advanced by the appellant.
The principle applicable in such cases is that, it is for the accused to prove under Article 121 of Qanun-e-Shahadat, the existence of circumstances which might bring their case within any of the General Exceptions in the Pakistan Penal Code or within any exception or provision contained in any other part of the same Code or in any law defining the offence. This section further enjoins that the Court shall presume the absence of such circumstances. While bearing this in mind one should not lose sight of the now well-recognized principle of Criminal Jurisprudence that the prosecution must affirmatively prove its own case, the onus for which remains on it throughout. An accused person has to prove his special plea that may be set up by him in defence, but not to the same degree of certainty beyond a reasonable doubt, such as it is necessary for the prosecution, to establish the guilt of accused persons. After an over all examination of the whole case i,e, the case as made out by the prosecution and the defence, putting both in juxtaposition in the context of the entire evidence adduced, if any doubt arises in regard to the veracity of the prosecution case or defence version seems reasonably possible, although not decisively established, the resultant situation has to be construed in favour of the accused.
21. Applying the above mentioned golden principle of law, to the facts of this case, we find, the defence has not examined Umar Din in support of its plea, thus there is no material to substantiate the defence version except the medico-legal report of Umar Din Ex.DA placed on the record. On the contrary, the prosecution has proved its case through reliable evidence of Muhammad Shall P.W.9, whose evidence has been discussed in detail in the preceding paragraphs. In addition to that, we have on record, the evidence of Abbas All injured P.W. Whose testimony gets ample corroboration from the recovery of blood-staine chhuri P.3, recovered at the instance of the appellant, coupled with the media evidence and fortified by the evidence of motive. Even the presence of this witness is admitted by the appellant. The recovery of chhuri P.3 cannot disbelieved in the presence of evidence of Muhammad Ashiq (P.W.8), who is independent witness and resident of the locality, being relation of none. Chh P.3 was found stained with human blood which gives additional strength to the prosecution case Mere suggestion to the prosecution witnesses that Umar Din, 80 years old person, caused injuries to Abbas All P.W. And Rifat All deceased, in the absence of any material on the record, carries on weight. The doctor, who examined Umar Din, opined that possibility cannot be ruled out that the injuries found on the person of Umar Din might be self- suffered. The deceased before his death, made statement Ex.PO, which was taken down by the investigating officer, after obtaining certificate from the doctor, that he was in a fit condition to make statement. The defence counsel has assailed this document on the ground that formalities laid down for recording dying declaration were not observed, hence this statement cannot be used against the appellant.
We are afraid, this legal objection is not well founded, because when the statement of Rifat All was recorded, he was not in imminent danger of his life, hence formalities laid down for recording the dying declaration were not observed. Anyhow, this statement is relevant under Article 46 of Qanun- eShahadat and can be relied upon as a corroborative piece of evidence.
22. The trial Court on a proper appreciation of prosecution evidence rightly came to the conclusion that the prosecution has proved its case against the appellant beyond any shadow of doubt. We find no force in this appeal and accordingly maintain the conviction of the appellant.
23. After hearing the learned counsel for the complainant, we find that the trial Court after proper appraisal of evidence, rightly gave benefit of doubt to Muhammad Ramzan respondent. The learned counsel could not point out any misreading of evidence, hence the revision is dismissed in limine.
24. In the end, learned counsel for the appellant strenuously urged that the sentence imposed upon the appellant needs reconsideration, because he has not taken undue advantage of the weak position of the deceased and caused a solitary blow which proved fatal.
We have given our anxious consideration to this aspect of the case. We find that the appellant committed the gruesome murder of an unarmed person, hence he deserves no leniency in the sentence. The sentence of death imposed upon the appellant is, therefore, confirmed. The sentence of fine is also maintained. The conviction of the appellant under section 324, P.P.C. And sentences awarded thereunder are also maintained. The appeal fails in toto and is dismissed.