' ASIF SAEED KHAN KHOSA, J.--- Muhammad Idrees son of Muhammad Sadiq. Aged 42 years was convicted for an offence under section 302, P.P.C. By the learned Additional Sessions Judge. Sialkot vide judgment. Dated 18-5-1993 and was sentenced to death. He was also convicted for an offence under section 337-F(i). P.P.C. And was sentenced to one year's R.I. Vide the same judgment his co- accused namely Muhammad Rafique. Abdur Rashid and Khurshid Ahmed were acquitted of all the charges by the learned Trial Court. Muhammad ldrees has challenged his convictions and sentences before this Court through Criminal Appeal N0.72/J of 1993 which has been beard by us along with Murder Reference No,157 of 1993 in respect of confirmation of the sentence of death passed against him. We propose to decide both the said matters through the present consolidated judgment.
2. The prosecution case unfolded in the F.I.R. Was that Muhammad Akbar Butt complainant had a shop in Kathianwala Bazar in which he used to do the business of attache-cases. His brother Muhammad Aslam alias Godan used to reside in the upper-story of that shop. It was mentioned in the F.I.R. That a sewerage line was laid in the street in front of that shop where after some portions of the street were yet to he covered by soling. The complainant and his brother and plans to put sonic crush. Etc. On their part of the uncovered portion of that street. Two days before the occurrence they had disclosed their plans in that respect in the street which had infuriated Muhammad Ides and Muhammad Rafique accused who had threatened that if the crush-soling was to be laid in the street then the same had to be laid in the entire street and not in a part of it and that whoever would take that step he would lose his life. The said accused persons had also hurled filthy abuses at that time before leaving the street. On 24-4-1991 Muhammad Akbar Butt complainant and his brother Muhammad Aslam purchased some cement and other material and brought it in the said street and at about 2 p.m. On that day when they were preparing the material for laying the soling in the street Muhammad Adrees accused, armed with a Chhuri, Muhammad Rafique accused, armed with a Genti. Adbdur Rashid accused and Khurshid Ahmed accused, both empty-handed, emerged there. Abdur Rashid and Khurshid Ahmed accused raised an abusive Lalkara that Muhammad Aslant and Muhammad Akhar would be taught a lesson for doing that job and that both of them were to be done to death so that in future nobody would dare to do that.
Upon that Muhammad Idrees accused gave a Cheri blow to Muhammad Aslam which landed on his left elbow. Muhammad Ides accused then gave second blow with his Chhuri to Muhammad Aslam at the front of his chest near his heart upon receipt of which Muhammad Salam fell down.
When Muhammad Akhar complainant advanced towards Muhammad Aslam and tried to intervene Muhammad Idrees accused gave Chhuri blows to him as well causing injuries at his left hand, hack of left hand and the left tipper arm. Muhammad Ration accused kept on brandishing his weapon and raising Lalkaras a!Engwith his co- accused in the meanwhile threatening that whosoever came to the rescue of the complainant and his brother would also meet the same fate.
The noise raised at the place of occurrence attracted Ghulam Mustafa, Muhammad Ramzan alias Mani, Zaheer-ud-Din and others at the spot, who also witnessed the said occurrence. Thereafter, the accused persons fled from there along with their weapons. Muhammad Akbar Butt complainant and his other relatives took Muhammad Aslam in an injured condition to Allama Iqbal Hospital, Sialkot where the complainant was admitted to the hospital but his brother Muhammad Aslam succumbed to his injuries upon reaching the hospital. Upon receipt of an information about the occurrence Muhammad Boota. S.-I. (P.W.13) reached that hospital at about 3 p.m. On the same day and recorded the statement (Exh.P.B.1 of Muhammad Akbar Butt complainant in respect of the incident. A formal F.I.R. No,125 (Exh.P.B./l) was subsequently registered at Police Station Kotwali at 3- 30 p.m. On the same day and the same was recorded by Anwar Farooq. H .O . (P. W .3).
3. Muhammad Boota. S.-1./S.H.O. (P.W.13) took up the investigation of this case after recording the statement of the complainant at Allama lqbal Hospital, Sialkot, went to the Emergency Ward and prepared injury statement (Exh.P.J.) and inquest report (Exh.P.K.) in respect of Muhammad Aslam deceased. He then sent the dead body of Muhammad Adam for autopsy. Thereafter he visited the place of occurrence on that very day. Inspected the spot, secured blood-stained earth from the place of occurrence vide memo. Exh.P.C. And prepared rough site plan (Exh.P.M.) of the place of occurrence besides recording the statements of witnesses.
4. The post-mortem examination (Exh.P.G.) of the dead body of Muhammad Aslam was conducted by Dr. Khaliq Ahmed Qureshi (P.W.9) on 24-4-1991 who found two injuries on the dead body caused by a sharp-edged weapon out of which injury No,1 was declared grievous and dangerous to life whereas injury No,2 was found to be simple in nature. The doctor found that the cause of death was shock and hemorrhage due to injury No,1 which was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the time elapsing between the injuries and death was between 1/2 hours and that between death and post-mortem examination was between 12 hours.
On the same day Muhammad Akbar Butt complainant (P.W.10) was medically examined by Dr. Sajid Ali Tirmizi (P.W.7) who had found three injuries on the person of the said witness. Injuries Nos.1 and 2 were caused by a sharp-edged weapon whereas injury No,3 was caused by a blunt weapon.
All the injuries were found to be simple in nature and fresh in duration. The medico-legal report in respect of Muhammad Akbar Butt complainant (P.W.10) is Exh.P.E.
5. After autopsy of Muhammad Aslam deceased and the medical examination of Muhammad Akbar Butt complainant (P.W.I0) Muhammad Boota, S -1./S.H.O. (P.W.13) took into possession the last-worn clothes of the complainant and the deceased vide recovery memos. Exh.P.H. And Exh.P.A.
Respectively. The said Investigating Officer then got a formal site-plan of the place of occurrence prepared through a draftsman. Subsequently, he arrested Muhammad Idrees accused on 6-5-1991 and the three other accused persons on 7-5-1991. On 14-5-1991 he affected the recovery of a blood-stained Chhuri P.4 from Muhammad Idrees accused and secured the same through recovery memo. Exh.P.F. Later on upon completion of the investigation the necessary challah was submitted by him in respect of this case.
6. At the commencement of the trial a charge with two heads under sections 302 and 337-A, P.P.C., was framed against the accused persons on 26-5-1992 who pleaded not guilty to the same and claimed a trial.
7.During the trial the prosecution produced as many as 13 witnesses in support of its case against the accused persons. Muhammad Akbar Butt complainant (P.W.10) and Ghulam Mustafa (P.W.11) furnished the ocular account of the incident. The complainant also deposed about the motive alleged by him in the F.I.R. Dr. Khaliq Ahmed Qureshi (P.W.9) and Dr. Sajid Ali Tirmizi (P.W.7) provided the medical evidence. Muhammad Aslam Butt (P.W.8) deposed about the recovery of a blood- stained Chhuti from Muhammad Idrees accused. Muhammad Boota, S.-I./S.H.O. (P. W. I /) stated about various stem taken by him du tpg ihe investigation of this case. The remaining evidence produced by the proa ution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. All the accused persons controverted all the allegations of , fact levelled against them by the prosecution, denied their involvement in the occurrence and professed their innocence in the matter. In answer to a question as to why he had been implicated in the present case Muhammad Idrees accused stated as follows:-- "The witnesses are closely related to the deceased, who were not present at all at the spot. They have deposed falsely because of close relationship. Muhammad Akbar complainant was not present at the spot. He maneuvered his injuries by friendly hand in order to become an eye- witness. As a matter of fact that the deceased Muhammad Aslam damaged the street in front of my house by his private arrangement and had blocked the way to my house. On my objection the deceased armed with a Ganti with which he had dug out the street trespassed into my house, hurled filthy abuses to my woman-folk and to myself and when I asked the deceased to behave he attacked upon me with his Ganti, but I luckily escaped unhurt and in order to exercise of my right of defense to person and property caused him injuries with a kitchen knife. Rest of the accused persons were not present at the spot. Had I not acted in such a way he would have caused my death."
' All the accused persons, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defense.
9. At the conclusion of the trial, as observed above, vide judgment, dated 18-5-1993 the, learned Additional Sessions Judge, Sialkot convicted Muhammad Idrees accused for an offence under section 302, P.P.C. And sentenced him to death. Muhammad Idrees accused was also convicted for an offence under section 337-F(i), P.P.C. And was sentenced to one year's R.I. The other three accused persons were, however, acquitted by the learned trial Court. Hence, the present appeal and the connected murder reference.
10. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
11. It has been argued by the learned counsel for the appellant that the eyewitnesses produced by the prosecution were inimically disposed towards the appellant and that they did not find any corroboration from any independent source. It has further been argued that the motive in this case had not been proved and, at any rate, the alleged motive was too weak to prompt the appellant to commit the murder of the deceased as alleged by the prosecution. It has further been maintained that the recovery of a blood-stained Chhuri from the appellant is concoction incarnate and that the medical evidence does not support the statements of the eye-witnesses. It has lastly been submitted that on account of failure by the prosecution to prove the alleged motive this is not a fit case for awarding the sentence of death to the appellant As against that the learned counsel for the State has submitted that the prosecution had proved the guilt of the appellant to the hilt through cogent and reliable evidence and that the sentence of death passed against the appellant did not warrant any interference by this Court in the circumstances of this case.
12. In a criminal case two questions are of paramount importance. Firstly, as to who has done it and, secondly, as to whether the person doing it had any legal or factual justification for doing it; It is settled law that the onus on the general issue as to who has done it is always on the prosecution which is to prove that it is the accused person who has perpetrated this offence and that the prosecution is to independently discharge this onus irrespective of any plea taken by the accused person. It is also equally settled law that if an accused person takes a general or a special plea then the onus to prove the circumstances supporting his plea is on that accused person and that the Court is to presume the absence of those circumstances. It is trite law that a fact which has been admitted may not be proved. Therefore, in a murder case where an accused person admits that the deceased died at his hands the prosecution remains under no obligation to discharge its onus on the general issue so as to prove on its own as to who has committed the offence. In the present case Muhammad Idrees appellant, in his statement recorded under section 342, Cr.P.C, has admitted that Muhammad Aslam deceased received fatal injuries at the hands of the appellant. In this view of the matter, the onus of the prosecution on the general issue stood automatically discharged. Even otherwise, Muhammad Akbar Butt complainant (P.W.7) was an injured witness whose presence at the spot at the relevant time during the incident could not be seriously disputed. In the absence of any serious background of or animosity between the parties the injured complainant (P.W. 10) and Ghulam Mustafa (P.W.I 0 had no reason to falsely implicate the appellant on a capital charge. The medical evidence produced by the prosecution and the recovery of blood-stained Chhuri at the instance of the appellant went a long way in providing support and corroboration to the statements made by the said eye-witnesses regarding the involvement of the appellant in the occurrence in question.
13. As regards the second issue as to whether the accused person had any legal or factual justification for assaulting the deceased the law quite clearly shifts the onus in that respect on the accused persons to prove to the satisfaction of the Court through independent evidence the circumstances justifying his action and for invoking a general or special plea in that regard. In the present case although Muhammad Idrees appellant had taken a plea of self-defense in his statement recorded under section 342. Cr.P.C. Yet he has miserably failed to bring on record any circumstances supporting the said claim of exercise of private defense by him. Neither any direct evidence has been produced before the learned trial Court in the shape of witnesses testifying to neither this effect nor anything has been elicited from the prosecution witnesses in their cross- examination in this regard. In this state of the record we have no option but to reject the defense plea of exercise of right of private defense.
14. For what has been observed above, we have no hesitation in concluding that the convictions of Muhammad Ides appellant recorded by the learned trial Court under sections 302 and 337-F(i).
P.P.C. Are unexceptionable and the same do not warrant any interference by this Court.
15. We have. However. Given our anxious consideration to the sentence to be passed against the appellant in the circumstances of this case. In this context we have noticed that the motive set up by the prosecution has not been proved by it through any cogent and reliable evidence. In the entire prosecution evidence it is Muhammad Akbar Butt complainant (P.W.10) alone who has stated about the motive incident of two days before the present occurrence, and that too in general and non-specific terms. No other independent evidence or circumstance has been brought on the record of this case to support the said motive. Even otherwise the motive set up by the prosecution appears to be doubtful inasmuch as the site plan (Exh.P.D.) of the place of occurrence produced by the prosecution shows that the accused persons could not reasonably be expected to get offended on the stated plan of the complainant party to get the portion of the street in front of their shop privately improved. The accused persons could not be affected by the proposed action of the complainant party as their houses or places of business were nowhere to be found near the said portion of the street. This fact is itself sufficient to expose not only the hollowness of the motive set up by the prosecution but also its weakness to prompt the accused to commit a murder as a result thereof. This factor helps us entertain a doubt that the appellant might have committed the murder of the deceased either for some other unknown reason or in circumstances which are shrouded in mystery. To us this is a sufficient reason not to award the extreme penalty of death to the appellant in this case.
16. For the aforesaid reasons, we uphold the conviction of Muhammad Idrecs appellant for offences under sections 302 and 337-F(i). P.P.C. Recorded by the learned trial Court. However, the sentence of death passed against him under section 302, P.P.C. Is set aside and the same is converted into imprisonment for life by way of Ta'zir under section 302(h), P.P.C. It is further ordered that the appellant shall be given the benefit under section 382-B, Cr.P.C, and his sentences under section
302. P.P.C. As well as section 337-F(i). P.P.C. Shall run concurrently. It is noticed that the learned trial Court had not directed payment of any compensation by the appellant to the heirs of Muhammad Aslant deceased and that so far event this Court had not issued any notice to the appellant in that respect. Therefore, we are not inclined to issue any notice in that regard to the appellant at this late stage. In this context we arc also not unmindful of the fact that the appellant's financial position does not appear to be sound as the present appeal is a jail appeal and a learned counsel had been appointed to represent him at State expense. If he has no sufficient resources to engage the services of a counsel in a case where his own neck is on the line and his very life is at stake then probably he would not be in a position to pay any decent compensation to the heirs of the deceased under section 544-A. Cr.P.C. Either.
17. As the sentence of death passed against the appellant has been converted by us to one of imprisonment for life under section 302(b). P.P.C.. Therefore. Murder Reference No,157 of 1993 seeking confirmation of the sentence of death has to be answered in the negative.
18. Sentence of death not confirmed.
Sentence reduced.