' MIAN MUHAMMAD NAJUM-UZZAMAN, J.--Muhammad Amin appellant alongwith his co-accused namely Muhammad Zahoor, Muhammad Yar and Lal was tried for the murder of Muhammad Aslam deceased by the learned Additional Sessions Judge, Vehari, who vide judgment dated 27-2- 1994 acquitted the co-accused of the appellant by giving them the benefit of doubt whereas convicted the appellant under section 302-A, P.P.C. And awarded him death sentence as Qisas.
2. Challenging his conviction and sentence the appellant filed the instant criminal appeal while the learned trial Court has also made a reference under section 374, Cr.P.C. For the confirmation of death sentence. Both these matters are being disposed of by this judgment.
3. Case F.1.R. No, 157 of 1991 Exh.P.A/1 was registered at Police Station Luddan, District Vehari on 17-6- 1991 upon the statement of Ayyaz Khan P.W.6 with regard to the murder of one Muhammad Aslam which took place in the area of village Lakhar Saldeera, District Vehari.
3-A. The precise facts of the prosecution case as narrated in the F.I.R. Are that on 14-6-1991 at 8-00 a.m Muhammad Aslam brother of the complainant was ploughing the land with tractor in which a tape-recorder was installed and the same was playing. The complainant was sitting on the Banna.
Muhammad Yar and Muhammad Zahoor accused reached the spot and objected to the playing of tape-recorder and requested that the same should be switched off. The request of the accused was rejected whereupon the accused threatened to teach a lesson if tape-recorder was played again. It has further been alleged in the F.I.R. That his brother Muhammad Aslam went to Adda Kachi Pakki taking the tractor with him for welding purpose. At about 5-00 p.m. He was coming back to the village and when he reached near the Bhaini of Shera Jhaidoo, Zahoor, Muhammad Yar, Muhammad Amin (appellant) and Laloo, armed with Sotas way laid him and pulled down Muhammad Aslam from the tractor. Muhammad Zahoor accused inflicted Sota blow at the head of Muhammad Aslam whereupon he fell down. Muhammad Yar accused caused second Sota blow to Muhammad Aslam hitting his chest. Muhammad Amin appellant inflicted Sota blow at the back of Muhammad Aslam. Laloo accused gave sota blow on the right eye, and second on the nose of Muhammad Aslam which started bleeding. The complainant, Fateh Muhammad and Mushtaq were going towards Kachi Pakki Adda at that time and they also witnessed the occurrence. Upon the intervention of the witnesses the accused persons fled away from the scene of. Crime.
Muhammad Aslam injured was taken to Luddan Hospital in unconscious condition. The Medical Officer after medical examination referred the injured to D.H.Q. Hospital, Vehari and there against the Medical Officer D.H.Q. Hospital, Vehari, referred Muhammad Aslam injured to Nishtar Hospital, Multan where he was admitted. The complainant on 17-6-1991 made a statement Exh.P.A before Abdul Khaliq S.I. P.W.8 on the basis of which formal F.I.R. Exh.P.A/1 was registered.
4. The Investigating Officer on 17-6-1991 visited the place of occurrence and prepared the site-plan Exh.P.Q. At about 2-00 p.m. In the night he received an information with regard to the death of Muhammad Aslam at Nishtar Hospital, Multan whereupon he reached the hospital on the following day and after examining the dead body he prepared the inquest report Exh.P.0 and sent the dead body for post-mortem examination to the mortuary through Taj Muhammad F.C. P.W.5. After the post-mortem examination the blood-stained clothes of the deceased i,e, Patka P.2 and Chadar P.1 were produced by Taj Muhammad before the Investigating Officer which were taken into possession vide recovery memo. Exh.P.K. The Investigating Officer arrested Muhammad Amin Appellant, Muhammad Yar and Muhammad Zahoor accused on 19-6-1991 when they were present at Adda Kachi Pakki. During investigation on 20-6-1991 Muhammad Zahoor accused led to the recovery of Sota P.3 from his residential place which was taken into possession vide recovery memo. Exh.P.L. Muhammad amin appellant led to the recovery of Sota P.4 from his residential house which was taken into possession vide recovery memo. Exh.P.M. Muhammad Yar accused led to the recovery of Sota P.5 which was taken into possession vide recovery memo. Exh.P.N. Similarly on 21-6-1991 Lal accused led to the recovery of Sota P.6 from his house which was taken into possession vide recovery memo. Exh.P.O. The Investigating Officer also got prepared site-plan from Zabat Ullah Patwari which was Exhs. P.Q, P.Q/1 and P.Q/2. After completing the investigation the challan was submitted before the trial Court.
5. To prove its case the prosecution had produced eight witnesses before the trial Court.
6. Dr. Jamil-ur-Rehman P.4 medically examined Muhammad Aslam deceased when he was alive and found the following injuries on his person:--
(1) A lacerated wound 5 c.m. And 1.5 c.m. In front of the head about 9 c.m. From right eyebrow, It was skin, scalp bone deep. Bone was exposed.
' A bruise 8 c.m. x 2 c.m. On back of left chest and loin.
' A bruise 5 c.m. x 3 c.m. In front of left thigh about 19 c.m. Above left knee joint.
' Swelling and blackening of right eye in area of about 5 c.m. x 6 c.m.
' Bleeding from nose on right side.
' After the death of Muhammad Aslam the post-mortem examination was conducted by Dr. Iqbal Ahmad Chaudhry who observed the following injuries on his person:
(1) An antero posterior stitched wound in the sagital line in the middle of the head with two stitches in position, the wound started 8 c.m. Above the bridge of the nose.
(2) A dark coloured bruise on the back of left chest and loin was seen.
(3) A dark coloured contusion with multiple abrasions in the center of left thigh in front was seen.
(4) Dark coloured bruise around the left and right eyes was seen.
' In the opinion of doctor death occurred due to cerebral haemorrhage, shock and injury to the vital organs (brain) which was caused by injury No,1 and was sufficient to cause the death in the ordinary course of nature.
7. To prove the ocular account Ayyaz Khan complainant P.W.6 had appeared before the Trial Court and supported the prosecution case. In support of the complainant prosecution had also produced Mushtaq Ahmad P.W.7. This witness also saw the recovery of weapons effected during the investigation from the appellant as well as from other co-accused. The other witnesses relied upon by the prosecution were Khalid lqbal H.C/ PW.1 who recorded the formal F .1. R . Exh . P. A/1 .
Muhammad Amin P. W.2 identified the dead body of Muhammad Aslam at Civil Hospital, Multan Taj Muhammad P.W.5 (F.C) escorted the dead body of Muhammad Aslam from cold room Nishtar Hospital. Multan to Civil Hospital, Multan for the purpose of post-mortem examination. He also produced the last worn clothes of the deceased before the Investigating Officer. Since Zabat Ullah Patwari had expired Muhammad Younis P.W.9 appeared and identified the handwriting of Zabat Ullah Patwari on the site-plan Exhs.P.Q., P.Q/1 and P.Q/2. Lastly Abdul Khaliq S.I. P.W.8 had conducted the investigation as narrated earlier.
8. After close of the prosecution the trial Court examined the appellant as well as his co-accused under section 342, Cr.P.C. The appellant while answering to the question do you want to say anything else replied as follows: "I am innocent. In fact I had seen Mst. Zahooran (my sister) and Muhammad Aslam (deceased) present in objectionable condition in the former's Kotha at our Bheni when I went to her room in order to pick up a hammer to pig in Munni which was already in my hand to tether my buffalo. The door of the Kotha of Mst. Zahooran Bibi was closed. I pushed it to get in and found Mst. Zahooran Mai and Muhammad Aslam (deceased) sitting on the cot making love. Muhammad Aslam (deceased) on seeing me immediately got up and rushed at me to push me aside and get out of the room and having lost my self-control because of the provocation, which received from his act, I gave a Munni blow on his head. Muhammad Aslam (deceased) while pushing me fell down on the ground and I also fell there hitting my head in the door of the Kotha. Muhammad Aslam (deceased) took to his heals and Mst. Zahooran Mai also succeeded in running away as I could not compose myself immediately. No other person was present as all the members of our family had gone to Darbar Nadir Wali to attend a Mela there. The police did not take action against anybody for so many days saying that Muhammad Aslam was a bad man and he had received injury but after the death of Muhammad Aslam, this absolutely false case was made up against us."
' The appellant or his co-accused did not produce any evidence in defence nor they made any statement under section 340(2). Cr. P C .
9. The learned trial Court while disbelieving the entire prosecution case acquitted Muhammad Zahoor. Muhammad Yar, and Lal accused by giving them the benefit of doubt Whereas convicted the appellant and in view of the statement made by him under section 342, Cr.P.C. And awarded him death sentence as narrated in the earlier part of the judgment.
10. The learned counsel for the appellant argued that the entire prosecution case was disbelieved by the trial Court and the conviction had been based solely on the statement made by the appellant before the trial Court; that it was incumbent upon the Court either to accept the statement in totality or rejected the same. Learned counsel further argued that the trial Court had illegally bifurcated the statement of the appellant whereby he has accepted that he committed the murder of Muhammad Aslam by giving him a single blow with Munni on his head but the latter part of the statement of the appellant under section 342, Cr.P.C. That he killed the deceased under a grave and sudden provocation as he had seen the deceased sitting on the cot and making love with Mst. Zahooran Mai (his sister) was discarded by the trial Court on the ground that the burden of proving grave and sudden provocation was on the appellant which he failed to discharge. This finally argued that the prosecution cannot fall back on the plea of an accused to prove his case.
Thus, finally argued that the appellant was also entitled to the benefit of doubt in the circumstances of the case.
11. Learned counsel for the complainant as well as the State had vehemently opposed the arguments of the learned counsel for the appellant on the ground that the guilt had been admitted by the appellant, thus, he should suffer for the same and that the judgment of the trial Court was in accordance with law.
12. We have heard the arguments advanced by the learned counsel for the parties and perused the record. It is an admitted position in the case that the trial Court did not believe any piece of evidence relied upon by the prosecution, however, relying upon the first part of the statement of the appellant under section 342, Cr.P.C. That he killed Muhammad Aslam the Court convicted him under section 302-A, P.P.C. And awarded him death sentence as Qisas. The later part of the statement of the appellant under section 342, Cr.P.C. That he killed the deceased under grave and sudden provocation having seen his sister making love or a cot with the deceased Muhammad Aslant was discarded by the trial Court on the ground that the burden of proving the plea of grave and sudden provocation was on the appellant which he had failed to discharge.
13. It is a settled proposition of law that the prosecution is bound to prove its case against the accused beyond reasonable doubt irrespective of any plea raised by the accused in his defence.
Failure of prosecution to prove the case against the accused entitles the accused to an acquittal.
The prosecution cannot fall back on the plea of an accused to prove its case. Where the prosecution succeeds in proving its case against the appellant beyond reasonable doubt then the stage arrives for the consideration of plea of accused in his defence and the question of burden of proof becomes relevant. Before, the case is established against the appellant by the prosecution the question of burden of proof on the accused to establish his plea in defence does not arise. It is also established law that if the Court decides to convict an accused person on the basis of his confessional statement made by him under section 342, Cr.P.C. Then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence. It is quite clear from the orders of the trial Court, that the conviction of the appellant has been based solely on the basis of his admission/statement under section 342, Cr.P.C. Thus it was not open to the trial Court to have relied upon only that part of the statement under section 342, Cr.P.C. In which he admitted having killed the deceased and discarded that part of the statement in which he stated that it was done under grave and sudden provocation as he had found the deceased making love with his sister. The Court could either accept whole of the statement of reject the same. It was not open for the Court to take exception to the part of the statement which stated that he had seen his sister Mst. Zahooran Mai making love with the deceased. In the light of the settled proposition of law the orders of the trial Court is not sustainable in the eyes of law.
14. According to the prosecution's own case the appellant being armed with Sota gave a blow on the back of Muhammad Aslam deceased whereas his co-accused namely Muhammad Zahoor gave Sota blow on the head of the deceased Muhammad Yar accused inflicted Sota blows on the chest of the deceased and Lal accused gave blow on the right eye and those of the deceased. The trial Court by disbelieving the prosecution story, had acquitted all the co-accused of the appellant by giving them the benefit of doubt. The case of the appellant is not distinguishable from his co- accused and the appellant is also entitled to the benefit of doubt. Accordingly, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. The appellant shall be released although, if not required in any other case.
15. The Murder Reference is answered in the negative.