' GUL MUHAMMAD KHA, J.--- Nazir Hussain appellant, aged 24, was convicted under section 302, P.P.C. For causing death of Muhammad Nazir aged 38/40 years and was sentenced to death vide order dated 5th June, 1976, of the learned Sessions Judge, Rahimyarkhan. He was also fined a sum of Rs, 2,000 or to suffer one year R.
1. In case of default. The fine if paid, was to be given to the heirs of the deceased. He has now appealed to this Court against that order. A reference for confirmation of death sentence has also been received from the learned Sessions Judge, Rahimyarkhan. Both the cases shall be decided by this order.
2. The occurrence took place on 10th September, 1975, at 4-15 p. m. Near the shop of Muhammad Amin P. W. 9, in Liaqutpur town, four furlongs from Liaqutpur Police Station. P. W. 9 Muhammad Amin a brother of the deceased lodged the report Exh. P. A. At the Police Station at 4-45 p. m. The same day. Fayyaz Ahmad A. S. I. P. W. 10 recorded his statement and registered a case under section 302, P. P. C. The case of the prosecution was that on 10th September, 1975, at about 4-15 p. m. The complainant, his brother Muhammad Munir and a customer Gulzar Hussain P. W. 8 were in their shop while deceased Muhammad Nazir, their brother, was lying on a cot just outside the shop. All of a sudden the complainant and others in the shop heard alarms raised by Muhammad Nazir. They rushed out to see that Nazir Hussain appellant was stabbing Muhammad Nazir. They also raised alarm but meanwhile appellant ran away after causing injuries. Muhammad Nazir later succumbed to the injuries in the hospital.
3. The accused was arrested on 11th September, 1975. He got recovered a bloodstained knife (P. 5) from his chaubara. It was found to be stained with human blood by the Chemical Examiner and Serologist. Dr. Ali Muhammad examined the dead body of Muhammad Nazir on 11th September 1975 at 9 a. m. And found the following injuries on his person :-
(1) 1 x oblique incised wound on Rt. Mid chest anteriorly 6' downward and laterally from the Rt.
Nipple. Upper end of the wound is blunt.
(2) x it' horizontal incised wound on 3rd intercostal space close to sternum left side. Lateral end of wound is blunt.
(3) 1 x vertical incised wound on dorsum of 4th metacarpal bone of left hand.
' As a result of injury No, I the wall of the chest and liver were cut through and through, pleura, periteneum diophragm, stomach and colon were also cut. Pericardial was cut (in heart) and cortex had been incised because of injury No, 2.
4. The motive of this offence as stated in the F. I. R. And in their depositions by the witnesses was that one year prior to the occurrence Akhtar Hussain, a real brother of the appellant and his wife's brother, had abducted a woman from Sheikhupura. Police from Sheikhupura who came for investigation to Liaqatpur stayed with the deceased and the complainant. There the appellant and his brother Akhtar Hussain were summoned and interrogated. Akhtar Hussain was also taken to Hyderabad where the abductee was living with his wife's brother. Akhtar Hussain tried to flee from there but broke his leg in the process and became crippled. According to the prosecution witnesses the appellant all along nourished a grudge against the deceased and his brothers who according to him were responsible for that.
5. The learned counsel for the appellant took us through the entire relevant record and submitted that though the appellant did not deny killing Muhammad Nazir yet the circumstances of the case clearly show that either the incident had occurred due to some grave and sudden provocation offered to the appellant or it was a case of self-defence. Reference was also made to the statement of the appellant recorded under section 342, Cr. P. C. Wherein, in answer to question No, 6, he took up the same plea as under : "False case has been made against me and the real facts are that my brother had abducted a relative of the deceased. Sheikhupura Police came at Liaquatpur and stayed with the deceased and the complainant. The deceased was aggrieved with us due to the aforementioned abduction.
On the day of occurrence the deceased was lying on a cot in front of the shop. As I was passing on the road in front of him he stopped me and told me that we were abducting other women whereas my wife is a taxi and that we were beghairat. Thereupon quarrel ensued between us. The deceased took out knife Exh. P. 5 from his dub and attacked me saying that he will kill me, I snatched the knife from him but be continued to snatch it back in order to kill me, apprehended that he will kill me after snatching the same so in order to defend myself and under grave and sudden provocation I gave him knife blows. When he stopped his attempt of snatching I left him and ran away. P. Ws.
Came at the time when I had already injured the deceased and was about to run."
6. After hearing the learned counsel for the parties and going through the record we are of the view, as will be discussed later, that the learned Sessions Judge based his order on properly scrutinized ocular evidence of natural and independent witnesses. The learned counsel for the appellant laid much emphasis on the motive ascribed for the occurrence and submitted that not only was it unreliable but inspired no confidence either. He pleaded that the existence of the appellant's plea about the grave and sudden provocation or self-defence could be reasonably spelt out from the situation and may, therefore, be believed. He also contended that in any case the evidence on record and the circumstances attending to this case did not justify a death penalty.
7. It is to be noted that a motive is not always necessary for establishing' the guilt of an accused.
Reference be made to the observations of the Supreme Court in Akhtar Syed v. State (1) which reads as under :- "If the evidence is believed then it is clear that the appellant caused the injuries to the deceased at a dangerous part of the body with a formidable and inherently deadly weapon like a churri one foot long proclaiming that he was taking the life of the deceased from the bottom. In such circumstances there could possibly be no other intention but the intention to kill.
' Indeed the injury was so grave that even with timely medical aid the deceased could not have been saved. Even without the avowed intention of the appellant it is clear that anyone causing such an injury could only have done it with the intention of causing death and no other intention."
(1) 1968 P Cr. L J 1339 However, a motive has been proved in this case by all the witnesses. The appellant also admitted some of the facts constituting it, in his reply to question No,
6. The fact as to how much effect a particular motive has on a particular person is very difficult to assess. In any case even a weak motive was held by the Supreme Court not a good ground to reject the direct ocular testimony of witnesses in Shafiq v. State (1).
8. The failure of the prosecution to prove ownership of the knife was attacked. The defence version was that the knife belonged to the deceased but it was snatched from him by the appellant after a scuffle which followed curtains taunts by the deceased and exchange of hot words between him and the appellant. It was submitted that as the prosecution did not show as to how the incident originated the version given by the appellant should be accepted as correct. The argument raised in support of this plea was that though the appellant had been living for about a year in the vicinity of the shop of the deceased, yet no untoward incident ever took place earlier. It was further pleaded that the fact that Sheikhupura police stayed with the deceased during investigation of abduction case, rather showed that it was the deceased who was intimately connected with the abductee's family and he could have a grudge against the appellant. Lastly it was submitted that, in any case, the appellant would not have dared to attack the deceased of his own, particularly when he was lying in front of his own shop and his brothers were working inside. A few decided cases were also relied upon to submit that as the circumstances preceding the incident were not clear and rather shrouded in mystery the statement of the accused should have been believed in to and acted accordingly. The observations made in Muhammad Idrees v. State (2) were that in the absence of any direct or indirect evidence from the prosecution side to prove circumstances of the murder, the Court has to perforce fall back on the statement of the appellant himself. The situation in the case in hand is not that disappointing. The prosecution did give its reasons which do fit in the situation. The explanation rendered by the appellant, ho ever, cannot be supported from the other evidence as shall be discussed later. The other contentions raised by C the learned counsel for the appellant also have no force. The knife had been recovered at the instance of the appellant from his Chaubara. The fact that it was not snatched from the deceased shall be discussed later. Further the prosecution did supply a motive and have given an account of their version. The fact that it was a cold blooded murder and that no exception to section 300, P. P. C.
Has been proved to apply is discussed in the following paragraph.
9. As to the plea of grave and sudden provocation or self defence the onus is on the accused though the responsibility of the prosecution to prove their case is in no way diminished. After confessing the killing of the deceased it was for the accused to have shown some evidence or circumstance to shift his onus back to the prosecution. The law on the point is contained in section 105 of the Evidence Act which reads as under :- "105. 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, or within any special exception or provision contained in any other part of the same {{TABLE}}
(1) 1968 P Cr. L J 1251 (2) PLD 1965 Lah. 553 Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that by grave and sudden provocation, he was deprived of the power of self control. The burden of proof is on A.
(c) ........................... {{TABLE}} Therefore, a mere assertion in the statement of the accused or a suggestion in cross-examination on his behalf, is not enough. The Federal Court in Safdar All v. Crown (I), while considering such pleas and the scope of section 105 of the Evidence Act observed that section 105 of the Evidence Act has to be read not as contradictory of the principle, that an accused person must be presumed to be innocent unless proved guilty, but consistently with it. The provision of law according to the Federal Court was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception.
The observation directly applicable to the case in hand reads as under :--- "It is, of course, not possible to arrive at any conclusion that the accused person acted as he alleges he did, on a consideration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extent to which the charges may be held to have been proved as it is to examine the prosecution case side by side, with the defence case, in reaching a decision on the accused's special pleading "
' The above rule was followed by the Supreme Court in State v. Mushtaq Ahmad (2). We shall, therefore, scrutinize the evidence on record in the light of the above rule.
10. The only contribution made by the appellant in discharging his onus, in the case in hand, is his bare statement and a similar suggestion to P. W. 8 and P. W.
9. No evidence was led to support the plea. The prosecution has, however, proved the recovery of knife at his instance and the appellant too admitted that. The report of the Chemical Examiner and Serologist proved that the knife was stained with human blood. The death due to stabbing done by the accused and the presence of the eye-witnesses have been admitted by him. Admittedly the deceased was lying on a cot about 19 feet from the place where the eye-witnesses were present. If we (I) PLD 1953 FC 93 (2) PLD 1973 SC 418 accept the version given by the appellant, the witnesses would have reached the place of occurrence in a moment, and in any case, before the alleged struggle for snatching knife from the deceased started, as they would easily hear the wrangle or altercation preceding it. They, however, heard only the alarm and as soon as they went out, the appellant had already inflicted three blows and was pulling out knife from the abdomen of the deceased. In the circumstances it cannot be believed that the deceased taunted the appellant or there was exchange of hot words or quarrel or any struggle to snatch knife from the deceased.
11. The prosecution version is also confirmed by the description of the injuries as given by the doctor read with the pictorial diagram Exh. PL/1. It shows that injury No,
2. Is a horizontally-incised-wound on the third intercostal space close to sternum. Ordinarily such a horizontal injury at that part of the body could be caused if the deceased was lying and not standing. Further, excepting the third injury, which is on the left hand of the deceased and most probably caused after the first had been caused in an effort of warding off the second, there were no other marks of struggle. The plea of the accused is further belied by the fact that if he after struggle snatched the knife from the deceased, then there must have been some injuries on his person or hands also but there was none, not even a scratch. Dr. Ali Muhammad, who had examined the dead body of Muhammad Nazir stated that both the injuries could be caused on the deceased while lying on bed. The cuts and the depths of injuries 1 and 2 which did so much damage as stated in para. 3, show to have been caused by powerful blows given freely without obstruction and with vengeance. Both the injuries were sufficient in the ordinary course of nature to cause death.
12. We have, therefore, come to the conclusion, after scrutinizing the entire record, that there is nothing to show that the appellant had discharged his onus even to the slightest extent to conclude that he inflicted injuries either on grave and sudden provocation or in self-defence. The scrutiny of the entire evidence on the other hand shows that there is no scope for any exception, rather it was a cold blooded murder. We, therefore, agree with the learned Sessions Judge that the murder was intentional and premeditated. This appeal is, therefore, dismissed. The conviction of the appellant is maintained and the death sentence awarded to him by the learned Sessions Judge is hereby confirmed.