JUDGMENT ASIF SAEED KHAN KHOSA, J.- Sadiq Hussan appellant was convicted by the learned Additional Sessions Judge-1, Bhakkar for an offence under section 392, P.P.C. Vide judgment dated 16.11.1994 and was sentenced to death. He was also ordered to pay a sum of Rs. 10,000/- to the heirs of Khuda Bakhsh deceased by way of compensation under section 544-A, Cr.P.C. Sadiq Hussan has challenged his conviction and sentence before this Court through Criminal Appeal No. 566 of 1994. Hussan Bakhsh complainant has also filed Criminal Revision No. 569 of 1994~ before this Court seeking enhancement of the amount of compensation ordered by the learned Trial Court to be paid by Sadiq Hussan appellant and also seeking imposition of. a sentence of fine against him. Sadiq Hussan appellant was, however, acquitted by 'the .Learned Resident Magistrate/Magistrate First Class, Darya Khan of the Charge under section 13 of the Arms Ordinance, 1965 vide judgment dated 29.2.1996. One of the prosecution witnesses in that case namely Noor Muhammad has filed Criminal Appeal No. 196 of 1996 before this Court seeking setting aside of that acquittal. We have heard all these matters alongwith Murder Reference No. 259 of 1994 seeking confirmation of the sentence of death passed against Sadiq Hussan appellant. We propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution case unfolded* in the F.I.R. Hussan Bakhsh complainant was a resident of Tibba Mir Murtaza Shah situated about 12 miles towards the- North of Police Station Darya Khan, District Bhakkar. Hussan Bakhsh complainant jointly owned a watercourse with his nephew Sadiq Hussan appellant' There was a Tahli/Sheesham tree grown on that watercourse towards the land belonging to the complainant party and for about one month prior to the present occurrence a dispute was ' going on between the complainant party and the appellant over that Sheesham tree. The brotherhood of the parties had often tried to settee that dispute peacefully but the complainant's son namely Khuda Bakhsh, aged about 17/18 years, was insisting that he would not allow the appellant to cut that tree as the same was situated towards the side of the complainant's land. At about 01.00 p.m. On 27.11.1993 the complainant's son Khuda Bakhsh was digging the above-mentioned watercourse while Hussan Bakhsh complainant, Noor Muhammad and Qamar Abbas PWs were mending the boundary of their field of wheat at a distance of about one Killa from Khuda Bakhsh. Suddenly Sadiq Hussan appellant, armed with a chhurri, came there raising lalkaras that he would teach a lesson for not giving him the Sheesham tree. Upon seeing the appellant approaching him the complainant's son Khuda Bakhsh ran towards the complainant party but I he was overtaken by the appellant who then gave him a chhurri blow on the left side of his chest. Upon receipt of that injury Khuda Bakhsh fell down. The complainant and the other PWs challenged the appellant who then fled from the place of occurrence. Soon after that the complainant and his companions took Khuda Bakhsh to Civil Hospital, Darya Khan in an injured condition^ but he succumbed to his injury upon reaching the hospital. Thereafter, leaving the dead-body of his son in the hospital in the care of Murid Abbas and Ghulam Abbas PWs, Hussan Bakhsh complainant left for reporting the matter to the police.
3. Upon the statement of Hussan Bakhsh complainant F.I.R. No. 179 was registered at Police Station Darya Khan, District Bhakkar at 3.00 p.m; on the same day, i.e. 27.11.1993 for ah offence under section- 302, P.P.C. That F.I.R. Was recorded by Safdar AW, Inspector (PW.9).
4. After recording the F.I.R: Safdar Ali, Inspector (PW9) took up the investigation of the case and proceeded to Civil Hospital, Darya Khan -whereat he prepared an injury statement and an inquest report in respect of the dead-body of Khuda Bakhsh. He then dispatched the dead-body to the mortuary for autopsy. Thereafter he went to the place of occurrence and secured blood-stained earth therefrom.
5. Post-mortem examination of the dead-body of Khuda Bakhsh was conducted by Dr. Abdul Razzaq Ghori (PW 1) at 7.15 a:m. On 28.11.1993. The doctor had found two injuries on the dead-body both of which were ante-mortem and had been caused by sharp-edged weapon. The cause of death was due to injury No. 1 which had caused server haemorrhage and shock. The injuries were also sufficient to cause death in the ordinary course of nature. Probable time elapsing between the injuries and death was within ten minutes whereas the same between the death and post-mortem examination was within seventeen hours.
6. After the post-mortem examination of the dead-body Safdar Ali, Inspector (PW 9), the investigating officer, received the last-worn bloodstained clothes of the deceased on the same day. On 29.11.19.93 he arrested Sadiq Hussan appellant and on the same day he got a chhurri recovered from the appellant's possession. Subsequently on 30.11.1993 he got a formal site-plan of the place of occurrence prepared* by a Patwari. Therefore the investigation of this case was entrusted to Faqir Muhammad, S.f. (PW10) who recorded the statements of witnesses, completed the other formalities and submitted-a challan against the appellant;
7. At the commencement of the trial the learned Trial Court framed a Charge against the appellant for an offence under section 302, P.P.C. To which the appellant pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as ten witnesses-in support of its case Against the appellant. Hussan Bakhsh complainant (PW 6) and Qamar Abbas (PW7) furnished the ocular account of the incident. Hussan Bakhsh complainant (PW6) also deposed about the motive.
Qamar Abbas (PW 7) also stated about the recovery of a chhurri from the appellant's possession during the investigation. Dr. Abdul Razzaq Ghori (PW 1) provided the medical evidence. Safdar Ali, Inspector (PW9) and Faqir Muhammad, S.I. (PW 10>stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In his statement recorded under section 342, Cr.P.C. Sadiq Hussan appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. However, while answering a question as to why he had been implicated in this case and also as to why the prosecution witnesses had deposed against him the appellant had stated as follows:~ "The P.Ws. Are related inter-se and also with the deceased. A matter of fact on the day of occurrence at about 2.20 p.m. Khuda Bakhsh deceased was digging the watercourse near the root of Sheesham tree and was attempting to cut the Sheesham ' tree. I reached there and forbade him not to cut the tree. In the meanwhile an altercation took place between me and Khuda Bakhsh deceased. Khuda Banish deceased raised Kassi and was going to cause injury on my person but he misled and the same was hit by his* own knee. Khuda Bakhsh deceased again tried to give second Kassi blow to me and I in may self-defence gave a sickle blow on-the person of Khuda Bakhsh deceased which at the time of occurrence I had in may hands. The complainant and the P.Ws. Were not present at the spot."
Sadiq Hussan appellant, however, did not make any statement on oath under section 340 (2), Cr.P.C. And also did not produce any evidence in support of his version of the incident.
10. At the conclusion of the trial the learned Additional Sessions Judge-I, Bhakkar found the case of the prosecution against the appellant to have been proved beyond reasonable doubt and, thus, he convicted and sentenced the appellant as mentioned and detailed above. In respect of the alleged recovery of a chhurri from Sadiq -Hussan appellant during the investigation of this case the appellant was also tried for an offence under section 13 of the Arms Ordinance, r%5 but was acquitted of the charge by the learned Resident Magistrate/Magistrate First Class, Darya Khan vide judgment dated 29.2.1996. Hence, the appeal of the appellant, revision petition by the complainant, Noor Muhammad's appeal against the acquittal of Sadiq Hussan the case under the Arms Ordinance, D'Andre the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellant as well as the learned counsel for the State, the complainant and Noor Muhammad and have also gone through the record with their assistance. It has been argued by the learned counsel for Sadiq Hussan appellant that the presence and participation of Sadiq Hussan appellant hi the occurrence in question has been accepted by the appellant and the version of the incident put forth by him appeared to be more plausible than that of the prosecution. Thus, according to him Sadiq Hussan appellant had acted in exercise of his right of private defence and had committed no offence. As against that the learned counsel for the State and the complainant have maintained that the guilt of Sadiq HusSain appellant had been proved to the hilt through cogent and reliable evidence and also that the version of the. Incident advanced by Sadiq Hussan appellant was not supported by any evidence.
The learned counsel for Noor Muhammad has further argued that Sadiq Hussan appellant also ought to have been convicted for an offence under section 13 of the Arms Ordinance, 1965 as the said Charge also stood amply proved against him before the learned Trial Court.
12. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had indeed succeeded in proving its case' against Sadiq Hussan appellant beyond reasonable doubt as far as the murder of Khuda Bakhsh Was concerned. It was a case of a daylight occurrence and the F.I.R. Regarding the same had been lodged with sufficient promptitude where Sadiq Hussan appellant was specifically named as the sole perpetrator of the offence in question. Hussan Bakhsh complainant (PW 6) is an uncle of Sadiq Hussan appellant and, in the absence of any background of serious ill-will or enmity between them, he was not likely to falsely implicate the appellant on a capital charge. Qamar Abbas (PW 7) was never shown to have any role in the dispute between the deceased and the appellant and, therefore, he too had no ostensible reason to falsely depose against the appellant in a case of this nature. It is true that both the said eye-witnesses produced by the prosecution were closely related to the deceased but mere relationship with the deceased has never been found to be sufficient per se to discard the statements of such witnesses. Both these eye-witnesses had made consistent and straightforward statements before the learned Trial Court regarding the occurrence in question and, therefore, they have inspired our full confidence. The motive stated by. Hussan Bakhsh complainant had also found support from the statement made by the appellant under section 342, Cr.P.C. Which had also accepted the Sheesham tree to be the bone of contention between the parties which led to the present occurrence. The allegation against the appellant regarding causing an injury on the chest of the deceased with a chhurri stood amply supported by the medical evidence. Thus, the ocular account of the incident had received sufficient corroboration as well as support from the other circumstances of this case. The learned Trail Court's discarding of the evidence of recovery of. The weapon of offence from the appellant, thus, did not irretrievably shake the prosecution's case against the appellant. In this context was are also mindful and cognizant of the fact that the appellant had -admitted his presence and participation in the occurrence in question.
13. ''As regards the version of the incident put forth by Sadiq Hussan appellant in his statement recorded under section 342, Cr.P.C. As also through the: suggestions -put to the eye-witnesses produced by the prosecution we have carefully examined the same but have found ho reason to accept the same. It has been noticed by us in that context that admittedly the appellant did .Not receive any injury during the occurrence in question.
He did not produce any evidence in support of his version either before the investigating officer or before the learned Trial Court. He had also opted not to make any statement on oath under section 340(2), Cr.P.C. Before the learned Trial Court. It is settled law that whenever an accused person takes up a special or a general plea in his defence then the onus of proof shifts on to him to establish the-said plea through positive and affirmative evidence of his own and also that the Court is to presume the absence of circumstances supporting his plea. No such positive or affirmative evidence had been produced before the learned Trial Court by the appellant in the present case. There was ho evidence available on the record of this case even to draw an inference in favour of the appellant in respect of his plea. The doctor who had conducted the post- mortem examination of the deceased had not even been asked by the defence as to whether injury No. 1 sustained by the deceased counsel have been caused by, a sickle as claimed in the defence plea. Our own observation regarding the nature and description of the said injury has convinced us that the said injury could not be a result of a sickle blow. Apart from that the capital attempted to be drawn by the defence on account of injury No. 2 suffered by the deceased and the failure of the prosecution to explain the same has been found by us to be misconceived and misplaced. ,According to the doctor both the injuries sustained by the deceased had been caused by one and the same sharp-edged weapon. Thus, there was no material available on the record to substantiate the appellant's version that injury No. 2 had been caused to the deceased through a kassi being wielded by the deceased himself. For all these reasons we have found that the version of the incident put forth by the'' defence had remained for being substantiated or from being made to look probable.
14. However, notwithstanding discarding of the appellant's plea regarding- exercise of right of private defence by him, we have carefully scrutinized and examined the facts-of this case while keeping both the versions put forth by the rival parties in juxtaposition. We have, thus, tried to reconstruct the story of the occurrence in view of the probabilities of the circumstances. To us it was unlikely that despite availability of his three able-bodied close relatives near the deceased, all armed with agricultural implements, the appellant would have ventured to launch a premeditated attack on the deceased with a chhurri and then would have stopped after giving only on blow to his victim. In all likelihood and probability the appellant and the deceased had picked up a quarrel with each other at the spur of the moment without any premeditation on either side at a time when the deceased was digging a watercourse retar the tree which was .The bone of contention between the parties. The presence of both the parties at the place of occurrence was quite natural as the watercourse belonged jointly to both the parties. The digging of the watercourse by the deceased near the disputed tree must have agitated the appellant and an altercation between them must have ensued. It was, therefore; in that situation that the events must have taken an ugly turn and the appellant, after forming an intention to kill, attacked the deceased with his chhurri choosing the latter's chest to be the seat of the injury. The appellant as well as the deceased were closely related to each other and there was no background of any serious enmity between them.
The appellant was a young man and he also did not have the credentials of a criminal. Thus, we have taken these circumstances to be relevant in the matter of sentencing the appellant on the charge of murder.
15. For what has been observed above Sadiq Hussan appellant's conviction under section 302(b), P.P.C. Is upheld and maintained but his sentence of death is set aside and the same is substituted by a sentence of imprisonment for life. He shall be extended the benefit under section 382- B, Cr.P.G. The amount of compensation ordered by the learned Trial Court to be paid by Sadiq Hussan appellant to the heirs of Khuda Bakhsh deceased has been found by us to be inadequate. A notice was, therefore, issued to the appellant. In that regard which has been accepted by his learned counsel before this Court. The amount of compensation payable by the appellant is, therefore, enhanced to Rs. 50,000/- and in default of payment thereof he shall suffer simple* imprisonment for six months. Criminal Appeal No. 566 of 1994 filed by Sadiq Hussan appellant and Criminal Revision No. 569 of 1994 tiled by Hussan Bakhsh complainant are, thus, disposed of in these terms.
16. The reasons advanced by the learned Trial Court for acquitting Sadiq Hussan of the charge under section 13 of the Arms Ordinance, 1965 have not been found by us to be arbitrary, perverse or fanciful. The alleged recovery of chhurri had been affected from a place which was accessible to others and the witnesses produced by the prosecution in support of the said recovery also did not meet the requirements of the provisions of section 103, Cr.P.C. The learned counsel for Noor Muhammad appellant has failed to point out any misreading or non-reading of evidence by the learned Trial Court in that regard and, therefore, we have found no occasion to interfere with the exercise of jurisdiction by the learned Trial Court in that respect. Resultantly Criminal Appeal No. 196 of 1996 is hereby dismissed.
17. As the sentence of death passed against Sadiq Hussan appellant has not been confirmed by4 us, therefore, Murder Reference No. 259 of 1994 is hereby answered in the negative.