' M.A. SHAHID SIDDIQUI, J.--- Anwar Baig appellant was tried alongwith his brother Haji Muzaffar, nephew Muhammad Asghar and one Allah Yar for the murder. Of Ahmed Khan by the learned Additional Sessions Judge-II/Judge Special Court-III, constituted under the Suppression of Terrorist Activities (Special Court) Act, 1975, Mianwali, in case F.I.R. No,25 of 1996, dated 15-6-1996, Police Station Chakrala, Mianwali. The learned trial Court while convicting the appellant under section 302(b), P.P.C. Acquitted all other accused vide a judgment, dated 15-11-1999. The appellant has been sentenced to death and has also been burdened with a fine of Rs,1,00,000 as compensation to the legal heirs of the deceased.
2. The occurrence took place on 15-6-1996 at about 9-30 a.m. In front of the hotel of Malik Nazar Muhammad situated at Rikhi Moor within the area of Police Station Chakrala. It was reported to the police immediately after the occurrence by Mehr Khan (P.W.8), real brother of Ahmed Khan (deceased). The prosecution case is that, 14/15 days prior to the occurrence, Ahmad Khan (deceased) had met Mst. Nasim Akhtar daughter of Muzaffar Khan on the way and called her by the name Kali Khatoon. Mst. Nasim Akhtar got annoyed and abused Ahmad Khan. Three days thereafter the mother of Mst. Nasim Akhtar narrated this incident to Haji Muzaffar Khan accused when the latter returned from Fateh Pur, whereupon Haji Muzaffar gave slapping to Ahmad Khan for teasing his daughter. Thereafter Mehr Khan (complainant) accompanied by Ahmad Khan (deceased) and Madad Khan went to Karachi on a Trailer, commonly known as Tralla. On their way back from Karachi, on 15-6-1996, they parked their vehicle at the hotel of Malik Nazar Muhammad at about 9-10 a.m., where Khalas Khan (P.W.9) was already present there as settled between them on telephone a day earlier. Anwar Baig, the real uncle of Mst. Nasim Akhtar, and Allah Yar accused were also found present at the hotel. Allah Yar accused gave a signal to Anwar Baig indicating that Ahmad was busy in washing the western side of the Trailer. Anwar Baig got into the car and drove towards the backside of the trailer. The P.Ws. Sensed some foul play, therefore, they also moved towards the front side of the Trailer. Anwar Baig stopped his car and challenged Ahmad Khan (deceased) that he would not escape alive as he had teased his niece. Ahmad Khan ran towards the backside of the Trailer in order to save his life. Anwar Baig accused fired with his pistol hitting Ahmad Khan (deceased) in his right flank. Ahmad Khan ran towards the backside of the Trailer and fell at some distance near the Kikkar tree. The accused also fired five shots at the P.Ws., when they attempted to catch hold of him. The P.Ws. Hurled stones and smashed the panes of the car but the accused drove away his car. Mehr Khan (complainant) found Liaquat Ali, Sub-Inspector/S.H.O. At Bun Hafiz Je and made statement (Exh . P. A . ).
3. Liaquat Ali, S.-I./S.H.O. (P.W.11) after recording the statement of the complainant rushed to the spot but before that he sent the complaint to the police station for formal registration of case. He prepared injury statement (Exh.P.E.), inquest report (Exh.P.F.), and sent the dead body for post- mortem examination. He secured blood-stained earth and two crime-empties (Exh.P.4/1-2) from the spot and prepared rough sketch of the place of occurrence (Exh.P.C.). After the postmortem examination, he collected last-worn clothes of the deceased, sealed picket of pellet and recorded the statements of the P.Ws. He recovered the car from the house of the accused vide memo.
(Exh.P.H./1). He arrested Muzaffar Khan accused on 13-6-1996 and thereafter he was transferred from the said police station. The investigation was then taken up by Amir Akbar Khan, S.-I. (P.W.10).
On 5-7-1996, Muhammad Shafique Draftsman, visited the spot and thereafter handed over the site plans (Exh.P.C.) and (Exh.P.C./1) to Amir Akbar Khan, S.-I. On 8-7-1996. He arrested Anwar Baig on 17- 7-1996 who during interrogation got recovered pistol (P.5) vide memo. (Exh.P.J.). After the completion of the investigation, the S.H.O. Police station Chakrala submitted the challan.
4. On 2-1-1999, the learned trial Court formally charge sheeted the accused, who pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses in order to prove its case.
Amir Abdullah (P.w.7) deposed about the conspiracy made in the house of Anwar Baig accused one day prior to the occurrence. Mehr Khan (complainant) (P.W.8) and Khalas Khan (P.W.9) gave the ocular account of the occurrence. They also deposed about the motive. Dr. Maqbool Mubarak Malik (P.W.6) furnished the medical evidence. Amir Akbar Khan, S.-I. (P.W.10) and Liaquat Ali, S.-I.
(P.W.11) stated about the registration and investigation of the case. The statements of the remaining P.Ws. Are of formal nature.
5. Anwar Baig accused in his statement admitted the occurrence but in his own way. He pleaded that he was present at the patrol pump at Rikki Mor at the relevant time. Ahmad Khan (deceased) came there. He picked up bricks and stones lying nearby and hurled them on him, as a result of which he sustained injuries. He maintained that he had a reasonable apprehension that either he shall be killed or receive grievous injury at the hands of the deceased. The panes of the car were broken, therefore, he under an apprehension of death fired in self-defence with his licensed pistol.
His case is that he immediately went to Police Station. Chakrala in an injured condition alongwith the broken car but the police acted dishonestly and did not show his arrest. The remaining accused denied the allegations, however, they admitted the motive. They added that Ahmed Khan (deceased) had, in fact, outraged the modesty of Mst. Nasim Akhtar. Haji Muzaffar accused in his statement under section 342, Cr.P.C. Further stated that this fact had come to his knowledge later on through Anwar Baig accused. The accused declined to make statement on oath in disproof of the allegation. Anwar Baig accused, however, tendered a certified copy of F.I.R. Dated 30-6-1996 lodged by Khalas Khan (P.W.) at Police Station Larwah, District Chakwal (Exh.D.B.) and closed the defence evidence. The learned trial Court after making a detailed scrutiny of the evidence brought on record held Anwar Baig accused guilty for an offence under section 302(b), P.P.C. Accordingly, he has been convicted and sentenced to death while the remaining accused have been acquitted by giving them the benefit of doubt, hence this appeal.
6. Learned counsel for the appellant while assailing the conviction made two-fold arguments; firstly that the P.Ws., were not present at the spot and secondly that the accused acted in the exercise of right of self-defence.
7. We have considered the arguments advanced from both the side and gone through the record.
Admittedly, Anwar Baig and Haji Muzaffar (Aaccused are the sons of the paternal-aunt of Ahmad Khan (deceased). The hotel in front of which the occurrence has taken place is owned by Malik Nazar Muhammad, who is related to both the parties. The house of the complainant party is at a distance of about one kilometre from the place of occurrence, therefore, the parking of trailer by the complainant on his return from Karachi for washing purposes is not something unusual and unbelievable. The sister of Malik Nazar Muhammad is admittedly the wife of Anwar Baig accused, therefore, the presence of both the parties at the relevant time is not improbable. In view of the close relationship between the two sides, the hotel of Malik Nazar Muhammad can be used as a common place for male members of both the parties. Mehr Khan complainant (P.W.8) and Khalas (P.w.9) have fully explained their presence at the spot. The trailer is a type of vehicle, which cannot be manned and managed by a single person while undertaking a long journey, therefore, the arrival of Mehr Khan (complainant) in the company of Ahmad Khan (deceased) on his trailer at the hotel of Malik Nazar on his return from Karachi cannot be doubted in any manner. Thus, there is nothing on the record to doubt the presence of these two eye-witnesses on the spot.
8. Now, we proceed to deal with the second fold of the argument adopted by the learned counsel for the defence. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by -the attending circumstances and it should not be unfounded altogether. The motive in the instant case has not only been admitted by the accused rather it has been fortified by alleging that the deceased had also outraged the modesty of Mst.
Nasim Akhtar. The accused pleaded that he had come to the place of occurrence on a car and on seeing him Ahmad Khan (deceased) hurled brickbats, smashing the panes and causing injuries to the accused. This assertion of the accused suggests that Ahmad Khan (deceased0 was empty- hand. In view of the incident, which had taken place 15/16 days prior to the occurrence, Ahmad Khan (deceased) who was empty-handed would not have dared to take the initiative by hurling brickbats on the accused. An unarmed prudent man in such a situation would always like to avoid confrontation with a person with whose niece, he had taken some liberty. Therefore, it is not believable that Ahmad Khan (deceased) took the initiative. Amir Akbar Khan, S.-I. (P.W.10) and Liaqat Ali, S.-1. (P.W.11) have not been suggested that Anwar Baig accused had gone to the police station immediately after the occurrence after sustaining injuries at the hands of Ahmad Khan (deceased). Amir Akbar Khan, S.-I. (P.W.10) deposed that he arrested Anwar Baig from Rikkhi Mor on 17-7-1996. It should have been suggested on behalf of the accused that he had not been arrested on 17-7-1996 and that he had, in fact, gone himself to the police station immediately after the occurrence in an injured condition. This suggestion has not even been given to Liaquat Ali (P.W. 11) so there is nothing on the record to suggest that the accused pleaded to have acted in the exercise of right of self-defence during the investigation of the case. This plea has been introduced by the accused for the first time by way of suggestion to P.W.8 and P.W.9, which has been given a final shape by the accused I his statement under section 342, Cr.P.C. The plea of the accused that he had sustained injuries at the hands of the deceased before he opened fire appears to be unfounded and afterthought. This plea was not taken up by the accused during the investigation of the case. He has neither opted to make statement on oath under section 340(2), Cr.P.C. Nor has he produced any evidence in support of his plea. There is absolutely no evidence that he had sustained injury on his person. The attending circumstances, also do not lend any support to the plea of the accused, therefore, in view of the law laid down in 1969 SCMR 808, we do not find ourselves in agreement with the arguments advanced by the learned counsel for the accused. The prosecution witnesses are admittedly related to the deceased but they do not appear to have deposed falsely. Their testimony can be safely relied upon. We, therefore, subscribe to the finding arrived at by the learned trial Court and confirm the death sentence under section 338-D, P.P.C.
Accordingly this appeal fails and is hereby dismissed.