1. ' BASHIR A. MUJAHID, J.--- Ijaz Ahmad alias Khalid son of Abdur Rashid has challenged judgment, dated 17-6-1997 passed by learned Additional Sessions Judge, Kharian whereby he was convicted under section 302, P.P.C. For commission of murder of Muhammad Ghaus and sentenced to death.
2. He was also ordered to pay Rs,20,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof to undergo six months' R.I. Through the same judgment Muhammad Ayub and Arif sons of Fazal Karim and Abdul Rashid son of Faqir Muhammad were acquitted of the charge.
3. ' The brief facts of the prosecution case are that F.I.R. No,142 (Exh.P.C.) was registered at Police Station City Lala Musa, District Gujrat at 6-00 p.m. On 15-7-1995 with Zahid lqbal S.-I. P.W.11 about the occurrence which took place at 5-25 p.m. In Mohallah Model High School, Lala Musa at a distance of three furlongs from the police station on the statement of Muhammad Saeed Butt, P.W.3 wherein he had alleged that on 15-7-1995 he was going to Main Bazar Lala Musa alongwith his brother Muhammad Ghaus (deceased). When they reached near the wood-stall of Haji Ismail in Khawaspur Bazar, the accused who were embushed launched attack at them. Abdul Rashid accused raised. Lalkara to teach Ghaus Muhammad lesson for disgracing them, whereby Muhammad Ayub and Muhammad Arif caught hold of Muhammad Ghaus and Ijaz Ahmad accused inflicted Chhuri blows on his different parts of body, who fell down after receiving the injuries. The accused also caused kick blows on his body. The complainant did not intervene due to fear of the accused as he .Was empty-handed. He raised hue and cry which attracted Ijaz Ahmad, Muhammad Anwar and other persons at the spot and they witnessed the occurrence. The accused decamped from the place of occurrence towards Khawaspur. Muhammad Ghaus succumbed to the injuries at the spot.
4. ' The motive for the occurrence was that Ijaz Ahmad accused had suspicion that the deceased had illicit relation with his sister Mst. Rukhsana.
5. ' Zahid Iqbal, S.-I. P.W.11 after registration of the case arrived at the place of occurrence and took the dead body of Muhammad Ghaus into possession and also collected the blood-stained earth through memo. Exh.P.A. And prepared injury statement Exh.P.G. And inquest report Exh.P.H. Of Muhammad Ghaus and dispatched the dead body to T.H.Q. Hospital, Kharian through Sajjad Ahmad and Pervez Iqbal, F.Cs. For post-mortem examination. Sajjad Ahmad, F.C. Produced before him last-worn clothes of the deceased which were taken into possession by him through memo.
6. Exh.P.D. On 5-8-1995, he arrested Ijaz Ahmad accused who while in police custody on 13-8-1995 lead to the recovery of bloodstained Chhuri P.1 which was taken into possession through memo.
7. Exh.P.B. He completed the investigation and submitted the challan. During the investigation, he found Arif, Abdul Rashid and Ayub, accused innocent and submitted the challan after placing them in Column No,2 of report under section 173, Cr.P.C.
8. ' The trial Court framed the charge. The accused denied the allegations and claimed trial.
9. ' During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.
10. The medical evidence was furnished by Dr. Naveed Iqbal, M.O. P.W.5, who on 16-7-1995 at 8 a.m.
11. Conducted post-mortem examination on the dead body of Muhammad Ghaus and found the following injuries:--
(1) Stab wound 3 x 1 c.m. x going inward on the front of the left side chest.
(2) Incised wound 2 x 1 c.m. On the front of the right side chest.
(3) Incised wound 5 x 20 c.m. x going inward on the front of right side chest, 5 c.m. Below injury No,2.
(4) Incised wound 2 x 1 c.m. On the front of upper part of right thigh.
(5) Incised wound 2 x 1 c.m. On the right side chin.'
(6) Incised wound 2 x 1 c.m. On the middle and front of left upper arm.
(7) Incised wound 4-1/2 x 1 c.m. On the back left hand.
(8) Incised wound 5 x 1 c.m. On the palmer aspect of left hand.
(9) Incised wound 2 x 1 c.m. Below left patella.
(10) Incised wound 5 x 5 c.m. On the back of right side chest region.
(11) Incised wound 2 x 1 c.m. On right buttock.
12. ' The ocular account was furnished by Muhammad Saeed Butt, P.W.3 who was complainant of the case. He supported the version of the F.I.R. And narrated the motive for the alleged occurrence.
13. Muhammad Anwar, P.W.4 supported the prosecution story as an eye-witness of the occurrence. He corroborated the statement of Muhammad Saeed Butt, P.W.3 as narrated by him in the F.I.R. Atta Ullah P.W.2 had attested the recovery memo. Exh.P.B. Whereby the appellant/accused got recovered Chhuri P.1. Pervez Anwar, F.C. P.W.6 had delivered the sealed parcels containing blood- stained Chhuri at the office of Chemical Examiner. Sajjad Ahmad, F.C. P.W.7 had escorted the dead body of Muhammad Ghaus for post-mortem examination and produced last-worn clothes of the deceased before the Investigating Officer Aurangzeb F.C. P.W.8 had deposited the sealed parcel of incriminating articles with Head Constable at the police station. Javed Khawar, A.S.-I. P.W.9 had kept the sealed parcel in Malkhana of the police station. Masood Ahmad Bhatti, Draftsman P.W.10 had prepared the site plan of the place of occurrence. Zahid Iqbal, S.-I. P.W.11 had investigated the case as mentioned above.
14. ' Towards the end of the trial, the statement of the appellant/ accused was recorded under section 342, Cr.P.C. Who denied the allegations and in reply to Question No,6 as to why the case against him and the P.Ws. Deposed against him, he replied as under:-- "The mother of Ayub and Arif and mother-in-law of Rashid and my grandmother (Ijaz accused), namely, Fatima Bibi expired on 14-7-1995, Fatiha and condolence ceremony was being performed in the house of Arif accused. The members of the family of Ijaz had assembled in the house of Arif accused. Deceased was in search of an opportunity. Finding Rukhsana alone in the house of her parents, the deceased while armed with Chhuri entered the house and while frightening her, tried to commit Zina-bil-Jabr with her. She raised alarm. After hearing the alarm, Ijaz was attracted to the spot and a fight then started between Ijaz and deceased and during the course of that fight, deceased received injuries at the hands of Ijaz accused in the heart of emotions under grave and sudden provocation and to save the honour and life of real sister. No P.W. Was present, nor anyone else except Ijaz accused encountered the incident. I made this statement before the Investigating Officer at the time of my arrest. The P.Ws. Are related with each other."
15. ' The trial culminated into conviction of the appellant as mentioned above, who had filed Criminal Appeal No,354 of 1997 challenging his conviction and sentence, while the complainant has filed Criminal Appeal No,356 of 1997, against acquittal of the co-accused and Criminal Revision No,232 of 1997 for enhancement of compensation. The trial Court has sent up Murder Reference No,185 of 1997 for confirmation of death sentence of the Ijaz Ahmad, appellant. All the matters are being decided by this single judgment.
16. ' Criminal Appeal No,354 of 1997 on behalf of the appellant/ accused was filed by Ch. Muhammad Wasi Zafar, Advocate, but when the appeal came up for hearing on 28-11-2001, adjournment was sought on behalf of learned counsel for the appellant to prepare his brief. Thereafter, the case came up for hearing on 12-12-2001 and again Mr. Sarfraz Naveed, learned counsel appeared on behalf of the appellant and adjournment was sought on the ground that he could not establish contact with the appellant on which the case was adjourned with the direction to Deputy Registrar (Judl.) of this Court to inform the accused/appellant through Superintendent, Jail where he is confined about fixation of the appeal and to make arrangement for his representation. Then the matter came up for 15-1-2002 and Muhammad Riaz, Advocate appeared on behalf of the appellant who stated that nobody on behalf of the appellant has established contact with him and he requested that the appellant be intimated to arrange for his representation and the Deputy Registrar (Judl.) was directed to inform the appellant through Superintendent Jail for fixation of the appeal and to make arrangement for his representation and it was observed that otherwise the defence counsel at State expense will be appointed on his behalf. Superintendent Jail, Rawalpindi was intimated by Superintendent District Jail, Gujrat to inform the appellant where he is confined for fixation of the appeal, but today nobody has appeared on behalf of the appellant to argue the appeal and Mr. S.D. Qureshi, Advocate has been appointed as defence counsel who after perusing the file has argued the appeal on merits.
17. ' Learned counsel for the appellant has argued that it was an unwitnessed occurrence; that the occurrence took place inside the house of the appellant as deceased Muhammad Ghaus had arrived in the house in order to commit Zina-bil-Jabr with Mst. Rukhsana while armed with Chhuri who was all alone in the house, who raised hue and cry, on which the appellant was attracted and the deceased attacked the appellant with Chhuri and the appellant grappled with the deceased and after snatching Chhuri he caused Chhuri blows in his defence and under grave and sudden provocation so the defence plea is correct and corroborated from the circumstances of the case and the death penalty imposed by the learned trial Judge is not legal and is unwarranted under the law.
18. ' Conversely, the appeal has been opposed by learned counsel for the complainant and for the State. They have supported the impugned judgment. Learned counsel for the complainant has further prayed for accused and conviction of the acquitted enhancement of fine.
19. ' Heard Record perused.
20. The motive stands proved through admission of accused/ appellant that the deceased had illicit relation with Rukhsana.
21. ' The appellant is nominated accused in promptly recorded F.I.R., The occurrence took place in a lane at 5-20 p.m. On 15-7-1995 which was a daylight occurrence and the matter was reported at 6-00 p.m. At the police station at a distance of three furlongs from the place of occurrence. The ocular account furnished by Muhammad Saeed Butt complainant/P.W.3 and Muhammad Anwar, P.W.4 has been fully corroborated by the medical evidence. The statement of Zahid Iqbal, S.-I. P.W.11 who collected the blood-stained earth from the lane where the dead body was lying on his arrival, shows that the occurrence took place in the lane as alleged by the prosecution. The plea taken by the appellant that the deceased had arrived in his house in order to commit Zina-bil-Jabr with his sister Rukhsana, has not been substantiated by the evidence. He admitted commission of murder but the plea taken by him that occurrence took place in his house and he inflicted Chhuri blows under grave and sudden provocation is not correct and proved from the circumstances of the case. It is settled law that when an accused person admits that he has killed another, the burden of proving that he had committed no offence under law or that his case was one of diminished liability shifts to him. He has to show reasonable probability of his version being true. Although he is not required to lead independent evidence and can rely entirely upon the circumstances appearing from the evidence of the prosecution but in the instant case, the plea of sudden provocation taken by the accused has not been substantiated at all and the same is, therefore, rejected. Reliance can be placed on Khalid Javed v. Ansar Khan and another 1995 SCM R 1846.
22. Moreover, Mst. Rukhsana has not been examined in defence to substantiate the defence plea. Had the deceased armed with dagger, he should have attacked the appellant first but no injuries were received by the appellant.
23. ' The ocular account has been corroborated by medical evidence as well as recovery of weapon of offence, therefore, after deep reappraisal of the evidence, we are convinced that the prosecution has established its case against the appellant beyond any shadow of doubt and find no reason whatsoever to interfere in the conclusion arrived at by the trial Court in conviction recorded against him or the sentence awarded, resultantly Criminal Appeal No,354 of 1997 filed by the appellant is dismissed having no force. Death sentence of Ijaz Ahmad alias Khalid is confirmed. Criminal Appeal No,356 of 1997 and Criminal Revision No,232 of 1997 are also dismissed having no force.
24. ' Murder reference is answered in affirmative.