JAVED IQBAL, J.--This appeal with leave of the Court is directed against the judgment dated 12-9- 2000 passed by learned Lahore High Court, Lahore, whereby the appeal preferred on behalf of appellant has been dismissed and judgment dated 7-10-1996 passed by learned Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Lahore, has been kept intact by whom the appellant was convicted under sections 302/24/34, P.P.C. And sentenced to death and three years' R.I. With fine of Rs,5,000 as Daman under section 377-F(iii).
2. Briefly stated the facts as enumerated in the impugned judgment are to the effect that "on 21-4- 1995 at 8 a.m. The complainant Ghulam Murtaza was proceeding to Dholan Mandi on a tractor alongwith Muhammad Siddique, Sarwar and Zulfiqar, brothers of the complainant were proceeding on foot ahead of the complainant. When the complainant alongwith Muhammad Siddique reached in front of house of Mukhtar Meo, the accused Mukhtar armed with rifle .222, Bashir armed with .30 bore pistol emerged there. Mukhtar Ahmad raised Lalkara saying brother of the complainant that they would take the revenge of insult of preceding day. Upon this, Mukhtar Ahmad fired from his rifle and the shot hit Zulfiqar, brother of the complainant, on right side of the chest. Zulfiqar fell down. When Muhammad Sarwar attempted to support Zulfiqar, Mukhtar Ahmad fired on Sarwar hitting right side of his chest. Muhammad Siddique alighted from the tractor and Mukhtar Ahmad fired upon him which hit on his buttock. The complainant party when raised the alarm, both the accused decamped and went into their Chobara. In the meanwhile. Maqbool, brother of the complainant arrived there on whom both the accused fired from the Chobara which hit on his right shoulder and Sarwar was hit on the right upper arm. Zulfiqar also sustained more injuries due to the firing from Chobara on the right calf and thigh. The motive for the incident was that on 20-4-1995 at about 8-00 p.m. Ghulam Sarwar, brother of the complainant was carrying sugarcane in a truck towards Kacha Pacca and when reached in front of the house of Mukhtar Ahmad was confronted with a tractor trolley being driven by Abdur Razzaq and Muhammad Idress.
While crossing the trolley, the truck slipped into the drain towards the house of Mukhtar Ahmad, Ghulam Sarwar brother of the complainant came down from the truck and removed a big stone from the front of the truck which was lying near the drain. Mukhtar Ahmed hurled abuses on Ghulam Sarwar on removing the stone resulting into grappling between the two. Ghulam Sarwar gave slaps to Mukhtar Ahmad. Abdur Razzaq and Muhammad Idrees intervened and separated them. This occurrence annoyed the accused Mukhtar Ahamd". As a result of firing Zulfiqar succumbed to his injuries while Muhammad Sarwar, Muhammad Siddique and Maqbool sustained injuries. After completion of investigation the appellant was sent up for trial alonwith Bashir Ahmad (acquitted co-accused) and convicted as per details mentioned hereinabove. Being aggrieved an appeal was preferred which has been accepted to the extent of Muhammad Bashir while death sentence of Mukhtar Ahmed (appellant) has been confirmed.
3. Leave to appeal was granted vide this Court order dated 10-10-2000 which is reproduced hereinbelow for ready reference:-- "Petitioner was found guilty of murder, murderous assault and inflicting injuries and on conviction under sections 302/324/ 337/F(iii), P.P.0 by the learned trial Judge on 7-10-1996, was sentenced as under:--
(i) Under sections 302/324/34, P.P.C.--Death sentence,
(ii) Under section 337-F(iii), P.P.C- three years' R.I. With a fine of Rs,5,000 as "Daman". The said conviction and sentences were confirmed in appeal by the High Court and the Murder Reference was answered in affirmative through the impugned judgment dated 12-9-2000. This petition has been moved to challenge the correctness of these judgments.
2. We studied the record and granted leave to consider in detail the following points:-
(i) Whether the prosecution has not been able to prove motive set up in the F.I.R. And if so what would be its effect on the conviction and sentence of the petitioner?
(ii) Which of the two versions, one that by the prosecution and the other of self-defence pleaded by the petitioner is more plausible, natural and confidence-inspiring?
(iii) Whether the sentence of death has correctly been awarded keeping in view the evidence/material on record and the plea of the petitioner?"
4. It is mainly contended by Raja Muhammad Anwar, learned Senior Advocate Supreme Court on behalf of appellant that it is admittedly a case of two versions but the version put forth by the appellant has been ignored without any rhyme and reason and the plea of self-defence pressed into service strenuously and substantiated by cogent and concrete evidence could not be appreciated in its true perspective which resulted in serious miscarriage of justice and evidence adduced in this regard escaped notice from the .Learned High Court. For the sake of elucidation the statements of Mukhtar Ahmed (statement got recorded under section 342, Cr.P.C. And section 340(2), Cr.P.C.), Bashir Ahmad (D.W.2), Mst.Bashiran Bibi (D.W.3) and Rozdar (D.W.4) were read in order to substantiate the prime plea of self-defence. It was pressed time and again that firing was made by the appellant to save the honour of his wife namely Mst. Bashiran Bibi and life of his brother Muhammad Bashir.
5. Mr. Asghar Ali Chaudhry, learned Advocate Senior Court entered appearance on behalf of complainant and supported the judgment impugned being free from any infirmity and further contended that appellant failed to establish the plea of self-defence. It is further contended that in view of provisions as contained in section 121 of the Qanun-e-Shahadat Order, 1984 it was the duty of appellant to prove the plea of self-defence agitated as main defence plea. Mr. Asghar Ali Ghaudhry, learned Advocate Supreme Court further contended that ocular version finds support from medical evidence, recovery of rifle and the empty cartridges and report of Fire-arm Expert. It is pointed out that the alleged incident was never occurred before the house of Mukhtar Ahmad but it was a thoroughfare. In this regard he has referred the site plan.
6. After a careful examination of the entire defence evidence we are of the considered view that the plea of self-defence could not be substantiated. Let we mention here at this juncture that we are conscious and mindful of the fact that it is bounden duty of the prosecution to prove the case beyond any shadow of doubt and the prosecution by no stretch of imagination can be relieved from its duty of proving the case irrespective of the fact whether the accused has succeeded in adducing the probable defence plea or otherwise. In this regard we are fortified by the dictum laid down in cases titled Wali Muhammad v. State 1969 SCM R 612, Shamoon v. State 1995 SCM R 1377, Hakim Ali v. State 1971 SCM R 432, Shaukat Ali and others v. State PLJ 1974 Karachi 106, Rehmat v.
State PLD 1977 SC 515). It is, however, to be kept in view that when some distinct plea is taken such as self-defence the onus shifts on the accused to prove the existence of those circumstances which culminated into the incident. "The law governing the plea of the right of private defence is laid down in section 105 of the Evidence Act, which throws the burden of proving the existence of circumstances bringing the case within any of the general exceptions, of which the plea of private defence is one, on the accused. Of course, for this purpose an accused can rely on evidence directly adduced by him or on facts and circumstances arising from the prosecution evidence or materials brought out in cross-examination of prosecution witnesses by him. This section also lays down that the Court shall presume the absence of such circumstances, which shows that the rebuttal of such presumption lies on the accused." (Hukamzad v. State 1969 SCM R 802, Ali Sher v.
State PLD 1980 SC 317). In the light of what has been stated hereinabove it appears to be a well- entrenched legal proposition that if the defence version is not plausible or convincing it cannot be made a sole base for conviction and prosecution has to prove its case in all' circumstances. In this regard we are also fortified by the dictum laid down in case titled Shamir v. State (PLD 1958 SC 242) wherein it was held that "despite the fact that no evidence had been led by the accused to prove the plea of self-defence, yet, if the plea received support to the extent of being reasonably possible, from the circumstances proved by the prosecution evidence, the accused was entitled to acquittal.
In such a case, the prosecution fails on the general issue of the accused's guilt. The accused's statement of facts as to his plea of self-defence should be placed in juxtaposition to the circumstances of the case as found from the prosecution evidence and the entire case examined as a whole". (Safdar Ali v. The Crown PLD 1953 FC 93). It is, however, to be noted that where the plea of self-defence is pressed into service it is to be shown that who was aggressor, by whom the fight was initiated and whether the party by whom the plea of self-defence has been introduced sustained any injury from the hands of aggressor and on retaliation what was the degree of violence used. In this regard we are supported by the law laid down in case titled Kala v. State (1987 SCM R 385).
7. On the touchstone of the criterion as laid down and discussed hereinabove we have examined the evidence as led by the appellant to substantiate the plea of self-defence. In the present case the plea of self-defence revolves around the statements of Mukhtar Ahmad (statement under section 342, Cr.P.C. And section 340(2)., Cr.P.C), Muhammad Bashir (D.W.2), Mst.Bashiran Bibi (D.W.3) and Rozdar (D.W.4). The plea of self-defence was pressed into service by the appellant while his statement was being recorded under section 342, Cr.P.0 while answering question No,5 which is reproduced hereinbelow with its answer:-- "Q.5. Is it a fact that on the said date, time and place, you fired with your rifle which hit Zulfiqar deceased on right side of his chest who fell down and died at the spot and you also fired at Sarwar, Siddique and Maqbool P.Ws. When they tried to rescue Zulfiqar who also sustained injuries and thereafter you and your co-accused while firing left the spot? .
A. It is incorrect. The fact is that Zulfiqar etc. Armed with fire-arms came there dragged my brother- in-law Bashir accused from the shop under the Chubara gave him merciless beating, threw him on the road, who- raised alarm, I alongwith my wife solicited them not to beat Bashir whereupon Zulfiqar and his accomplices mentioned above fired with their weapons. Zulfiqar then dragged my wife and shouted that he would make her to dance naked in the village and Zulfiqar deceased fired at me as well. I then fired in my self-defence as well as in the defence of Bashir my co-accused and to save the honour of my wife Mst.Bashiran.
8. In nutshell it is stated by the appellant in his statement that Zulfiqar (deceased) arrived alongwith his companions, dragged Bashir from his shop, merciless beating was given and moreso Mst.Bashiran Bibi was also dragged from the Chubara and a threat was given by Zulfiqar (deceased) that he would make her to dance naked in the village and Zulfiqar also fired upon him and resultantly the appellant fired in self-defence to save the honour of his wife Mst.Bashiran Bibi and brother-in-law Muhammad Bashir. We have also perused the statement got recorded on oath. A thorough scrutiny of defence evidence would reveal that the plea of self-defence is improbable, fabricated and an afterthought. The statement of defence witnesses are contradictory, highly exaggerated and indicative of dishonest improvements. The appellant in his statement got recorded under section 342, Cr.P.C. Had not mentioned that Zulfiqar went to Chubara and dragged Mst. Bashiran Bibi from there and brought her on the road but mentioned the same in his statement got recorded on oath. He also stated in his statement got recorded under section 342, Cr.P.C. That he was subjected to firing by Zulfiqar but subsequently took a summersalt by stating that Zulfiqar went to Chubara and made firing in the air. It is also stated by the appellant that Muhammad Bashir was dragged from his shop and merciless beating was given but amazingly Muhammad Bashir failed to get himself medically examined. The statement of Muhammad Bashir and Mukhtar Ahmad are contradictory on the point as to whether Zulfiqar (deceased) went to Chubara and dragged Mst. Bashiran Bibi to road. Muhammad Bashir has also not mentioned regarding any threat extended by Zulfiqar that he would make Mst. Bashiran Bibi naked and no mention whatsoever has been made regarding her naked dance.
' Muhammad Bashir has stated that Zulfiqar alone went to Chaubara and brought Mst. Bashiran Bibi while Mst. Bashiran Bibi has stated that Zulfiqar came to Chaubara alongwith his companions and after catching hold of her pigtail stipped her naked which aspect of the matter has not been supported by Mukhtar Ahmad and Muhammad Bashir. Mst. Bashiran Bibi also mentioned about head injury received during the scuffle but no medical evidence could be produced in this regard.
Mst. Bashiran Bibi has not supported appellant that Zulfiqar and his companions came under the umbrella of indiscriminate firing. The defence witnesses could not prove the happening of occurrence in the manner as pleaded. The defence version does not appeal to logic and reason because had there been indiscriminate firing by Zulfiqar who was allegedly armed with deadly weapon alongwith his companions how the appellant, Muhammad Bashir and Mst. Bashiran Bibi saved from the shower of firing. The appellant Muhammad Bashir and Mst. Bashiran Bibi failed to prove the factum of injuries which is one of the essential pre-requisite before the plea of self- defence could be pressed into service, They had not received even a minor scratch what to say about firearm injuries. On the contrary Zulfiqar was done to death and Muhammad Sarwar, Muhammad Siddique and Maqbool sustained fire-arm injuries. The evidence as discussed hereinabove would draw to lead the only conclusion that the alleged incident occurred in the manner as alleged by the prosecution and as a result of firing made by Mukhtar Ahmad (appellant), Zulfiqar was done to death while Muhammad Sarwar, Muhammad Siddique and Maqbool sustained injuries. We have not been persuaded to agree with Raja Muhammad Anwar, learned Senior Advocate Supreme Court that immediately after the occurrence various applications were moved by Mst. Bashiran Bibi regarding the alleged incident and for redressal of her grievances because no such application was ever found in the office of concerned Superintendent of Police. The statement of Bashir Ahmad A.S.-I. (C.W.1) cannot be discarded who stated in a categoric manner that no such application was received in the complaint cell. There is no denying the fact that the appellant has failed to substantiate the plea of self-defence but as mentioned hereinabove irrespective of his failure it was duty of the prosecution to prove its case beyond shadow of doubt and no benefit can be drawn from the weakness of the defence. If any authority is needed reference can be made to cases titled Rab Nawaz v. State (PLD 1994 SC 858), Shamoon v. State (1995 SCM R 1377). In order to examine the said aspect of the matter the entire prosecution evidence has been thrashed out. We are of the considered view that eye account furnished by Ghulam Murtaza (P. W. 8) and Muhammad Siddique (P.W.9) being confidence- inspiring has rightly been considered and relied upon by learned trial and appellate Courts. The above mentioned eye-witnesses stood firm to the test of cross-examination and nothing beneficial could be extracted. Besides that Muhammad Siddique (P.W.9) is an independent witness having no inter se relationship with the complainant party and as such there was no justification available for him to NJ, have implicated the appellant. The presence of Muhammad Siddique (P.W.9) is supported from the fire-arm injury sustained at the place of occurrence. It is worth- mentioning here at this juncture that Mukhtar Ahmad (appellant) has conceded in his statement got recorded on oath under section 340(2), Cr.P.C. Without any ambiguity that there was no previous enmity with Zulfiqar (deceased). As such the possibility of false implication is eliminated.
The medical evidence furnished by Dr. Mumtaz Ahmad (P.W.10) and Dr. Mian Abdul Rauf (P.W.12) lends full corroboration to eye account. The crime empties recovered from the place of occurrence wedded with the rifle recovered at the instance of Mukhtar Ahmad (appellant) as per Fire-arm Expert's report (Exh.PQ) and (Exh.PR). It can thus be said with certainty that prosecution has established its case beyond shadow of doubt and in absence of mitigating circumstances the alternate plea as agitated on behalf of the appellant in reduction of sentence cannot be entertained as normal sentence for murder in the absence of mitigating circumstances is death. In this regard reference can be made to cases titled Muhammad Ilyas v. Muhammad Sufian (PLD 2001 SC 465), Zafar v. State (1999 SCM R 2028). The question of motive was also considered by this Court while granting leave but this controversy has been set at naught and it is no more essential for the prosecution either to alleged or prove the motive. (Riaz Hussain v. The State 2001 SCM R 177).
' In the light of foregoing discussion the appeal being devoid of merit is dismissed.