' IFTIKHAR MUHAMMAD CHAUDHRY, J.-This appeal is by the leave of the Court against judgment dated 29th November, 1994 passed by Lahore High Court, Rawalpindi Bench, whereby respondent Ghulam Farid son of Noor Muhammad , Caste Mochhi has been acquitted of the charge under section 302(b), P.P.C., on setting aside the judgment dated 1st February, 1992 passed by Sessions Judge, Attock awarding him sentence of life imprisonment.
2. Precisely stating the facts of the case are that vide F.I.R. Exh.PA/1 dated 12th October, 1991 registered at Police Station, Pind Sultani, District Attock, respondent Ghulam Farid was involved in a case under section 302, P.P.C. On the complaint of Mst. Mumtaz Begum daughter of Waris Khan. As per prosecution version deceased Rashid Alam husband of the complainant being an employee in Provincial Cooperative Bank as Inspector after spending the Friday weekend went back to Rawalpindi on the date of incident.. In the evening at about 5-15 P.M. P.W. Mst. Mumtaz Begum who was present in her house alongwith her paternal uncle P.W. Abdul Aziz, heard loud voice of Ghulam Farid as he was calling bad names on this she alongwith her uncle P.W. Abdul Aziz went outside her 'Haveli into the street and saw her husband deceased Rashid Alam running towards his home. In the meanwhile complainant also saw Muhammad Idrees son of Juma Khan coming behind the deceased. When the complainant reached close to the corner of house of Muhammad Akber son of Suddha Khan her husband had also reached under "Pepal tree" which is grown on the border of thoroughfare of the street and she saw that respondent Ghulam Farid gave a Churri blow on left shoulder of Rashid Alam as such he immediately fell down and succumbed to injuries after a short while.
3.. As per the motive disclosed by Mst. Mumtaz Begum in F.I.R. The respondent had a suspicion that deceased being his neighbour had developed illicit relations with his wife Mst. Fehmida Begum and in this very connection on the preceding Friday i.e, 4th October, 1991 they had an altercation with each other but the matter was patched up by notables including P.W. Khaki Jan and Noor Muhammad Lamberdars but despite of that respondent Ghulam Farid nourished grudge against the deceased and on getting a chance committed his murder mercilessly during broad daylight.
4. After registration of case the Investigating Officer took into possession blood-stained earth vide Exh.PB and also prepared a site plan Exh.PD/1 including location of the place where the dead body of deceased Rashid Alam was lying as well as situation of the house of respondent. After arrest of the respondent the Investigating Officer recovered Churri as crime weapon on 18th October, 1991. All the recovered incriminating articles were sent -to concerned quarters for procuring expert evidence.
5. On completion of investigation the respondent was sent up to face trial before Sessions Judge, Attock who after observing codal formalities found the respondent guilty for the offence vide judgment dated 1st February, 1992 whereby he was convicted under section 302(b), P.P.C. And sentenced to life imprisonment with benefit of section 382-B, Cr.P.C.
6. The respondent questioned the judgment of trial Court by filing Criminal Appeal No,56 of 1992 which has been allowed vide impugned judgment dated 29th November, 1994. As such against impugned judgment leave to appeal was granted on 6th March, 1996.
7. Learned counsel for appellant contended that prosecution has established guilt beyond shadow of doubt against the respondent by producing incriminating evidence of P. Ws. Mst. Mumtaz Begum (complainant) and Abdul Aziz. The accused had not denied the happening of the incident inasmuch as the accused failed to prove his plea of grave and sudden provocation; therefore; he is not entitled to acquittal and in the interest of justice on setting aside the impugned judgment he be punished adequately.
8. Learned State Counsel argued that ocular testimony of P.W. Mst. Mumtaz Begum and Abdul Aziz is trustworthy, true and confidence-inspiring as they have furnished natural evidence of the incident and merely on the assertion of the accused that they were not present at the place of incident their testimony cannot be disbelieved. According to him the plea of the accused that he got suddenly provoked because he had seen his wife Mst. Fehmida in a compromising position with deceased Rashid Alam is afterthought thus not worthy of acceptance.
9. On the other hand learned counsel for respondent argued that P.W. Mst. Mumtaz Begum and Abdul Aziz were not present at the scene of incident and they were made the witnesses of the case subsequently by the police in order to involve the respondent In the commission of the offence.
However, the accused had taken the plea which falls within the mischief of section 84, P.P.C. That as he had seen deceased Rashid Alam in a compromising position with his wife Mst. Fehmida, therefore, he got suddenly provoked and in the meanwhile deceased started running from the house, as such he gave a Churri blow on his shoulder. According to learned counsel under the circumstances when the respondent had seen highly objectionable scene with his own eyes he was bound to lose his tamper on account of grave and sudden provocation, therefore, having left with no option he attacked upon the deceased and for such reason he would not be held liable for commission of offence of murder falling within the provisions of section 302, P.P.C.
10. We have heard the learned counsel and have gone through the material available on record as well as impugned judgment. As per evidence of P.W. Dr. Zafar Mansoor Sheikh deceased Rashid Alam sustained following injuries on his person:--- "(1) A stab wound 3-1/2 c.m. x 1-1/2 c.m. x chest deep on the left side of the chest 7 c.m. Above the left nipple.
(2) An incised Wound 1 c.m. x 1/4 c.m. x muscle cut on the left side of the chest 10 c.m. Below the left nipple. On opening the thorax I observed as under:---
(i) Third rib of left side of chest was fractured, intercostal muscles between second and third rib were cut through and through. Left plura was ruptured."
11. A perusal of above injuries demonstrates that deceased Rashid Alam sustained injuries on the front part of his body. According to the site plan Exh.PD/1 respondent's house is situated at Point No,7 whereas the dead body of Rashid Alam was lying at Point No,1 . On having compared the medical evidence as well as the contents of site plan carefully it is impossible to accept the arguments raised by the learned counsel that the respondent had seen the deceased in his house in a compromising position with his wife and on seeing him deceased started running and then he gave him a blow with the Churn. If the situation would have been the so then the deceased must have received injuries on backside of his body instead of front portion. In addition to it the blood should have been fallen on the ground in the house of the accused and 'the dead body of deceased may have not been found at a considerable distance from his house. Similarly respondent may have also given some explanation about his wife i.e, whether she was also stabbed or she succeeded in running away. Likewise there is nothing on record that how deceased and his wife immediately wore their clothes etc. If it is to be believed that they were in compromising position.
12. As in the instant case happening of the incident is not denied by the respondent both during cross-examination on the statement of Mst. Mumtaz Begum as well as in his statement under section 342, Cr.P.C., but despite that prosecution is bound to prove its case but once it has substantiated accusation by means of convincing evidence then burden shifts upon the accused who has taken special plea to prove it under Article 121 of Qanun-e-Shahadat Order, 1984. In the instant case P.W. Mst. Mumtaz Begum and Abdul Aziz have furnished trustworthy and - confidence- inspiring evidence. The objection relating to non-presence of Mst. Mumtaz Begum in her home on the day of incident for the reason that she had gone to see her parents in another village has been strongly contradicted by her, therefore, being a house wife her presence in the house in ordinary manner cannot be overruled. As far as non-presence of P.W. Abdul Aziz being the employee of WAPDA as held by the High Court in the house of his niece P.W. Mat. Mumtaz Begum is concerned it is not acceptable on the premise as advanced by the High Court unless defence has proved that on account of exigencies of his service he was not supposed to be in the house of P.W. Mat. Mumtaz Begum at the relevant time. Therefore, in absence whereof conclusion would be that presence of P.W. Abdul Aziz in the house of P.W. Mumtaz Begum being his niece was natural. Thus reasons advanced by learned High Court in disbelieving the evidence of P.W. Mst, Mumtaz Begum and Abdul Aziz being unconvincing are not accepted. Moreover P.W. Abdul Aziz cannot be stamped to be a chance witness as it has been argued by learned counsel for the respondent. Besides it, the version of a chance witness in criminal cases can be accepted to be true if his presence at the place of incident is not doubtful. However if Court intends to draw Aadverse inference about the presence of such witness at the time of incident then it is supposed to find out strong corroboration to his statement in order to make it admissible. Reliance in this behalf may be placed on the cases of (i) Javed Ahmad alias Jaida v. The State and another (1978 SCMR 114), (ii) Muhammad Ahmad and another v. The State and others (1997 SCMR 89) and (iii) Imran Ashraf and 7 others v. The State (2001 SCMR 424). Considering the statements of P. Ws. 1 and 2 in juxtaposition and reading the same carefully for the purpose of corroboration of each other no other conclusion can be drawn except that P.W. Abdul Aziz was present at the time of incident in the house of P.W. Mumtaz Begum and they both came out of the Havali, in the street on hearing the loud voice of respondent and saw that latter had killed Rashid Alam in their presence with a blow of Churri which landed on front part of his chest. Thus in such situation when the prosecution had discharged its initial burden of establishing offence against the respondent then it becomes his liability to establish the plea of committing murder of Rashid Alam due to sudden and grave provocation. But incidentally no convincing material/evidence has been brought on record by the respondent to establish that he saw deceased Rashid Alam in compromising position with his wife Mst. Fehmida. Because there is no evidence on record whether she was also stabbed by him or the deceased Rashid Alam was forcibly attempting to commit Zina-bil-Jabr with him and to rescue her he attacked upon deceased Rashid Alam. In this behalf neither Mst. Fehmida was produced before the police nor her statement was got recorded as defence witness in the Court. As such it is held that respondent failed to discharge his burden. It may be noted that the special plea raised by an accused is required to be proved in terms of Article 121 of Qanun-e-Shahadat Order, 1984 as a question of fact.
However, failure in proving such plea would not make him liable for commission of offence because the burden of proof of guilt always remain upon the prosecution but if any doubt arises by establishing such plea the benefit of the same would be given to the accused as it has been held by this Court in the case of Abdul Haq v. The State and another (PLD 1996 SC 1). In this context reference to another judgment in the case of Muhammad Safdar v. The State (PLD 2002 SC 781) can also be made. In this case as well somehow identical plea was taken by the accused but this Court after having scrutinized the evidence concluded that the plea so raised by the accused was not available, as such leave to appeal was declined.
13. The argument of the learned author Judge of the High Court that after having received a Churri blow inside the house the deceased might have fallen down at Point 1 is not acceptable because then in that situation there should have been trail of blood between point No,7 i.e, house of respondent and Point No,1 where ultimately deceased was found lying dead by the police in the street at a distance from the house of accused. Location of the place where dead body of Rashid Alam was lying indicates as if he was coming towards his house situated in the same street and on his way he was stabbed by the accused on his chest.
14. Learned counsel for the State forcefully argued that accused/respondent made his escape good after commission of the offence and he remained absconder for about 4/5 days i.e, 16th October,. 1991, therefore, according to him had he committed the offence on account of grave and sudden provocation he instead of absconding himself would have approached the police for the purpose of lodging the report. Therefore, absconsion of the accused from the place of incident itself is a ground to conclude that he committed cold-blood murder of Rashid Alam on account of previous altercation which took place between both of them on 4th October, 1996 and despite of the fact that P.W. Khaki Jan and Noor Muhammad had patched up the matter he had nourished grudge and ultimately killed him.
' We are inclined to concur with the view-point of learned State Counsel. However, in this behalf it is important to note that respondent during cross-examination on the statement of P.W. Mumtaz Begum had stated that after the occurrence he himself went to the police with Churri and narrated the whole occurrence but the police instead of recording his statement sent for Mst. Mumtaz Begum and registered the case on her complaint. But he failed to substantiate his such stand during trial. Inasmuch as P.W. 10 Sikandar Khan, S.H.O. Denied the suggestion that on 12th October 1991 respondent immediately after the occurrence had appeared before him with Churri and told that having seen his wife in compromising position with the deceased he had given a Churri blow to the deceased out of `Ghairat' while he tried to run away. Under such circumstances respondent could have substantiated his plea by making his own statement on oath or by producing defence witnesses. Thus absconsion of the respondent during the period from 12th October, 1991 has affected his case adversely. It is recognized principle of criminal administration of justice that when an accused remains absconding after commission of the offence an adverse inference is drawn against him to the effect that because he has committed an offence, therefore, to hamper the process of investigation of the case he absconded himself because if an accused considers himself to be innocent he instead of defying the law would surrender himself before the law enforcing agencies or the judicial authorities. Presuming for the sake of arguments that respondent approached the, police for registration of case but his request was not entertained then he would have approached the higher authorities of the police or to the judicial functionaries of the area instead of remaining at large for 4/5 days. Therefore, such conduct of the respondent militates against his plea that he approached the police for registration of the case. Besides it, the prosecution story becomes more plausible and strengthens on account of getting corroboration from the fact that after commission of offence accused ran away with a view to save his skin. To fortify this principle of criminal administration of justice reference may be made to the judgment in case of Ghulam Hussain and another v. The State (PLD 1966 (W.P) Peshawar 255) and the State through A.G., N.-W.F.P., Peshawar v. Waqar Ahmad (1992 SCMR 950).
15. Learned counsel for the State further argued that if the respondent at all had committed the crime on account of grave and sudden provocation because he has found his wife Mst. Fehmida in compromising position with deceased Rashid Alam he must have disclosed such version at the earliest after his arrest on 16th October, 1991 either before the police or before the Judicial Magistrate where he was produced for the purpose of remand but non-disclosing of his version at the first available opportunity leads to draw inference that he has committed the crime. In this context it is to be noted that accused is not bound to disclose his version on the first available opportunity and if he had not done so burden would not shift upon him to disprove the guilt but disclosing of first version at the earliest is only relevant to show the stand taken by him which might ultimately will help him out in disproving the case of the prosecution. Reliance in this context may be placed on the case of Ishaq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879) and Muhammad Yaqub v. The State (PLD 1969 Lahore 548).
16. Learned counsel for the respondent relying upon the judgment in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) argued that if there are two versions, the one which favours the accused should be accepted. As according to him in case in hand the prosecution alleged that the respondent committed the murder when deceased was passing through the street towards his house whereas the defence version is that deceased was found in compromising position with his wife and on having seen him the deceased started running away from his house and meanwhile he was stabbed with Churri by him, therefore, on accepting the version put forward by the accused he has been rightly exonerated of the charge.
' In the precedent relied upon by the learned counsel this Court while discussing the principle of interference in the acquittal appeals under section 417, Cr.P.C. Has notified a principle of law namely "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice and for no other purpose. #TS##Keeping in view this principle it is to be noted that reasons assigned by learned High Court for recording acquittal of the respondent are not acceptable.
17. As far as the theory of two versions in the criminal cases is concerned normally such pleas are always put forward by both the sides but the Court would accept the one out of both the pleas, which is more nearer to truth instead of accepting blindly the version, which favours the accused.
As in the instant case the version of the prosecution that Rashid Alam was not killed by the respondent inside the house but respondent killed him outside the house on account of previous grudge stands established through trustworthy and confidence-inspiring evidence of P.W. Mst.
Mumtaz Begum and Abdul Aziz. Therefore, the version of the prosecution based on convincing and coherent evidence seems to be more nearer to truth and the respondent had failed. To discharge his burden, as such, conclusion would be that he had not committed the murder of Rashid Alam on account of grave and sudden provocation, but his case would be treated to be the case of intentional killing. In forming this view reliance is placed on the case of Mohib Ali v. The State (1985 SCMR 2055). Relevant para. Therefrom is reproduced hereinbelow:-- ' "In this regard the High Court noticed that according to medical evidence the shot fired at the deceased was from a close range, and the deceased was killed at some distance from appellant's house as his body was lying at a distance of about 50 yards from the door of appellant's house, under a tree to which the mare of the deceased was tied. Learned Judges, therefore, took the view that had the defence version been true, the dead body would have been found naked and inside appellant's house for according to appellant he saw Haji Khan in an objectionable position with his wife, both being naked in his house. In this behalf this is what the learned Judges in the High Court have observed:--- ' The appellant admits having met the deceased in the shop of Ali Sher Bhanger just a few minutes before the incident. The deceased like a person having the slightest intelligence could have become conscious that he may be pursued. At that time there might be neighbours also present around. These things in mind preclude the possibility of any misdemeanour to provide grave and sudden provocation. The plea cast a heavy onus upon the appellant, which he could hardly except to discharge by merely tendering Mst. Qabila in the witness-box. One would have normally expected the neighbours to corroborate the statement of Mst. Qabila as far as the presence of deceased in the house was concerned. A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. If such pleas, without any evidence, are accepted, it would 'give a licence to people to kill innocent people.'
' After having gone through the record of the case, we find that on the facts and circumstances proved in the case, the High. Court has rightly held the appellant guilty under section 302, P.P.C. And interference by this Court would not be justified. There is also no justification for awarding the lesser sentence to the appellant as pointed out by the High Court."
18. Now the next question is with regard to inflicting sentence upon the respondent who has been found guilty for commission of murder of Rashid Alam. The learned Sessions Judge had awarded him life imprisonment under section 302(b), P.P.C. Without taking into consideration an extenuating circumstance which goes in his favour as per the statement of P.W. Khaki Jan who deposed that on 4th October, 1991 an altercation took place between deceased Rashid Alam and accused Ghulam Farid in a street close to their houses. He had intervened and asked Ghulam Farid as to why they were quarrelling whereupon Ghulam Farid told him that he had a suspicion that his wife was having illicit relations with Rashid Alam. Meanwhile Noor Muhammad Lamberdar reached there.
They both asked Rashid Alam as to what was the matter whereupon Rashid Alam told to swear his innocence somewhat identical statement was also given by P.W. Mumtaz Begum in F.I.R. And Court statement. Therefore, happening of the incident prior to it can be considered to be a factor for bringing his case under section 302 (b), P.P.C. In the light of the principle laid down by this Court in the case of Abdul Haque v. The State (PLD 1996 SC 1).
' Thus for the foregoing reasons the appeal is accepted and impugned judgment dated 29th November, 1994 is set aside and respondent Ghulam Farid son of Noor Muhammad is convicted under section 302(b), P.P.C. And sentenced to life imprisonment with direction to pay Rs,50,000 as compensation to the legal heirs of deceased in accordance with the provisions of section 544-A, Cr.P.C. And in case of default in payment of amount of compensation he shall further undergo six months S.I.