' This judgment will dispose of Criminal Appeal No,156 of 2000 titled Sikandar Hayat v. The State and Criminal Revision No,173 of 2000 titled Sufi Muhammad Yaqoob v. Sikandar and others as both the appeal and revision have arisen out of the same judgment, dated 19-1-2000 passed by the learned Sessions Judge, Okara by which he has held Sikandar Hayat appellant as guilty of offence under section 302(b), P.P.C. And has sentenced him to imprisonment for life as Tazir with a direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. In case of default in payment of compensation the appellant was to suffer for a further period of six months' Si. Benefit of section 382-B, Cr.P.C. Was also given to the appellant. This judgment has arisen out of F. I . R. Exh.P.F./1 registered on 26-5-1997 at 9-55, p.m. Recorded by Muhammad Aslam, Head Constable P.W.8 on the basis of Fard Beyan' of Sufi Muhammad Yaqub complainant P.W.9 maternal uncle of Zafar Iqbal deceased. Fard Beyan Exh.P.F. Has been recorded by Muhammad S.-I. P.W.11/Investigating Officer at 9-30 p.m. At District Headquarters Hospital, Okara for an occurrence which had taken place at `Maghrab Wela" on 26-5-1997 in the Chowk of Chak No,23/GD within the jurisdiction of Police Station Saddar, Okara. The said place of occurrence is 10 kilometres away from the Police Station.
2. The brief facts of the prosecution case are that the complainant Sufi Muhammad Yaqub P.W.9 came out of the mosque after saying Maghrab prayer, heard noise and went towards Chowk. His maternal nephew Zafar Iqbal was caught hold of collar by Sikandar Hayat appellant, while Naveed Iqbal and Muhammad Ashiq were trying to rescue them. The complainant also tried to intervene to separate them on which the appellant brought out `Khanjar like knife and gave a blow on the left side of chest of Zafar Iqbal who fell down and the appellant ran away. The injured was taken to hospital who died at the gate of the hospital.
3. The motive of the occurrence is alleged that the appellant used to sell sweet ice balls to the children in the village. Deceased objected as he was selling so with impaired material and asked him not to sell so and the scuffle took place two days prior to the occurrence and in order to wreak vengeance the deceased was done to death.
4. The appellant was arrested on 2-6-1997 by Muhammad Tufail P.W.11. Khanjar P.1 was recovered which was taken into possession vide memo. Exh.P.C. On 2-6-1997 in the presence of Muhammad Aslam P.W.5 by Muhammad Tufail P.W.11. After the conclusion of the investigation the challan was submitted. Charge was framed against the appellant which was denied by him and the prosecution in order to prove the guilt of the appellant had produced 11 witnesses. The material evidence includes the statement of Dr. Ghulam Hussain Alvi P.W.4 who conducted the post- mortem examination and found an incised wound 2 c.m. x 1/2 c.m. x deep going on front and upper part of left chest, 3 c.m. From midline and 10 c.m. Above from left nipple which was sufficient to cause death in the ordinary course of nature besides Sufi Muhammad Yaqoob P.W.9 and Naveed lqbal P. W.10 who appeared to prove the ocular version, and P.W.11 Muhammad Tufail, S.-I. Is the Investigating Officer. The appellant in his statement under section 342, Cr.P.C. Has denied the allegations of commission of crime in a manner narrated by the prosecution and has stated so on a question "have you anything else to say:"--- "I an innocent. In fact two months prior to 26-5-1997 I was engaged with Mst. Rani who is my Phoophizad and daughter of Muhammad Shafi afore-mentioned. Zafar Iqbal deceased was a man of bad character. He started teasing Mst. Rani. On the night of occurrence I was present in the house of my said Phoophi and Mst. Rani had gone to the fields alongwith her younger sister to ease herself when on the way back Zafar Iqbal caught said Mst. Rani from her arms who started weeping and made a noise on hearing of which I came out of the house of said Shafi situated on west of the village Chowk in the street and admonished said Zafar Iqbal due to which he flew into rage and took out his knife and jumped at me to assault but luckily I succeeded in snatching the knife from the deceased. Zafar Iqbal deceased on account of this insult started slapping on my face and also started hitting, with his head on my chest whereafter seeing this situation I failed to control myself and in order to defuse the mounting aggression of the deceased I without any consideration gave him one knife blow in the heat of passions due to which Zafar Iqbal had fallen on the ground in injured condition and died at the spot. It was after lsha prayer when the occurrence had taken place. None of the P.W. Was present at the scene of occurrence. However, subsequently the father of the deceased took the dead body of Zafar Iqbal to his home and I went to police station where I produced knife and narrated the entire occurrence. It was 10-00 p.m. At that time. The case has been registered after deliberation to wash away the actual bone of contention i,e, fight over girl and for the same weapon of offence has been changed by the Investigating Officer from the knife of the deceased produced by me in the police station to that of Chhuri P.1."
' On the close of evidence after hearing the arguments the impugned judgment has been passed which has been assailed in this appeal.
5. Learned counsel for the appellant contends that the motive has been disbelieved by the learned trial Court hence defence version of the appellant which gave the details of the occurrence is liable to be accepted that the appellant in order to save the honour of his Phoophizad who was engaged with the appellant two months before the occurrence had given a blow on the deceased who had caught hold of her near the house of, her parents when the appellant was also present in the said house. It is also contended that this fact is borne out from the statement of P.W.9 when he admitted that during the investigation some persons appeared before Muhammad Tufail, S.-I. And stated that the occurrence had taken place in the manner narrated by the appellant in his application. It is also contended that the time of occurrence is not admitted and the defence version is more plausible which plea had been raised by the appellant at the time of his arrest and the consistent plea having been raised by the appellant entitles him to the benefit of the same. It is also argued that the witnesses were not present at the spot, and the occurrence had taken place in a different manner at the spur of moment, thus appellant is liable to be convicted under section 302(c), P.P.C. By reducing the sentence which should commensurate with the nature of the offence committed by the appellant in the given circumstances. It is also contended that the defence needs not to prove its version as onus is always on the prosecution to prove the guilt of the accused beyond any shadow of doubt. Relies upon judgments reported as Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Muhammad Amjad v. The State 2000 M LD p.20 in which the sentence was reduced from death to 10 years' R.I.
6. On the other hand learned counsel for the complainant opposes this appeal on the ground that the presence of the appellant at the time of occurrence and causing of injuries on the left side of the chest of the deceased are admitted facts. The recovery of knife is also established on the record. It was a pre-planned murder at the most. The injury had been caused on the vital part of the body which resulted into the death of the deceased. The appellant is not entitled to any leniency but is liable to be sentenced to death. It is also contended that the defence plea has been raised after eight days after the occurrence when the appellant was arrested by the police and the defence having failed to substantiate the defence plea cannot claim any benefit out of it. He relies on Abdul Wahab alias Rehra v. The State 1999 SCM R p.1668, Raza Mohsin Qazilbash and others v.
Muhammad Usman Malik and another 1999 SCM R p.1794, Mohib Ali v. The State 1985 SCM R p.2055 and Ghafoor Ahmad v. The State 1995 SCM R 236.
7. Learned counsel for the State has also opposed this appeal on the ground that the F.I.R. Was lodged promptly, while plea of grave and sudden provocation could not be proved as none has been produced in support of the defence plea at trial except the statement made under section 342, Cr.P.C. Which disentitled the accused to claim any relief on the basis of defence plea.
8. I have heard the arguments of learned counsel for the parties and also perused the record carefully. The prosecution has succeeded in proving the case against the appellant that he while armed with Khanjar like knife had given single blow on the left side of the chest of the deceased, according to the doctor, was sufficient to cause death in the ordinary course of nature. Both the witnesses are residents of the same locality having no previous enmity with the appellant to falsely implicate him. The appellant himself has admitted his presence at the spot and causing of injury with Chhuri on the person of the deceased but only with the difference of the circumstances and the other facts are admitted. The defence plea is being sought for the alteration of the conviction of the appellant under section 302(b), P.P.C. To section 302(c), P.P.C. On the ground of grave and sudden provocation. I have considered the defence plea with due care and caution which is not acceptable in the circumstances of this case as the appellant did not appear before the police immediately after the occurrence and remained absent for eight days and then raised the plea that altercation had taken place on the matter of woman but had not given the details before the Investigating Officer as have been given subsequently at the trial by him. He did not state before the Investigating Officer that he had snatched the Chhuri from the deceased and given a single blow with The said Chhuri. On the other hand it is established on the record that the appellant was in possession of the Chhuri in his Naifa and had given a blow. Which proved to be fatal, on the vital part of the deceased. Most of the questions regarding the defence plea were stated to be incorrect by the Investigating Officer. The improved version has been given by the defence during the trial which cannot be accepted unless supported by any other material or evidence. The appellant himself has not appeared on oath to support his lefence plea nor has produced any defence. No doubt, no inference can be drawn against the accused if he opts not to appear in his defence but the defence plea, if is raised, accused should have brought anything on the record to show that the occurrence had taken place in a manner stated by him. No such evidence has been produced.
Moreover, the defence plea is also not borne out from the record. The witnesses were subjected to lengthy cross-examination but defence has failed to gain anything regarding the plea of sudden and grave provocation. No doubt, the accused is not expected to prove the defence plea in the manner the prosecution has to prove its case but it has to bring something on the record which should substantiate his plea of defence if not borne out from the evidence as the onus under Article 119 of Qanun-e-Shahadat Order, 1984 is upon him as he has alleged that the occurrence had taken place in such a manner and not in the manner as stated by the prosecution witnesses.
On the other hand the prosecution has fully established its case against the appellant beyond any reasonable doubt that the appellant is the real culprit who gave a fatal blow which resulted in the death of the deceased. I do not find any flaw in the prosecution case and no doubt has arisen in the statements of the eye-witnesses. Their presence at the spot is established on the record.
Therefore, the prosecution has been able to bring home the guilt of the appellant by unimpeachable evidence. I have noticed that the learned Sessions Judge has given due weight to the peculiar circumstances of this case, the young, age of the appellant and the causing of single bow while not awarding capital punishment and I do hot find any reason for interfering in the quantum of sentence. The sentence awarded meets the ends of justice.
' The upshot of the above discussion is that the impugned judgment of conviction and sentence passed by the learned trial Court is maintained and both the appeal against conviction and criminal revision for enhancement of sentence are dismissed.