ASIF SAEED KHAN KHOSA, J.-- Ashiq Hussain alias Nanna appellant was convicted for an offence under Section 302(b), PPC vide judgment dated 24.2.1999 handed down by the learned Additional Sessions Judge, Gojra, District Toba Tek Singh and was sentenced to death by way of Tazir and to pay a sum of Rs. 20,000/- to the heirs of Muhammad Shahid deceased by way of compensation under Section 544-A, Cr.P.C, or in default of payment thereof to undergo rigorous imprisonment for four months. However, through the same judgment the learned Trial Court had acquitted six co- accused of the appellant. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No. 135 of 1999 which has been heard by us along with Murder Reference No. 196 of 1999 seeking confirmation of the sentence of death passed against the appellant. We proposed to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the FIR was that Muhammad Rashid complainant was a resident of Chak No. 3717JB, Ganda Singh within the area of Police Station City, Gojra, District Toba Tek Singh and was employed in the local Union Council as its Secretary. At Maghrib wela on 28.11.1995 the complainant's brother namely Muhammad Shahid was sitting at a tea-stall of one Muhammad Din situated at Mongi Road in the area of the same Chak when the complainant, Muhammad Ashraf PW and Muhammad Aslam PW were proceeding towards the same tea-stall for taking tea. When the complainant and the other witnesses reached near that tea-stall they saw Ashiq Hussain alias N-anna appellant armed with a pistol, Muhammad Iqbal alias Gogi accused empty-handed, Zulfiqar alias Bhutto accused armed with a pistol, Khalid Mehmood alias Mooda accused armed with a pistol and another unknown co-accused empty-handed reaching the same tea-stall while riding on bicycles. Upon their arrival at the said tea-stall the appellant his co- accused parked their bicycles and Muhammad Iqbal alias Gogi and the unknown co-accused raised a lalkara that Muhammad Shahid may not be spared. Upon seeing the appellant and his co-accused's aggressive designs the complainant's brother namely Muhammad Shahid started running away whereupon Ashiq Hussain alias Nanna appellant ran towards Muhammad Shahid and stood in front of him after>r overtaking him and then fired thrice from his pistol hitting Muhammad Shahid on his right upper, arm, left lip and left side of chest. Upon receipt of those injuries Muhammad Shahid fell down. When the complainant and the other witnesses lunged forward they were stopped by the accused party by warning them that they would also meet the same fate. Thereafter the accused party left the scene of the crime while riding on their bicycles.
The complainant and his companions then took Muhammad Shahid to Civil Hospital, Gojra in an injured condition but upon reaching that hospital Muhammad Shahid breathed his last. According to the F.I.R. Muhammad Shahid had been murdered by the appellant and the above- mentioned co-accused with the abetment of Muhammad Hussain and Muhammad Yousaf co- accused. The motive set-up in the F.I.R, was that Muhammad Shahid deceased and Ashiq Hussain alias Nanna appellant were locked in litigation with each other and Muhammad Hussain co-accused used to support the appellant's party, It was further mentioned in the F.I.R, that on one occasion Muhammad Shahid deceased had also abused Muhammad Hussain co- accused and the later nourished a grudge in that regard. Leaving the dead-body of his brother namely Muhammad Shahid deceased at the hospital in the care of Muhammad Ashraf and Muhammad Aslam PWs Muhammad Rashid complainant proceeded to report the matter to the police. Later on F.I.R. No. 387 was registered in respect of that incident at the instance of Muhammad Rashid complainant at Police Station City, Gojra, District Toba Tek Singh at 6.45 p.m. On the same day, i.e. 28.11.1995 for offences under Sections 148/302/149/109, PPC.
3. During the investigation of this case the dead- body of Muhammad Shahid deceased was got subjected to post-mortem examination, the appellant and his co-accused were arrested, a pistol was recovered from the appellant's possession and then, after competing the other formalities, the investigation was finalized and a challan was submitted.
4. At the commencement of the trial the learned Trial Court framed a Charge with three heads under Sections 148, 302/149 and 302/109, PPC against the appellant and his co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced as many as thirteen witnesses in support of its case against the appellant and his co- accused including Muhammad Rashid complainant (PW9) and Muhammad Ashraf (PW10) who furnished the ocular account of the incident in question, In their, statements recorded under Section 342, Cr.P.C, the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. However, while responding to question No. 12 the appellant responded as follows:- "I am innocent, In fact on the day of occurrence I along with Iqbal my co-accused were going to our village from Gojra City. When we reached near the place of occurrence Shahid deceased was present on the road. Shahid deceased forcibly stopped our bicycle and abused me, I also abused him in reply. Shahid deceased was a desperate person and due to his previous enmity he took out chhurri/dagger and launched attack on me, I retreated, and under the apprehension of my death
(life) in defence of my person I fired twice on Shahid, who succumbed to the injury. I appeared before the police and my first version before the police was also the same as mentioned above. My version was found correct during the repeated investigations. Shahid deceased was declared aggressor during the investigation. Ch. Ehsanu Haq the then MPA is a relative of complainant who used to appear before police during investigation, and due to his influence he got me falsely challaned in this case".
The appellant and his co-accused opted not to make any statement on oath under Section 340(2), Cr.P.C, but Tariq Faruq, Halqa patwari was produced in their defence as DW1. The learned Trial Court also recorded the statement of Rana Muhammad Aslam, S.P. As CW1 as the said officer had partly investigated this case.
5. At the conclusion of the trial the learned Trial Court acquitted the appellant's six co-accused but, after finding the case against the appellant to have been proved beyond reasonable doubt, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
6. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance, It has been argued by the learned counsel for the appellant that the.
Prosecution had failed to prove its case against the appellant beyond reasonable doubt and also that the circumstances of this case pointed towards plausibility of the defence version, It has been maintained by the learned counsel for the appellant that in the circumstances of this case a right of private defence was available to the appellant as it was Muhammad Shahid deceased who filed aggressed against the appellant and the learned Trial Court itself had observed about exceeding of right of private defence by the appellant, It has further been argued by him that the occurrence in this case had not taken place in the manner stated by the prosecution and that there were indications available in this case to find that Muhammad Shahid deceased and the appellant had come face to face with each other per chance whereafter the former had been killed by the latter on the basis of something happening between them at the spur of the moment, It has further been argued that the Investigating Officers had concurred in their opinion that it was Muhammad Shahid deceased who had launched the initial aggression against the appellant and that the appellant had acted in exercise of his right of private defence, It has lastly been maintained by the learned counsel for the appellant that the case in hand is not a fit case for awarding the extreme penalty of death against the appellant. As against that the learned Assistant Advocate-General assisted by the learned counsel for the State and the learned counsel for the complainant have argued that the prosecution had succeeded in proving the guilt of the appellant to the hilt and there was no mitigating circumstance available in this case so as to reduce the appellant's sentence. They have further maintained that the appellant had admitted killing the deceased but he had failed to produce any evidence in support of his version of the incident. Thus, according to them, it was an open and shut case against the appellant.
7. After hearing the learned counsel for the parties and going through the record be have observed that the date, the time and the place of occurrence apart from the weapon used therein are admitted by the parties and in his statement recorded under Section 342, Cr.P.C, the appellant had not only admitted his presence and participation, it he alleged incident but had also gone 0n to admit that he was the one who had killed Muhammad Shahid deceased by firing at him. In a criminal case two questions are of vital importance, i.e. Firstly, as to who had done it and secondly, as to whether the person doing it had any legal Or factual justification for doing it. It is true that the onus of proof regarding the first question is always on the prosecution but the moment an accused person admits killing the deceased under whatever circumstances onus of the prosecution on the said general issue is automatically discharged and then the onus of proof shifts on to the defence to establish through independent evidence as to what legal or factual justification the accused person had for killing the deceased. According to the Qanun-e- Shahadat, 1984 a fact which is admitted may not be proved and when an accused person pleads any general or special exception the onus is always on him to prove the circumstances in that regard through independent evidence and the Court is to presume the absence of such circumstances, In the present case, as already observed above, the appellant had admitted killing the deceased and, thus, the onus on the prosecution regarding the general issue stood discharged and the onus had then shifted on to the appellant to prove through independent evidence or at least through circumstances otherwise becoming available on the record to show that he was justified in killing the deceased, In this context it has been found by us that although the appellant had taken a plea of exercise of right of private .Defence but he had utterly failed to discharge the onus on him in that regard, It is not denied that the appellant had not sustained any injury at the hands of the deceased, no chhurri/dagger allegedly being carried by Muhammad Shahid deceased at the time of the occurrence had been recovered from the spot or from the person or clothes of the deceased and no witness had been produced at all to support or substantiate the assertion of the appellant that he had fired at the deceased only after the deceased had assaulted the appellant with a chhurri!Dagger, In this view of the evidence available oh the record the submission of the learned counsel for the appellant regarding- exercise of right of private defence by the appellant or exceeding of such a right has utterly failed to impress us.
8. The other submission of the learned counsel for the appellant regarding the occurrence not taking place in the manner stated by the prosecution has also not been able to make much headway with us. The motive set up by the prosecution and stated by Muhammad Rashid complainant (PW9) had not been serious questioned by the defence at any stage of this case. The occurrence in hand had remained witnessed from its inception to its culmination and, thus, that was little room available for an argument that the said occurrence was a result of a chance encounter taking an ugly turn and unwittingly deteriorating into an occurrence of murder. The appellant had emerged at the scene having armed himself with a pistol and had straightaway, without further ado, started firing at the deceased. The statements made by Muhammad Rashid complainant (PW9) and Muhammad Ashraf (PW10) in that regard were absolutely consistent down to all the relevant and minute details of the main occurrence which statements had not only inspired confidence of the leaned Trial Court but the same have also impressed us with their consistency, forthrightness and straightforwardness. We are not ready to doubt those statements or their veracity simply on the basis of a hypothetical possibility of something else happening at the spot before start of the shooting by the appellant.
9. Adverting now to the submission of the learned counsel for the appellant regarding availability of mitigating circumstances in this case in respect of the sentence of the appellant we may straightaway observe that in the absence of even a scratch on his body to support his plea of exercise of right of private defence and in the absence of any positive evidence to substantiate his hypothetical theory of a chance encounter of the parties resulting in deterioration of the situation at the spot the appellant cannot be extended any benefit by us in the matter of sentence merely on the basis of suppositions or. Conjectures alone. Even otherwise the appellant had not fired at the deceased once or twice but he had fired at the deceased thrice while aiming at and hitting vital parts of the body of the deceased resulting in his death, In this view of the matter even if the conjectural submissions mentioned above are kept in view still there was. Absolutely no justification available with the appellant for taking an undue advantage of the situation and to kill the deceased mercilessly. The appellant never thought of maiming or. Incapaciating the deceased but he went only for a kill which he surely achieved and that too sadistically. Looked at from all these angles the appellant's case has failed to evoke our sympathy in the matter of sentence. Thus, we are constrained to observe that the normal wages of a crime of murder is death and in the circumstances of this case the appellant deserves no less.
10. For what has been discussed above Criminal Appeal No. 135 of 1999 preferred by Ashiq Hussain alias Nanna appellant before this Court is hereby dismissed and his conviction and sentence recorded by the learned Trial Court are upheld and maintained with a slight .Modification that instead of rigorous imprisonment to be suffered by him in case of default of payment of compensation to the heirs of the deceased he shall undergo simple imprisonment in that regard.
11. Murder Reference ,No. 196 of 1999 is answered in the affirmative and the sentence of death passed against Ashiq Hussain alias Nanna appellant by the learned Trial Court is hereby confirmed.