2004 P Cr (PLP)

ASIF SAEED KHAN KHOSA, J.‑‑‑ Muhammad Akbar appellant was convicted for an offence under section 302, P.P.C. vide judgment, dated 26‑4‑2001 rendered by the learned Judge, Special Court (Suppression of Terrorist Activities), Gujranwala and was sentenced to death and to pay a fine of Rs.1,00,

000. The fine, if recovered, was ordered to be paid to the heirs of Muhammad Shafique deceased by way of compensation. Through the same judgment the appellant's co‑accused namely Muhammad Aslam, Abdul Karim and Abid Hussain were acquitted by the learned trial Court. Another co‑accused of the appellant, namely Sher Muhammad had died during the trial. Muhammad Akbar appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.663 of 2001 and the State has called in question the acquittal of Muhammad Aslam accused through Criminal Appeal No.810 of 2001. We have heard both these appeals together and we propose to decide the same together through the present consolidated judgment.

2. The prosecution's case unfolded in the F.I.R. was that Ghulam Mustafa complainant and his brothers namely Ghulam Farid, Hameed, Ghulam Murtaza and Muhammad Shafique used to do business of selling vegetables in the Fruit Market, Gujranwala. At about 10‑45/11‑00 a.m. on 16‑7‑1999 the complainant and his brothers were busy in their business at their respective platforms when Muhammad Aslam accused armed with a rifle .244 bore, Muhammad Akbar appellant armed with a rifle .222 bore, Abdul Karim accused armed with a pistol .30 bore and Abid accused armed with a pistol .30 bore suddenly emerged there raising Lalkaras. Muhammad Aslam accused and Muhammad Akbar appellant shouted that they would avenge their excommunication from the Mohallah by Ghulam Mustafa complainant and his brothers and simultaneously Muhammad Aslam accused fired two shots at complainant's brother namely Muhammad Shafique hitting him on the side of his chest and above his left elbow. Both the said fires crossed body of the victim. Thereafter Muhammad Akbar appellant fired successive shots at the said Muhammad Shafique hitting him on his elbow and right thigh making exits from the opposite side of his body Abdul Karim and Abid accused kept on firing in the air and raising Lalkaras warding off the witnesses. Upon receipt of his injure Muhammad Shafique fell on the ground and the witnesses saved their lives by lying on the ground. According to the F.I.R. apart from the complainant and his brothers the said incident had also been witnessed Muhammad Zaman and others who were available in the market at time. Muhammad Shafique was removed by the complainant and brother namely Ghulam Farid to Civil Hospital, Gujranwala but succumbed to his injures upon reaching the hospital The motive set up the F.I.R. was that the complainant's sister namely Mst. Sadia married to Muhammad Akbar appellant but subsequently due to the harsh attitude of the appellant the complainant's sister had obtained a divorce from the appellant and the appellant bore a grudge in that regard. It had also been mentioned in the F.I.R, that even prior to the present incident Muhammad Aslam accused and others had fired at and injured complainant's brother namely Ghulam Murtaza and Muhammad Shafique deceased whereafter the respectables of the locality had got the matter patched up as a consequence whereof Muhammad Aslam accused and brother Muhammad Akbar appellant had shifted their residence away from the Mohallah of the complainant party. According to complainant Muhammad Aslam etc., nourished a grudge in that regard as well and they alongwith their father namely Sher Muhammad co‑accuses used to issue threats to the complainant party. According to the F.I.R Muhammad Aslam etc. had murdered Muhammad Shafique deceased the behest of their father namely Sher Muhammad co‑accused. On basis of a statement made by Ghulam Mustafa complainant in respect the said incident F.I.R. No.395 was registered at Police Station Baghbanpura, Gujranwala at 11‑45 a.m. on 16‑7‑1999 for offences under sections 302/34/109, P.P.C.

3. After registration of the above mentioned F.I.R. different Investigating Officers investigated this case and upon completion investigation a challan was submitted before the learned trial Court the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. against Muhammad Akbar appellant and his co‑accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution' produced as many as eleven witnesses in support of its case against the appellant and his co‑accused. In their statements recorded under section 342, CI.P.C. Muhammad Akbar appellant accepted his presence and participation in the alleged occurrence and admitted his killing Muhammad Shafique deceased but he maintained that he had done that in exercise of his right of private defence. The co‑accused of the appellant, however, denied their involvement in the alleged occurrence. None of the accused persons opted to make a statement on oath under section 340(2), Cr.P.C. However, four witnesses were produced by the appellant and his co‑accused in their defence. At the conclusion of the trial the learned trial Court found the prosecution's case against Muhammad Akbar appellant to have been proved beyond reasonable doubt and, thus, he was convicted and sentenced as mentioned and detailed above whereas his co‑accused were acquitted. Hence, the present appeals before this Court by Muhammad, Akbar, appellant and the State.

4. 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 Muhammad Akbar appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and also that the plea advanced by the appellant in his defence rang true and the same merits acceptance by this Court. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of Muhammad Akbar appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court. He has gone on to maintain that the learned trial Court was not justified in acquitting Muhammad Aslam accused as sufficient evidence had been brought on the record of this case by the prosecution fully establishing his culpability. The learned counsel for Muhammad Aslam accused has, however defended his acquittal the learned trial Court.

5. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway noticed that killing of Muhammad Shafique deceased by Muhammad Akbar appellant has not only been alleged by the prosecution but the same has also been admitted by the said appellant in his statement recorded under section 342, Cr.P.C. In the said statement, while answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him, the said appellant had responded as follows:‑‑ "In fact my mother‑in‑law Mst. Sahiba is my real maternal‑aunt. I alongwith my other brothers were brought up in the house of our maternal‑aunt. Mst. Sahiba and she used to deal with us in very cruel fashion. Due to her dominating nature she got divorced her daughter, Mst. Sadia due to petty matter against her free will and wishes. The sons of my paternal‑aunt were under the control of their mother and on her instruction they used to treat badly with me since the pronouncement of Talaq. On 3‑4‑1998 at about 11‑40 p.m. all the three sons of my maternal aunt in furtherance of their common intention attacked my house and after trespassing into the house caused severe beating to me. As a result of information the local police approached my house and rescued me from the assailants. The local police registered a case at the instance of Muhammad Anwar, A.S.‑I., the concerned Beat Officer against the brothers of Mst. Sadia my ex wife. I alingwith my brother Muhammad Aslam who was residing separately in those days decided at the asking of Mohallahdars to vacate the house which was given to me by my ex‑mother‑in‑law (maternal‑aunt) and we started residing somewhere else but unfortunately the place of business remained the same. My ex‑brother‑in‑law namely Mustafa, Murtaza, Shafique who also happened to do the business in the same market at a very short distance from me used to insult me in the market without any justification. On several times they gave beating and had not missed a single chance of humiliation during my stay in the market in connection, with livelihood. My brother- in‑law‑Shafique who happens to work at nearby Adda in the Sabzi Market brought ‑rifle with the purposes to commit my murder which I snatched and fired at him as a result of which be died. The P. Ws. were not present at the spot as Ghulam Mustala used to fetch commodities from outside the market and he was away in connection with his business while his brothers were also not present there. P.Ws‑ who had in fact seen the occurrence were not cited in the F.I.R. and among those Abdul Rashid son of Rehmat Ali, Ashiq son of Atta Muhammad, Muhammad Akram son of Nawab Din and Muhammad Ramzan were present at the spot. They had appeared before the Investigating Officers and verifies my statement before them The said Muhammad Ramzan had taken the injured to the hospital. My brother Muhammad Aslam was not present at the spot rather he had gone to the shop of my paternal‑uncle Wali Muhammad in connection with the business affairs". (Emphasis has been supplied by us). In every criminal case two questions are of paramount importance, i.e. firstly, as to who has committed the alleged crime and secondly, whether the person committing the crime had any legal or factual justification for committing the same. The onus on the general issue regarding the first question is always on the prosecution but the moment an accused person admits committing the relevant crime the said onus on the prosecution is discharged because by virtue of Article 113 of the Qanun‑e‑Shahadat Order, 1984 a fact which is admitted may not be proved. In the case in hand, as is evident from Muhammad Akbar appellant's statement under section 342, Cr.P.C. the said appellant had admitted his killing Muhammad Shafique deceased. However, the appellant had maintained in the said statement that he had killed the deceased in‑exercise of his right of private defence. According to the provisions of Article 121 of the Qanun‑e‑Shahadat Order, 1984 when an accused person advances a plea based upon any general or special exception contained in the Pakistan Penal Code the burden of proving the existence of circumstances bringing the case within such general or special exception is upon him and the Court is to presume the absence of such circumstances. In the present case the appellant had utterly failed to bring any circumstance on the record at all which could support his plea regarding exercise of right of private defence. He had only mentioned in the above mentioned statement that the deceased had brought a rifle for the purpose of committing the appellant's murder but that rifle had been snatched by the appellant and was then used by the appellant for killing the deceased resulting in the latter's death. According to the provisions of section 100, P.P.C. a right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the assailant launches an assault upon the appellant and such assault has to be of the kind mentioned in the said. provisions. An `assault' has been defined in section 351; P.P.C.; according to which "whoever makes any gesture, or any preparation intending or knowing it to be likely that any such gesture or preparation will cause any person to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault". Mere assertion of carrying a rifle by Muhammad Shafique deceased at the relevant time without any further ado could not possibly be treated by Muhammad Akbar appellant to be an assault for the purposes of section 100, P.P.C. so as to entitle the appellant to cause Muhammad Shafique's murder in exercise of right of private defence. It could well be that the deceased was carrying a rifle at the relevant time, if at all, for his own protection against a possible assault by the appellant himself. There is not even an iota of evidence brought on record by Muhammad Akbar appellant showing or even hinting at any aggression displayed by the deceased against the appellant. Muhammad Afzal (D. W.3) and Abdul Rashid (D. W.4) who had claimed to be eye‑witnesses l of the occurrence had not uttered even a word in this regard. The appellant had also failed to advance this plea during the investigation of this case and this is amply evident from the statement of the Investigating Officer namely Muhammad Ashraf, S.‑I. (P.W 11). In these circumstances the plea advanced by the Muhammad Akbar appellant in respect of exercise of his right of private defence had been found by us to be nothing but an afterthought meriting outright rejection. The appellant had admitted killing Muhammad Shafique deceased and he has failed to advance any factual or legal justification for doing the same. The normal wages of a crime of murder is death and in the circumstances of this case the appellant deserves no less. Criminal Appeal No.663 of 2001 preferred before this Court by the Muhammad Akbar appellant is, therefore dismissed and his conviction and sentence recorded by the learned trial Court are upheld and maintained with a clarification that he shall be deemed to have been convicted and sentenced under section 302(b), P.P.C. by way of Ta'zir and the sentence of fine passed against him by the learned trial Court shall be treated as an order regarding payment of compensation by him under section 544‑A, Cr.P.C. to the heirs of Muhammad Shafique deceased failing which he shall suffer simple imprisonment for six months.

6. As regards Criminal Appeal No.810 of 2001 preferred before this Court by the State against the acquittal of Muhammad Aslam accused recorded by the learned trial Court suffice it to observe that Dr. Abid Zia (P.W.6) had stated before the learned trial Court that all the fire‑arm injuries sustained by Muhammad Shafique deceased had been caused from the same angle and a possibility could not be ruled out that the same had been caused by one and the same fire‑arm. No weapon had been recovered from Muhammad Aslam accused's possession during the investigation of this‑case and different Police Officers investigating this case had consistently opined about his innocence. In these circumstances extension of the benefit of doubt to Muhammad Aslam accused by the learned trial Court with his resultant acquittal has not been found by us to be open to any legitimate exception. In this view of the matter Criminal Appeal No.810 of 2001 is hereby dismissed. M.B.A./M‑26/L Order accordingly.