2006 PLP 1023 (MLD)

JEHAN ZAIB RAHIM, J.

This appeal is directed against the judgment and order dated 15-9-2004 passed by the learned Additional Sessions Judge-I, Mansehra whereby appellant, Muhammad Afzal son of Mata Wali, was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a fine/compensation of Rs.50,000 or in default thereof to further undergo six months rigorous imprisonment. The fine/compensation if recovered shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. Brief facts of the case are that Muhammad Javed Khan, A.S.-I. while on gasht, received information that murder has been committed in village Lus Mera-cum-Bararkot. He, along with other police officials, went to the spot where complainant, Ali Zaman reported to him that the appellant, along with his son Muhammad Khalid, was cutting woods on his land, when he with his wife Mst. Sakina and son Arshad reached the spot and restrained him from cutting the wood due to which an altercation took place. In the meanwhile, Muhammad Khalid brought .12 bore rifle and handed over to the appellant and asked him to kill. The appellant fired four/five shots and as a result of which, his wife was hit and died on the spot. The appellant and his son fled away from the spot. The occurrence was also witnessed by Sain and Shah Zaman, who attracted to the spot on hearing the noise. The motive for the occurrence was a dispute over the landed property. Muhammad Javed Khan, A.S.-I. recorded the report on the spot in the shape of murasila and sent to the Police Station for registration of the case. Accordingly, a formal F.I.R. No.57, dated 5-6-1999 was registered against the appellant and his son Muhammad Khalid under section 302/34, P.P.C. at Police Station Garhi Habibullah. He took into possession the dead body of Mst. Sakina Bibi, prepared the injury sheet, inquest report and sent the dead body to the mortuary for autopsy. He inspected the spot, prepared the site-pan, collected blood-stained earth/pebbles and five empties of .12 bore freshly discharged. He also took into possession blood-stained shirt with corresponding cut marks, a phial containing pellets recovered from the dead body along with post-mortem report sent by the lady doctor from the hospital. He arrested the appellant and on his pointation recovered a double barrel shotgun bearing No.A5405/GMB country made from the cattle shed of Aksar alias Mian, the brother of appellant giving the smell of freshly discharged and prepared the site sketch. He, on 7-6-1999 prepared the injury sheet of the appellant and, got him examined in the Civil Hospital Garhi Habibullah. He produced the appellant etc. before the Illaqa Judicial Magistrate, where he recorded confessional statement and thereafter he was sent to judicial lockup. He sent the .12 bore shotgun and its empties to the Firearms Expert and bloodstained articles to the Serologist for opinion and received the reports in positive. He recorded the statements of P.Ws, completed the investigation and handed over the file to the S.H.O. concerned, who submitted complete challan against the appellant etc. in Court for trial. The copies of the relevant documents as required under Section 265-C, Cr.P.C. were supplied to them. The charge was accordingly framed against them to which they pleaded not guilty and claimed trial. Muhammad Khalid, being minor tried separately by the same learned Judge as Juvenile Court. The prosecution in order to prove the charge and substantiate the allegations levelled against the appellant and his son produced twelve witnesses at the trial. Fazal Khan, S.H.O. (P.W.1) had submitted complete challan in Court. Rafiuz Zaman, A.S.-I. (P.W.2) had registered the F.I.R., Exh. P. A. Muhammad Mumtaz (P.W.3) had identified the dead body and was marginal witness to the recovery memo, Exh. P.W.3/1 vide which the Investigating Officer took into possession bloodstained shirt. Sajjad Ahmad (P.W.4) was marginal witness to recovery memo, Exh. P.W.4/1 vide which the Investigating Officer took into his possession bloodstained earth pebbles and five empties of .12 bore. Muhammad Javed, A.S.-I. (P.W.5) was marginal witness to recovery memo, Exh. P.W.-5/1 vide which the Investigating Officer took into possession a phial containing pellets recovered from the dead body at the time of post-mortem examination. Muhammad Rafique, constable (P.W.6) had escorted the dead body to the mortuary and after post-mortem examination brought the post-mortem documents along with bloodstained shirt of the deceased having corresponding cut marks and handed over to the investigating officer. Khalil Khan Khalil (P.W.7) the Judicial Magistrate, Mansehra had recorded the confession of appellant, Exh. P.W.7/1 vide memorandum of inquiry Exh.P.W.7/2. certificate Exh.P.W.7/3 and application of the police Exh.P.W.7/4, Ali Zaman (P.W.8), the complainant had reiterated the entire occurrence on oath before the Court. Salt' (P.W.9) was an eyewitness of the occurrence, who supported the complainant's case. Nighat Shaheen, lady d6cTor (P. W.10) had conducted the autopsy on the dead body of Mst. Sakina Bibi, aged about 40 years and found fire-arm entrance wound 60 in number on fronto-lateral aspect of right abdomen, lower chest and breast and 40 in number on right fronto-lateral aspect of arm. Sabir Khan, A.S.-I. (P.W.11) recovered .12 bore double barrel shotgun on the pointation of appellant from the fodder of cattle shed of his brother Aksar. Exh. P.W.11/1 and Exh.P.W.11/2. The appellant could not produce the licence, therefore, a separate case under section 13 of the Arms Ordinance, 1965 was registered against him. Muhammad Javed Khan, A.S.-I. (P.W.12) had narrated the entire investigation above stated and produced murasila Exh. PA/1; injury sheet, Exh.P.W.12/1 and inquest report Exh. P. W.12/2 of the deceased; sketch of site of recovery of shotgun, Exh. P.W.-12/3; injury sheet of the appellant Exh.P.W.12/4; application for recording confessional statement of the appellant, Exh.P.W.12/5; application for sending .12 bore DB shotgun rifle and its empties of FSL, Exh.P.W.12/6; application for sending bloodstained articles of Serologist Exh.P.W.12/7 and received Serologist and Firearms Expert reports in positive, Exh. P. W.12/8 and Exh. P. W .12/9 respectively. The appellant, on the conclusion of prosecution evidence, was examined under section 342, Cr.P.C. He, in his statement, denied the charge and pleaded innocence. He stated that he was cutting a tree from his own land when the complainant, Ali Zaman along with his male and female relations came to the spot and pelted stones on him and as a result he sustained injury on his head. They also pelted stones on his house and extended threats to put his house on fire. He, while apprehending danger to his life and property, rushed to his house, closed the door behind and, in order to deter the aggressors and keep them away, fired 4/5 shots with the shotgun from the house. Later on he come to know that Mst. Sakina had met unnatural death through fire-arm injuries for which he was charged. However, he did not opt to lead any evidence in his defence or appear himself as his own witness in terms of section 340 (2), Cr.P.C. except for placing certified copies of his statement recorded in the complaint case Exh.D-2, statements of Ashfaque Exh. D-3, Javed Khan S.H.O. Exh.D-4, Dr. Fida Hussain, Exh.D-5, and copy of original sale-deed, Exh.D-6, The trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellant in terms above stated. Muhammad Khalid, his son was acquitted vide judgment and order dated 15-9-2004 and appeal against his acquittal was also dismissed by this Court vide judgment dated 17-2-2005. Feeling dissatisfied with the conviction and sentence, the appellant has come to this Court in the instant Criminal Appeal No.99 of 2004. Similarly, complainant, Ali Zaman being aggrieved also filed Cr.R.No.32/2004 for the enhancement of sentence. By this common judgment we propose to dispose of both the above matters directed against the same judgment. We have heard the learned counsel for the parties and have gone through the record with their able assistance. The learned counsel for the appellant argued the case at some length but could not make out a case 'for acquittal on merit. However, he last submitted that he would not press his appeal for outright acquittal but would pray only for mitigation of sentence, as it was a sudden fight at the spur of moment and the appellant had also sustained head injury as a result of stone pelted by the complainant party; he in exercise of his right of private defence to his person and property and resorted to aerial firing in order to deter the complainant party but the shots hit the deceased; the appellant had raised the plea of self-defence in his confessional statement and during his examination at the trial and he, as per law laid down by, the Apex Court, was not required to substantiate his defence plea through evidence, which is sufficient for the purpose of bringing his case from section 302 (b) to section 302(c), P.P.C. On the other hand, learned counsel for the complainant argued that the trial Court had already taken a lenient view and instead of awarding normal penalty of death had awarded imprisonment for life under section 302(b), P.P.C.; there is no reason for further mitigation of sentence as the appellant had admittedly fired 4/5 shots with double barrel shotgun and sieved the deceased's body with 120 pellets; his plea of self-defence raised has already been rejected by the competent Court while dismissing his private complaint and no appeal against the same has been filed by him; the appellant under Article 121 of the Qanun-e-Shahadat Order, 1984 was required to prove his plea of self-defence but he had failed to discharge his onus. However, he did not press his petition for enhancement of sentence. It is evident from the record that the ocular account of the occurrence was furnished by complainant. Ali Zaman (P.W-8) and eyewitness Sain (P.W.9). The presence of both the PWs had been admitted by the appellant in his statement under section 342, Cr.P.C. and in complaint case, Exh.D-2. Neither the complainant nor Sain had any motive either to falsely charge the appellant or to give distorted version of the occurrence. The appellant in his confessional statement. Exh.P.W.-7/1 recorded on the 3rd day of occurrence, i.e. 8-6-1999 had admitted his guilt that he was cutting wood on his land when the complainant, his wife and many others came to the spot, .started quarrel with him and he was injured on his head with a stone blow inflicted by the complainant. He under compulsion had fired 4/5 shots with the shotgun from a closed room of his house with which the deceased was hit and died. He in his statement in a private complaint filed from the jail after more than 3 months of the occurrence i.e. on 1-9-1999 had given the improved version of the occurrence that he and his wife, after receiving stone injury on his head, entered the house and the complainant party openly announced to put his house on fire and burn them to death and he, in order to disperse the crow, defend their person and property made aerial firing. He reiterated the defence plea in his examination under section 342, Cr.PC and exhibited the statements recorded in the complaint case as Exh.D.2 to Exh.D.5 respectively. The Investigating Officer in Exh.D.4 had deposed that it was not a cross-case and according to Exh.D.5 (Exh.P.W.12/4), the appellant had sustained simple 1" long skin/muscle deep injury on left temporal region of the skull. The contention of the learned counsel that the appellant's plea of self-defence, which was taken soon after his arrest and at the trial is sufficient to bring his case within the ambit of section 302(c), P.P.C. as he was not required to prove his plea through evidence, has no substance and, therefore, is repelled. No doubt the Hon'ble Supreme Court in Safdar Ali v. Crown (PLD 1953 FC 93) had observed; "It is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence, the Court is of the opinion that there is reasonable possibility that the evidence put forward by the accused might be true. It is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right because the prosecution has not proved its case beyond reasonable doubt????.that provision of law (section 105, Evidence Act) was enacted obviously to relive the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exceptions. But the burden cast on the accused under that section cannot be as heavy as the burden that rest on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 of the Evidence Act the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading"????..the fundamental principle is that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution????.The statement of law as contained in Woolmington's case has no more important purpose than that of preserving this fundamental principle by correct practice." The Apex Court, while following the ratio of Woolmington v. DPP; (LR 1935 AC 462) had observed that the decision in Woolmingtons' case is applicable in this country and far from being inconsistent with section 105 of the Evidence Act, 1872. In that case Woolmington was charged with murdering his wife. He claimed that he had shot her accidentally while threatening to shoot himself. He was convicted, the Court of appeal upheld his conviction but in House of Lords his appeal was allowed, conviction was quashed with observations:-- "Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to the defence of insanity and any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention; the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained ???..If the jury are either satisfied with (the accused's) explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted" ??.The actual decision turned on the point that Swift, 1.'s direction suggested that, the killing having been admitted, the legal burden of disproving malice aforethought shifted to the accused, but Lord Sankey's speech in the House of Lords also shows that even in cases in which the defence consists of something other than a denial of an essential element of the prosecution's case, a plea of provocation or self-defence for instance, the accused does not, as was formerly believed, bear a legal as well as an evidential burden." Safdar Ali's case was greatly influenced by the common law of England, which has no application in countries where the substantive and procedural laws are governed by statutes. The above case has decided that, irrespective of the provisions of section 105 of the Evidence Act, 1872, where the accused is failing to prove his special plea aiming at bringing his case within an exception, succeeding however in creating reasonable doubt in respect of his guilt, the Court is bound to give benefit of doubt to the accused if, after review of the entire evidence that has been produced by the prosecution and the defence, it is of the opinion that there is reasonable possibility that the evidence put forward by the accused plight be true; See also: Zarid Khan v. State (1972 SCMR 597). It was further observed in Ali Zaman v. State (PLD 1963 SC 152) that if the accused does not specifically plead self-defence, the plea can only be allowed on the basis of very clear evidence available on the record, which would go at least to the extent of showing that it was reasonably possible that the accused person had acted in self-defence. But later on the Apex Court had become more specific about the statutory burden of accused to prove his plea of defence and had observed that he has to lay foundation for his defence before the trial Court, which he wants to plead and justify his crime; Mukhtiar v. State (1975 SCMR 113) and the plea of self-defence, if not specifically pleaded before the trial Court, the same could not be considered at the appellate stage; Liaqat Ali v. State (PLD 2001 SC 216) or for the first time before the Apex Court; Muhammad Yasin v. State (2003 SCMR 231). Not only that, the special plea raised by the accused is required to be proved/substantiated by him through evidence. The Hon'ble Supreme Court in Mandoos Khan v. State 2003 SCMR 884 had observed:-- "Moreover apart from the prosecution evidence, the appellant had himself introduced a special plea that firing was done by appellant as such onus is on the accused to substantiate his plea, failing which the adverse inference will be drawn against him as per provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 (Abdul Haq v.. State PLD 1996 SC 01) wherein, it was held that when a person is an accused of any offence, burden of proving the existence of circumstances bringing the case within any of the general exception in the Pakistan Penal Code or in any other law is upon him and the Court shall presume the absence of such circumstances." Similarly, in Abdul Waheed v. State 2003 SCMR 66; it was held:-- "We are not inclined to agree with the contention of the petitioner's counsel mainly, for the reason that the petitioner in his statement under section 342, Cr.PC in unequivocal terms has admitted the incident. He does not deserve any leniency in the sentence as there happened no occasion for him to act in self-defence particularly when none from the side of the complainant including the deceased was armed with any lethal weapon creating apprehension in his mind that he would be killed or inflicted a grievous bodily hurt in case not retaliated'. Where a plea of exercise of right of self-defence has been specifically raised, then the burden to prove the same lies upon the accused. In view of Article 121 of the Qanun-e-Shahadat Order, 1984 it becomes incumbent upon the accused to prove that his case is attracted by any of the exceptions of section 100 P.P.C." Furthermore in Navid Akhtar v. Muhammad Saeed Khan 2004 SCMR 1469 it was observed:-- "The plea of self-defence taken by the petitioner appears to be unfounded as he failed to substantiate his claim by any cogent proof. Under Article 121 of the Qanun-e-Shahadat Order, 1984 the onus to prove the existence of circumstances bringing his case within any of the General Exceptions in the Pakistan Penal Code or within any special exceptions or proviso contained in any other part of the same Code or in any law, was on him which he failed to discharge and in such circumstances presumption can be drawn against him. Since the petitioner has jailed to prove his defence plea by any evidence so much so that he did not even appear under section 340(2), Cr.P.C. to give evidence on oath in disproof of the charges or allegations against him, therefore, presumption can be drawn against him and such a plea cannot be sustained in absence of any proof. There is no doubt that the prosecution has to prove its case and the defence version, if reasonably possible being true, can be taken into consideration but where such a plea is a mere claim and is not convincing and there is not even an iota of evidence in support of the such plea except for certain suggestions put to the P.Ws. in cross-examination which were categorically denied, such a plea cannot be maintained." Now the Apex Court had settled that the accused is required to take a specific plea of self-defence before the trial Court and to prove/substantiate the same through evidence as required under Article 121 of the Qanun-e-Shahadat Order, 1984 on the balance of probability that the plea is reasonably possible; Yara v. State (2005 SCMR 829). The bald statement of accused under section 342, Cr.PC is not enough to discharge his legal as well as evidential burden and in that case the Court may well be justified to draw adverse inference against him. Besides, the accused is further required to show reasonable apprehension of real, apparent and imminent danger to his person or property that if he had not reacted to the deceased's aggression, he would have been killed or sustained grievous hurt; Muhammad Dilbar v. State (2002 SCMR 1425) he has not exceeded his right of private defence, his reaction to the deceased's act was not violent and his case would fall within the purview of the provisions of section 1000, Toti Khan v. State .(2002 SCMR 1607). In this case, the appellant had admittedly fired 45 shots with double barrel shotgun from a hole inside a closed-door house, where he retreated for safe shelter from outside aggression, if any. He was left with no apprehension. As the danger, to his person from the aggressors had disappeared and ceased to exist. Further, it was not a case where the appellant, in order to deter of disperse the complainant party, had fired a short in the air which incidentally hit the deceased but he had exhausted the loaded shotgun at the complainant, reloaded twice and fired again and again and his acts cannot be said to have caused in exercise of right of self-defence. His acts had clearly manifested that his intention was not to deter the complainant party but was designed to shoot an unarmed woman from a hollow and to achieve the desired result, which he did, as the deceased according to the post-mortem report had received 120 pellet wounds on her body. He neither appeared in Court in terms of section 340 (2), Cr.P.C. nor produced any evidence in support of his defence or of aggression, if any, of the complainant's party. Mere existence of slight injury on the person of appellant would not be sufficient to establish the defence plea, as it is not difficult to create false and malicious evidence for the purpose of setting up a defence. Equally, the suggestions put forth to the eye-witnesses during cross-examinations are not enough to advance defence plea as the prosecution had put the same to the complainant and the eye-witness of the occurrence, who had firmly repudiated. The reasons given by the trial Court, while awarding imprisonment for life on the basis of contradictions between the ocular account and the site plan, were not legal. The Hon'ble Supreme Court had repeatedly observed that the site-plan by itself is not a substantive piece of evidence and could not be used to contradict or discredit unchallenged evidence of prosecution witnesses or to give preference over or outweigh the ocular account. It is equally settled that contradiction, if any, in one part of the evidence of eye-witnesses would not necessarily falsify the rest of their evidence. The testimonies of eye-witnesses were not challenged by the learned counsel which were duly corroborated with P.M. report, recoveries, Fire-arms Expert report and judicial confession of the appellant. The prosecution had admittedly discharged its initial burden and proved its case beyond reasonable doubt. Even otherwise the defence plea could not be accepted when the prosecution evidence has not been rejected. Therefore, the conclusion drawn by the learned trial Court, after discussing the entire evidence, is legal and we are constrained to maintain the same. Consequently, this criminal appeal having no merit is hereby dismissed and the conviction and sentence of imprisonment for life is maintained. However, the benefit under section 382-B, Cr.P.C. shall remain intact. The criminal revision being not pressed is also dismissed. H.B.T./82/P ??????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.