2003 P Cr (PLP)

AMAULLAH KHAN YASINZAI, J.

Criminal Appeal No.78 of 1999 and Criminal Revision No.107 of 1999 are connected matters, having a common background arising out of the same judgment hence are being disposed of by instant judgment. Facts relevant for disposal of above matters are that, on the basis of a Fard-e-Biyan (Exh.P.1/A) of P.W.1 Syed Arif Shah, case F.I.R. No.112 of 1995 was lodged with the Gawalmandi Police Station, Quetta. In Exh.P.1/A, it was alleged that complainant is having a Dairy shop at New Afghan Road. On 10-11-1995 i.e. the day of incident at about 6-30 a.m. while going to his shop on the way, he went in the Wiry shop of Mumtaz, as he wanted to purchase his shop. In the shop of Mumtaz, when he was negotiating the matter with him, another person who was not known to him, was already sitting. Mumtaz :old him that said person is also interested in purchasing the shop. Whip discussing the matter with Mumtaz, he exchanged hot words with the said person and Mumtaz interfered and the matter was cooled down. Thereafter on the same day at about 10-00 a.m. his younger brother and his cousin Qaim Ali Shah came to his shop. He left his younger brother in the shop and went to play snooker with Qaim Ali Shah to the place of Abdul Rehman, situated at Akhtar Muhammad Road. Abdul Rehman was not present there, he returned back to his shop via Sirki Road. On the way the person with whom he had exchanged hot words in the shop. of Mumtaz alongwith another person came on bicycle and asked him, not to purchase the shop of Mumtaz, otherwise it would not be good for him and in the meanwhile scuffle started between him and the said person. During the fight he took out a knife and inflicted knife blows on his hand and chest to save him, his cousin Qaim Ali Shah intervened and the said person also inflicted repeated knife blows to his cousin, who on receiving the injuries fell down and the other person, who was with the assailant started beating him with kicks and fists. In the meanwhile, many people gathered there. Both the persons fled away, he and Qaim Ali Shah were brought to hospital, in a pick-up but before reaching the hospital, Qaim Ali Shah succumbed to the injuries. It was further stated that later on he came to know the name of the person, who inflicted injuries was Muhammad Azam. Marasla was sent to the police station for registration of case. Thereafter investigation of the case was initiated by Khushdil Khan Inspector. He received the information of incident through wireless message and went to the hospital, where he saw the deceased and injured Syed Arif Shah. He prepared inquest report of the deceased Exh.P.16-A and injury report of the injured Syed Arif Shah. He went to the place of incident and prepared inspection report Exh.P.13/B, He recorded the statement of witnesses, prepared site plan Exh.P.13/C. He arrested the appellant alongwith acquitted accused Muhammad Amjad on 17-11-1995 and during the course of investigation recovered the weapon of offence i.e. knife at the instance of appellant vide memo. Exh.P.13/D. At his request, Patwari prepared the site plan and thereafter he submitted incomplete challan Exh.P.13/E and after completion of investigation he submitted challan Exh.P.13/F. Charge was framed by the learned Additional Sessions Judge-II, Quetta under sections 302/324/34, P.P.C., which was refuted by appellant and acquitted cc-accused. To substantiate the accusation prosecution led evidence of following witnesses:-- (1) P.W.1 Syed Arif Shah is the complainant. He reiterated the contents of the Fard-e-Biyan Exh. P.1 /A. He deposed about the incident of 6-30 a.m. which took place in the dairy shop of Mumtaz. He narrated about the happening of second incident, which took place at 10-00 a.m. which resulted into unfortunate death of Qaim Ali Shah and injuries sustained by him. He further deposed that, he was called by the police in the police station, where during identification parade, he identified both appellant and acquitted accused Muhammad Amjad during identification parade and signed Exh.P.1/B. (2) P.W.2 Mumtaz Ahmad deposed that on the morning of 10-11-1995 at about 7-00 or 7-30 a.m. he was sitting in his shop alongwith his cousin Muhammad Ibrahim, when Syed Arif Shah and appellant Muhammad Azam fought with each other, and on his intervention, the fight was over and Syed Arif Shah left for his shop and Muhammad Azam went to deliver milk. This witness was declared hostile. (3) P.W.3 Gulzar Ahmad deposed that on the day of incident at about noon time, he was informed at Sirki Road that, a fight had occurred at the crossing of Rehmat Colony and Street No.2, thus, he reached at the place of incident. He saw two persons lying injured. Many people had gathered there and no one was coming forward to help them. He further stated that he and one Ishaque stopped a pick-up and brought the injured to Civil Hospital, Quetta. He further stated that injured Arif Shah told him that Muhammad Azam and his friend had attacked him and Qaim Ali Shah and inflicted injuries on them. Qaim Ali Shah expired on the way to hospital and Arif Shah was taken to the Casualty Department and in the meanwhile, the police came and enquired about the incident. He accompanied the police to the place of occurrence. (4) P.W.4 Ghulam Haider is the marginal witness to the blood secured from the stretcher where the dead body of the deceased was lying vide memo. Exh. P.4/A and the blood-stained clothes of deceased as well as blood-stained shirt of injured were also taken into possession in his presence vide memos. Exhs.P.4/B and 4/C. He acknowledge his signatures on the memos. (5) P.W.5 Farman Shah is the father of complainant Syed Arif Shah and uncle of deceased. He stated that, while he went home he was informed about the incident by the inmates of the house. Thereafter he went to the hospital and his son informed him about the said incident. (6) P.W.6 Abdul Karim Patwari prepared the site plan Exh.P.6/A on the directions of the S.H.O. (7) P.W.7 Mushtaq Masih is the marginal witness to the recovery of knife, at the instance of appellant. He deposed that on 29-11-1995, he was present in the police station and during investigation, appellant stated that after the incident, he threw knife and can get the same recovered. He accompanies the S.H.O. alongwith appellant to the place pointed by the appellant and knife was taken out from a sewerage drain. (8) P.W.8 Dr. Muhammad Umer externally examined the dead body of deceased and issued certificate Exh.P.8/A, which shows that he found following injuries on the person of deceased:-- "According to him, cause of death was injuries to the right ventricle of heart, left lung, abdominal viscera i.e. liver, leading to excessive haemorrhage, shock and death." (9) P.W.9 Abdul Hadi, Magistrate First Class, supervised the identification parade of the appellant and co-accused Muhammad Amjad, who were identified by complainant and he signed the certificate Exh.P.1/B. (10) P.W.10 Dr. Muhammad Amin Mengal, alongwith Dr. Shabbir Magsi, examined the injured Syed Arif Shah on the day of incident and he was referred to Surgical Unit for treatment. He issued certificate Exh.P.1/A and found following injuries on the person of injured:- (11) P. W.11 Syed Abdul Jabbar, Chemical Analyst carried out chemical and serological examination of the blood-stained cotton and blood-stained clothes and opined that the same contained, human blood. (12) P.W.12 Abdul Hakim is the marginal witness to the recovery of knife vide memo. Exh.P.12/A. He stated that on 19-11-1995, the S.H.O. was interrogating the appellant, when he disclosed that he can get recovered the knife, used by him in the commission of offence. On such disclosure, he accompanied the S.H.O. alongwith Mushtaq Masih and the appellant pointed out to a drain/Nala and on the directions of S.H.O., Mushtaq Masih took out the knife, which was Taken into possession vide memo. Exh.P.12/A in his presence and he acknowledged his signatures on the same and identified the knife article 12 to he the same. (13) P.W.13 Khushdil Khan is the Investigating Officer, who after completion of investigation, submitted challan. Appellant Muhammad Azam and acquitted accused Muhammad Amjad were examined under section 342, Cr.P.C. They also gave statement on oath as envisaged under section 340(2), Cr.P.C. Appellant in his statement admitted the incident, but stated that he acted in the right of his self-defence. In defence appellant examined two witnesses namely Biladar Khan and Nazir Khan D.W.1 stated that he was working in Wali Dairy situated at Sirki Road, Quetta and knew the appellant. On the day of incident, appellant stated that complainant and deceased attacked him and Amjad and as a result thereof he received knife injuries and thereafter he took out his own knife to save his life and attacked both complainant and deceased D.W.2 deposed that appellant and acquitted accused are his nephews. On the day of incident, appellant came to him at about 12-30 a.m. he was injured and blood was oozing from his injuries. Then he prepared "Desi cream" (Marham) and dressed the wounds of Azam and after seven days of the incident, he was arrested. On the conclusion of trial, learned Court acquitted accused Muhammad Amjad, whereas convicted appellant under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life and to pay Rs.50.000 as compensation to the legal heirs of deceased Qaim Ali Shah under section 544-A. Cr.P.C. and in default to further undergo six months' R.I. and under section 324, P.P.C. appellant was sentenced to suffer R.I. for five years and to pay Rs.20,000 as Daman to injured Syed Arif Shah. Both the sentences were ordered to run concurrently besides benefit of section 382-B was also extended to appellant. Appellant filed instant appeal from jail which was registered as Criminal Jail Appeal No.78 of 1999, challenging his conviction and sentence whereas complainant Arif Shah, Syed Pir Azam and Bibi Zaibun Nisa (father and mother of deceased) filed Criminal Revision No.107 of 1999 for enhancement of sentence awarded to appellant. Mr. Ehsanul Haq, learned counsel appearing for appellant contended, that appellant instructed his father to file an appeal on his behalf, but the father could not file appeal, thus the same vas filed by appellant himself through Superintendent Jail, due to which appeal was filed after a delay of three days. He farther stated that, since appellant was in custody and the father could not file appeal, therefore, the delay so occurred may be condoned. In this behalf, he placed reliance on 1986 SCMR

536. On merits, he emphatically argued that, appellant acted in exercise of right of self-defence and caused injuries to the complainant and deceased, as he apprehended danger to his own life at their hands. In alternate, he argued that, at the most it could be a case, where appellant exceeded his right of self-defence. Thus, the conviction, should have been recorded under section 302(c), P.P.C. Learned counsel contended that, if at all both the aforesaid pleas are not considered then conviction can still be recorded under section 302(c), P.P.C. as it was a case of sudden fight. In support of his contentions, learned counsel placed reliance on the following case-laws:-- (i) PLD 1953 FC 93. (ii) PLD 1958 SC (Pak.) 242, (iii) PLD 1959 Pesh. 1, (iv) PLD 1959 Lah. 753. (v) PLD 1965 Quetta 33, (vi) 1971 PCr.LJ 309, (vii) 1972 SCMR 264, 549 and 597, (viii) PLD 1972 Lah. 129. (ix) 1973 PCr.LJ 656, (x) 1975 PCr.LJ 396, (xi) 1991 SCMR 800, (xii) 1991 MLD 1949. (xiii) 1992 SCMR 1983 and 2047, (xiv) 1995 PCr.LJ

938. Regarding exceeding right of self-defence, learned counsel relied on PLD 1963 SC 470, 1971 SCMR 476, 1975 SCMR 80. 1976 SCMR

155. Regarding mitigating circumstances, he relied on 2001 SCMR

51. Learned counsel pointed out that the appellant has already undergone the sentence and has been released, therefore, his sentence cannot be enhanced as it would amount to awarding of another sentence. To support his contention he placed reliance on 2003 SCMR

579. Mr. Muhammad Jaffer, learned counsel appearing for the State. However while opposing the appeal contended that plea of self defence as set up by the appellant is not available to him and the plea taken is very improbable and not compatible with the facts of the case. In support of his arguments, he placed reliance on 1999 SCMR 1957. 2001 SCMR

51. Mr. Muhammad Aslam Chishti, learned counsel appearing on behalf of complainant contended that the appeal filed by appellant was time-barred and grounds raised in the affidavit were an afterthought. Learned counsel contended that, appellant was satisfied with the sentence awarded to him, therefore, he did not file appeal and further pointed out that the appeal was filed, after the criminal revision was filed by complainant for enhancement of sentence, as a counter-blast, Further plea of self-defence, as taken by appellant, is not supported by any evidence. The plea of self-defence is an afterthought and has been taken only to save himself from the conviction and further stated that, plea taken was not supported by any evidence. Learned counsel further argued that appellant acted violently and caused injuries on the vital part of complainant and deceased, since the charge has been established and the ordinary sentence under section 302, P.P.C. is the normal penalty of death, thus, the sentence may be enhanced. Learned counsel, in support of his plea, placed reliance on 1998 SCMR 1976, 2001 SCMR 988 and PLD 2001 SC

416. We have heard the learned counsel for parties at length and have also minutely examined the record of case with their assistance. Coming to the first contention of Mr. Ehsanul Haq Khan, learned counsel for appellant, regarding condonation of delay. It was argued that Vakalatnama was signed by appellant and was given to his father for filing of the appeal, but the same was not filed and referred to the affidavit of the father of appellant. It may be pertinent to observe that since criminal revision for enhancement of sentence was also admitted, notice whereof was given to the appellant as to why the sentence may not he enhanced from life to death. Thus, taking into consideration the affidavit of the father of appellant coupled with the admission of criminal revision and filing of jail appeal, we are inclined to condone the delay. Accordingly the contention of Mr. Muhammad Aslam Chishti, Advocate is repelled. As the entire case will be re-opened for re-appraisal of the evidence in criminal revision for enhancement of sentence, therefore, in, view of the above delay in filing of appeal is condoned. Before dilating upon the merits of the case, it may be pointed out that, in cases where plea of right of self-defence is taken by an accused and father, if there are two different versions, put forth by the prosecution and the defence, certain principles have been laid down by the Superior Courts, which have been consistently followed and further it has been held that, burden of proving a criminal case beyond all reasonable doubt and further bringing home the guilt, is always upon the prosecution, irrespective of the plea taken by the accused. Inasmuch as that, if the accused succeeds in creating a reasonable doubt in the prosecution case and even if a specific plea such as, right of self-defence, may not have been taken, still it can be gathered from the facts of the prosecution case, that the accused, acted in right of self-defence, then he shall be entitled for acquittal. Besides, it is well-settled that verdict muse be given not on special pleadings, advanced by an accused person, but upon appraisal of the whole case, for proper dispensation of justice. It would be appropriate to refer to the guidelines laid down by superior Courts, in such cases. In PLD 1953 FC 93, following observations were made by the Honourable Chief Justice Mr. Justice Abdul Rashid, as he then was, which have been consistently followed:-- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward 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 matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused and to prove that none of those defences would be of any assistance to him." In the same judgment, his Lordship Mr. Justice A.R. Cornelius as tie then was, observed as under:-- "I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of reasonable doubt' which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i.e. to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond reasonable doubt. If then an accused person is able to establish by evidence or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the, prosecution must necessarily fail. Such intention may of course, be established by proof of circumstances surrounding an evident act of cruelty causing death and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused person himself, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility of the defence plea being true to order to provide the preponderance of probability necessary for a 'prudent' to act on the footing that the accused's act was performed with the sole intention of killing, or of causing a necessarily fatal injury." After observing so, following guidelines were laid down:-- "It is, of course, not possible to arrive at any conclusion that the accused person acted as he alleges he did, on a consideration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circumstance appearing in the case and only then can a Court be in a position to weight the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly. it is as necessary to place the defence version and its supporting evidence and circumstances in juxta-position to the prosecution case for the proper estimation of the extent to which the charges may be held to have been proved, as it is to examine the pro-section case side by side with the defence case, in reaching a decision do the accused's special pleading." Re-affirming the view taken earlier in PLD 1953 FC 93, following observations were made by his Lordship (Mr. Justice A.R. Cornelius as he then was) in PLD 1958 SC (Pak.) 242: "It appears to us that there is a similar error appearing in the judgment under appeal. The learned Judges have been content to declare that the plea of self-defence raised by Shamla was not reasonably possibly upon a single consideration, namely that despite having been fired at, he himself `escaped scot-free'. We have ourselves enumerated a number of circumstances which go to support the possibility of Shamla's plea of self-defence being true. We entertain no doubt that the answers to these question must be that the evidence of the prosecution in this case was of highly doubtful character, and that when the acceptable balance of that evidence, assuming that there was such a balance is set against the case of self-defence raised by Shamla, the conclusion is inescapable that on the general issue the prosecution had completely failed." The view taken in Safdar Ali's case was followed in PLD 1965 Quetta 33, wherein following observation was made:-- "The position as it emerges from the above authorities leads to two clear inferences, firstly, that the plea of the right of the private defence could still be allowed even if it is not specifically pleaded by the accused, provided such an inference is warranted from the evidence on the record which of course should be very clear, and secondly, the right of private defence could even be allowed on the basis of the solitary statement of tire accused himself provided it was found to be reasonably possible creating a reasonable doubt regarding the truth of the prosecution case." Yet the said view was again re-affirmed in 1972 SCMR 597 by making following observations:-- "The plea of 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 195 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 he taken on the entire evidence and not on the special pleading. It is thus clear that the onus is entirely on the prosecution to prove its case beyond any reasonable doubt. If in the facts and circumstances of the case as in the present one there appears a likelihood of the existence of a right of private defence, the accused is entitled to the benefit of this right, for, such a situation will react on the whole prosecution case acid will lead the Court to hold that the prosecution has failed to prove its case beyond any reasonable doubt." It may be pointed out that aforesaid view has been consistently followed by the apex Court. Reference can be made to 1992 SCMR 1983, wherein following observations were made:-- "On the basis of the above authorities, one can urge that once the right to exercise private self-defence is established, the same cannot be defeated lightly, but at the same time, the force used must be in proportion to the injury to be averted and must not be employed for the gratification of vindicativeness or malicious feeling. The right of private self-defence is to be used as a shield toward off an unwarranted attack to person or property but it cannot be used as a vehicle for provoking an attack. In other words, it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose. The Court will have to examine the above question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked. who exercises the right of private defence." On the basis of above case-law, it can safely be held that, burden of proof in a criminal case, remains on the prosecution throughout the case and the burden is not shifted on the defence. The prosecution, has to prove its case against the accused, beyond any reasonable doubt. The fact that, accused has raised a plea which has not been proved or found to be untrue by the Court, still it would not relieve the prosecution from its burden. Inasmuch as no adverse inference can be drawn against the accused on account of his failure to prove a plea, I advanced by him. It is well-enterenched principle of law that, burden to prove, a specific plea taken by an accused is not as heavy, as it is on the prosecution. It has been consistently held that, an accused discharges his burden if he succeeds in creating a dent in the prosecution case by making it doubtful shall be entitled to acquittal. It may be pointed out that where there are two versions of the occurrence, i.e. one set up by prosecution and other pleaded by defence, it becomes the duty of the Court to put both the version in juxta-position and thereafter to draw inference. Coming to the merits of instant case, in view of the principles, enlightened in the aforesaid authorities. Mr. Ehsanul Haq, learned counsel argued with vehemence that, appellant injured the complainant and deceased Qaim Ali Shah, who lost his life in the occurrence. According to the learned counsel it was the complainant party who attacked the appellant and his brother, while they were corning to their Dairy, after delivering milk and the motive set up by the prosecution was that the incident took place in the early hours of morning in the shop of P.W. Mumtaz Ahmad. Learned counsel contented that since P.W. Arif Shah was humiliated by the appellant in the morning and he was caught from his shirt, but due to intervention of P.W. Mumtaz, the matter was cooled down, hence the complainant had nourished the said humiliation and dishonour, at the hand of appellant, therefore, he brought his cousin Qaim Ali Shah to avenge the same. It may be pointed out that P.W.1 Arif Shah while deposing about the alleged unfortunate incident which took later, stated that while they reached Street No. 1. they saw two persons, coming on bicycles who stopped near them and one of the them i.e. appellant was the same, who had quarreled with him in the shop of Mumtaz and asked him not to purchase the said shop and threatened him that, if he intended to do so, it will not be good for him. In the meanwhile he attacked him with a knife in his hand. It may be observed that, at the place of incident, the complainant and deceased were going towards their shop, while coming from the snooker shop. Admittedly the appellant and acquitted accused, were coming on a bicycle. Such portion of the statement of P. W. has not been rebutted that appellant and acquitted accused were coming on bicycle and on seeing the complainant and deceased, they stopped near them. It may be observed here that the incident which took place in morning time, infuriated the appellant, regarding purchase of the shop of Mumtaz. He held the complainant from his shirt, which shows that, he was obsessed with purchasing the shop. We are not persuaded to agree with the contention of learned counsel that appellant while injuring the complainant and deceased acted in self-defence. The plea set up by appellant does not get any support either through his own statement or from the prosecution case. Further the conduct of appellant and the trend of cross-examination by the learned counsel on the witnesses throughout; the case, reacts to the plea of appellant and negates his plea. At this juncture. it would be relevant to refer to the statement of appellant himself recorded under section 340(2), Cr.P.C. For convenience sake, relevant portion is reproduced hereinbelow:-- "I alongwith my brother, after finishing the work of hawking/Phairi, returned towards dairy. When I reached Rehmat Colony Gali No.2, I saw that Safdar Snah was sitting: alongwith another person. Both of them called me, and they attacked on me with knives, which hit me on shoulder, chest and on back. I was afraid/frightened anal for safety, I also took out knife and attacked on them for safety of my life, because if I would not beat them, then they would have killed me." It may be pointed out that, said portion of the evidence does not get support from the statement of defence evidence or from the prosecution case. Appellant stated that he was attacked by the complainant and deceased with knives. The said portion has not been substantiated through any evidence. If at all appellant had received knife injuries and thereafter he took out his knife and inflicted blow after blow on the complainant and deceased, to save his own life, then in such circumstances, lie had no reason to abscond from the place of incident, but he absconded, till his arrest i.e. 17-11-1995. Besides-, no medical evidence has been placed on record to show that he sustained injuries at the hand of the complainant and the deceased inasmuch as, the said injuries could have been exposed/shown in 'the Court, which was not done. He only produced his uncle (D.W.2) in his defence, who stated that, he treated him with some Desi Marham. It may be pointed out that, even if the injuries were treated with traditional medinel, still the marks of the injuries could not have been healed to such extent, that it cannot be seen on his body. Thus, the plea has not been proved. Further when both the persons i.e. complainant and deceased received injuries, at the hand of the appellant, they were taken to hospital by P. W.3 Gulzar Ahmad, a passer-by, who did not see any knife in the hand of deceased and the complainant nor the same was seen lying at the place of incident. On the contrary, by taking into consideration the injuries sustained by complainant, it shows that he received as many as six incised injuries on different parts of his body and it is a miracle that, he survived. Even the injuries on the person of deceased would show that, he was violently stabbed, at least appellant must have had knowledge that, such injuries were likely to cause death in the ordinary course. It is yet hard to believe that a person attacked by two persons with knife, still it is possible for him to react so actively. As stated by appellant that first the deceased and complainant attacked him, and thereafter he took out his knife and attacked them to save his life. His statement is further falsified from the fact that he could not account for the injuries sustained by him on his body. The fact that he received knife injuries were neither proved through medical evidence nor found on his body at the trial. It can be safely held that an incised wound treated in hospital in the modern way through medicines can be healed sooner then by applying traditional method of Marham only. Thus, the plea taken by appellant has not been proved and on re-appraisal of the entire evidence, in the instant case, the plea of appellant, is not a worthy moment consideration, in presence of over-whelming evidence to the contrary produced by the prosecution. Thus, in our considered opinion the prosecution has proved its case against appellant beyond any reasonable doubt. Coming to the second contention of learned counsel that, the plea of grave and sudden provocation has been proved. In the entire case, there is nothing on record to show that, incident occurred at the spur of moment and appellant acted in the sting of sudden and grave provocation. The matter may have taken place at the spur of moment, had complainant and deceased on seeing appellant and acquitted accused coming on the bicycle, took up the a fight. There is nothing to show that, it was due to grave arid sudden provocation. It may be pointed out that conduct of appellant shows that he is a hot-headed and violent person. Even he admitted that in the early hours of morning, when he was discussing the sale of shop, he exchanged hot words with complainant, being observed with the idea of purchasing the shop. Though the prosecution case is based on the solitary statement of P.W.1, but it is settled that conviction can be based on the statement of al solitary witness, if it is confidence inspiring. In the case in hand, the statement of P.W.1 is fully supported by medical evidence, coupled with the recovery of knife, which has not been disputed by appellant and even the appellant in his statement has stated that, he inflicted the injuries though as per his own statement, the incident did not take place in the manner as deposed by prosecution, but failed to prove the same. On the contrary, as observed hereinabove, P.W.1 withstood the test of a lengthy cross-examination nothing could be elicited from him, benefiting the accused. Hence the contention of learned counsel for appellant is repelled. Reverting to the criminal revision filed by complainant party. Mr. Muhammad Aslam Chisthi, learned counsel contended that appellant acted violently and inflicted six injuries on the person of complainant and four injuries on the person of deceased, which proved vital and same has been proved through medical evidence and no extenuating circumstances exists in the case to mitigate the sentence. Mr. Ehsanul Haq learned counsel while supporting the judgment, stated that the trial Court has given sound reasons for awarding lesser punishment and further pointed out that, since appellant has already undergone the sentence and has been released from the jail, therefore, he cannot be convicted for the second time. Mr. Muhammad Jaffer Khan learned State Counsel however, did not support for the enhancement of sentence. Mr. Muhammad Aslam Chishti, learned counsel contended that, once it has been proved by the prosecution and no extenuating circumstances exists to mitigate the sentence thus, normal penalty of death should be awarded to appellant. In this reference, he made reference to PLD 1976 SC

460. Relevant portion whereof' reads as under:-- "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Court to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precaution to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the Rule of placing the onus on the prosecution conceding to the accused the liberty of a privileged liar, the Courts' responsibility to spell out reasonable existence of an un pleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the legality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not convicted to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerates and distorted F.I.Rs., the reluctance of eye-witnesses to come forward the dishonest investigation, the false witnesses and their frequent subordination and above all the lingering trail of appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trail or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P.P.C. in a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P.P.C. does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence." Though the trial Court has not given any reasons for awarding lesser punishment, but in our considered opinion no mitigating circumstances exist. The trial Court has also given, benefit of section 382-B, Cr.P.C. and has convicted appellant under section 321, P.P.C, for causing injuries to complainant and whereas has directed that both the sentences to run concurrently. It may be pointed out that, awarding of sentence is primarily the function of the trial Court and the Appellate or Revisional Court, as a rule would be slow in interfering with such sentence, unless it is shown that, sentence so awarded is illegal or contrary. In this regard reference may be made to 2000 SCMR 1166. Further in 2003 SCMR 579, the Honourable Supreme Court has held that, once the appellant has undergone or served out the legal sentence for the offence, then he cannot be awarded another sentence for the same offence, as it would be in violation of Article 13 of the Constitution read with section 403, Cr.P.C. In view of the dictum laid down in the aforestated judgments, we are not inclined to convert the sentence of life imprisonment to that of death, as the petitioner has already undergone his legal sentence. However, after going through the impugned judgment as observed by us hereinabove, in our considered estimation, the appellant acted violently while causing injuries to the complainant and in the heat of passion also inflicted injuries to the deceased, which proved fatal, without any r justifiable reasons, thus, to meet the ends of justice, further keeping in view the facts of the case and considering the case-law, laid down in PLD 1976 SC 460 in our considered opinion that appellant on account of extraordinary remissions, has not even served a period of 14 years, further no ground exists for ordering the sentences to run concurrently. Therefore, as a result of the above discussion, benefit of section 382-B, Cr.P.C. extended to appellant by trial Court is withdrawn and sentence awarded on both the counts i.e. under sections 302 and

324. P.P.C. are ordered to run consecutively. Appellant be taken into custody to serve out the remaining period of his sentence in Central Jail, Machh. With the above modification in sentence, the appeal and criminal revision are dismissed. N.H.Q/181/Q Sentence enhanced.