2022 P Cr (PLP)

MUHAMMAD AMJAD RAFIQ, J.

Murder of Safdar Iqbal was reported with pointed fingers upon the appellant and others, yet complainant showing distrust to result of investigation, opted to launch private prosecution splitting into two groups of offenders; Sheraz and Bilal being juveniles charged and tried separately, similarly, separate trial of Riaz appellant along with others was held in a private complaint emanating from FIR No.258/2014 under sections 302/34, P.P.C. registered at Police Station Miana Gondal, District Mandi Bahauddin, which resulted to his conviction and vide judgment dated 23.02.2017 the learned trial court sentenced him as under:- Imprisonment for life under section 302(b), P.P.C. with compensation of Rs.500,000/- under section 544-A, Cr.P.C., in default to further suffer simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was extended.

2. In the early hours of day at 9.00 a.m. on 21.09.2014, Safdar Iqbal along with Zulfiqar Ahmad (given up) went to collect chaff for cattle in the land of one Ghulam Rasool, where on using a particular path, faced the anger and annoyance of Riaz appellant, they revolted in the same coin giving air to fume and fury on both sides; Riaz warned them to be ready for this treatment; they left for destined place, complainant hearing about such altercation also reached to the place of occurrence with Qamar PW and in the meantime Riaz appellant carrying Repeater .12 bore along with Sheraz armed with Gun .12 bore double barrel, Bilal carrying hatchet, Ghulam Rasool and Naeem Umar variously armed reached there, Lalkara was raised by Bilal, two fires ensued from the gun of Riaz appellant hitting on right thigh of Safdar Iqbal; Sheraz also settled the score and two fires from his gun hit on the left thigh of Said Safdar Iqbal. Accused on their toe decamped; Safdar was taken to RHC Miana Gondal where he breathed his last. Motive alleged as mentioned above yet hatching of conspiracy was also alleged against Imtiaz Ahmad and Muhammad Nawaz, who stood acquitted from the charge during trial.

3. Being dissatisfied, complainant launched private prosecution wherein accused/appellant was summoned, he was charge sheeted to which he denied and claimed trial. The prosecution produced Riaz Ahmad Sub-Inspector (CW-6) who while giving details of his investigation deposed about his visit to the spot, preparation of injury statement and inquest report and dispatch of dead body to Hospital for postmortem examination. He also secured blood stained earth from the place of occurrence, prepared unscaled site plan, took into possession last worn clothes of deceased. On 15.10.2014 arrested Riaz/appellant and recovered gun .12 bore repeater and ultimately submitted the report under section 173, Cr.P.C. Muhammad Azam Sub-Inspector (CW-5) had also partially investigated the case. Dr. Manzoor Rasul Awan (PW-1) conducted autopsy, Javed Iqbal (CW-2) and Sikandar Hayat (PW-5) furnished evidence of abetment/conspiracy alleged hatched by accused persons Riaz, Imtiaz, Nawaz, Sarwar. Mukhtar Ahmad complainant (PW-3) and Qamar Abbas (PW-4) are witnesses of the ocular account. On close of prosecution evidence, the accused/appellant when examined under section 342, Cr.P.C. admitted the occurrence but came up with his own version in the following terms:- "In fact combine harvester was cutting paddy crop from the field owned by one Ahmad Malang resident of the village which was cultivated by me (Riaz accused). I along with my son Sheraz co-accused were collecting "Palra" of said paddy crop. Zulfiqar PW along with Zafar Iqbal, Safdar Iqbal (since deceased) also came there to collect "Palra" of paddy crop from the said field. I forbade them that this "Palra" is belongs (sic) to us. Said Zafar Iqbal, Zulfiqar Ahmad PW and Safdar Iqbal (since deceased) went from there. I came back to my home. Zulfiqar Ahmad PW and Zafar Iqbal Safdar Iqbal (since deceased) also came back from there. I released my cattle for watering them from canal. When my cattle were returning from the canal, Riasat son of Ahmad came there. All of a sudden, Safdar (deceased) and Zulafiqar PW came out from gate along with their weapons i.e Sota and hatchet and they stopped the said cattle in front of gate of my house. Safdar Iqbal (since deceased) raised Lalkara that I be taught a lesson for not permitting the lifting of "Palra" crop and kill me. The cattle went into the fields of Ghulam Rasul son of Nawab and I went into the field of my Bajra crop with the height of 1-1/2/2 feet. Riasat caught hold of me from my right side and when Zulfiqar PW and Safdar (deceased) attacked on me by their weapons, to save my life I made fire which landed on the right thigh of Safdar (deceased). During the efforts to save myself, two further fire-shots discharged from the gun suddenly which also landed on the left thigh of the deceased. After hearing the voice of fire, my son Sheraz (co-accused) attracted there. He made no fire on the deceased. I made only one fire to save my life. If I wanted to kill the deceased, then there was no hurdle in his way to kill Safdar Iqbal (deceased). No PW except Zulfiqar Ahmad was there. They belatedly tried to transfer Safdar Iqbal the then injured (since deceased) due to that his death occurred. I along with other co-accused had made no abetment. No other accused was present at that time with me. All the other co-accused have been implicated falsely being my close relatives. The above said fact was found correct by the two I.Os CW.5 and CW.6 and their investigation was also verified by the concerned DSPs and DPO of the District." The accused/appellant however, did not opt to produce defence nor appeared in the witness box under section 340(2), Cr.P.C. ultimately, all the charged accused were acquitted while he was convicted and sentenced as mentioned earlier.

4. Learned counsel for the appellant contends that presence of PWs produced by the prosecution is not established. Natural witness Zulfiqar Ahmad was given up which was major setback for prosecution casting an adverse inference against them. Stance of accused/appellant is more convincing yet defence is not obliged to supply weaknesses of prosecution through his evidence; therefore, deserves acquittal on the basis of principle laid down in a case reported as "Azhar Iqbal v. The State" (2013 SCMR 383). On the hand learned DPG assisted by learned counsel for the complainant stressed that statement of appellant under section 342 is a support to prosecution case, and it cannot be lightly ignored and placed reliance on case reported as "Nasir Mehmood v. The State" (2015 SCMR 423) while urging that conviction was on the right legal track.

5. As shall be seen from the statement of Riaz Ahmad accused/appellant recorded under section 342, Cr.P.C. he has admitted his own presence at the time and place of occurrence and further even the availability of Safdar Iqbal (deceased) along with one Zulfiqar Ahmad (not produced) at the time and place of occurrence also remains admitted, with exclusion of Mukhtar Ahmad (complainant PW-3) and one Qamar Abbas who was produced by prosecution in the witness box as PW-4.

6. The complainant (Mukhtar Ahmad) is the resident of Hisso Ana Dakhli Chak Aalam and the place of occurrence is village Baryar, it has come in the statement of complainant PW-3 that distance between his above residence and the place of occurrence is one kilometer and similar is the position with Qamar Abbas (PW-4) who is also resident of same Hisso Ana Dakhli and no plausible explanation has come on record by which they could justify their presence at the place of occurrence at the relevant time. It is also a fact which came on record through the statement of complainant that the place where from Safdar Ali proceeded to fetch "praali" is 7/8 acres from the place of occurrence. The complainant in clear terms stated that "on the day of alleged occurrence only Zulfiqar and Safdar (since deceased) went to collect "Paralli" prior to the instant occurrence." and that "I myself did not go to collect "Praali" in the company of Zulfiqar PW and Safdar. Exactly same has been the stance of Riaz Ahmad accused/appellant in his statement under section 342, Cr.P.C. Thus, the most natural and independent witnesses on above aspect could be Zulfiqar PW, whose presence has been admitted by the accused/appellant as well, but statement of this witness was withheld by the prosecution, though he was put for cursory statement.

7. The presence of Mukhtar Ahmad complainant (PW-3) and Qamar Abbas PW-4 is further doubted for the reason that though according to the complainant the occurrence took place on 21.09.2014 at 9.00 a.m. and he has not deposed that who told him about the earlier altercation and even their presence at the crime scene according to site plan is at distance from where one cannot view the hitting of fire with exactitude. After the occurrence he shifted Safdar injured to hospital RHC Miana Gondal situated at a distance of 14/15 kilometer from the place of occurrence where he succumbed, but according to Dr. Manzoor Rasul Awan (PW-1) who had conducted the autopsy, the dead body was received in the mortuary on the same day at 5.00 p.m., complete documents were received from the police at 6.30 p.m. and the post mortem was conducted at 6.40 p.m. Had the complainant (PW-3) or Qamar (PW-5) been present at the time and place of occurrence such unexplained and protracted delay would never have occurred and the police would not have taken so long to prepare and produce the relevant documents to the doctor for autopsy. These are the circumstances which are found sufficient to disbelieve the statements of PWs. Further investigating officers CW-5 and CW-6 categorically admitted during cross-examination that they found only Riaz at the place of occurrence and his version of firing at Safdar Iqbal was found correct.

8. Though Javed Iqbal (PW-2) and Sikandar Hayat (PW-5) were produced on the aspect of alleged conspiracy and according to these witnesses one week prior to the murder of Safdar they heard the voices of accused. Wherein accused Imtiaz and Nawaz were asking co-accused Riaz, Sheraz and Bilal to commit the murder of Safdar (deceased). Considering that both these witnesses are relatives of the complainant and the deceased, it is totally unbelievable that when both these witnesses, according to them had heard the conversion wherein, clearly plan under discussion was to commit the murder of Safdar, then how they could desist to report such an important factor to the close relative of said Safdar prior to the occurrence. In this view of the matter, this court has no doubt whatsoever to hold that this piece of evidence was in fact self-made creation, with no actual basis.

9. The above evidence of alleged conspiracy, instead of advancing the case of the prosecution has materially damaged it, for the reason that throughout it has been stance of the complainant that on 21.09.2014 at 9.00 a.m. hot words were exchanged by Riaz accused with Safdar and Zulfiqar and that was the reason that Safdar was done to death. This being the sole motive set by the complainant himself, how, it could be said that conspiracy had been hatched by the accused party one week before such date. Thus, this piece of evidence takes along with it even the motive part of the occurrence.

10. Though recovery of a repeater 12 bore was shown to have been effected from the accused/appellant but it remains admitted position that no crime empties were recovered from the place of occurrence and working condition of such gun as reported by the office of Punjab Forensic Science Agency, Punjab after its analysis, even if believed, is inconsequential in the circumstance.

11. Stance of Accused/appellant is more convincing in the light of his detailed statement under section 342, Cr.P.C., yet it needs to be appreciated in the light of principles of evidence including standard to prove his plea of self-defence and medical evidence. It is trite that there are different standards to prove a fact by prosecution and the defence. This expression can further be analyzed in the manner that standard of proof required from the prosecution is proof beyond reasonable doubt, reasonable doubt means, something to which you can assign a reason. 'Beyond reasonable doubt', a formulation has been approved in more than one occasion by the House of Lords.1 and has become a phrase of common usage in the English language. In Miller v. Minister of Pensions [1947] 2 All ER 372 at 373, Denning J elaborated on the name of proof beyond reasonable doubt in these terms:- It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least possible', the case is proved beyond reasonable doubt and nothing short of that will suffice. The standard of proof put legal burden or the evidential burden on the parties to prove the facts. Legal burden refers to party to satisfy the court in respect of a fact in issue. It should be noted that the legal burden in respect of different facts in issue can rest on one or other of the parties within the same case. In criminal cases, it is a fundamental tenet that the prosecution bears the legal burden of proving its case against the accused, although it was only in 1935, in the case of Woolmington v. DPP (1935), that this was definitely established. Reginald Woolmington was sentenced to death for murdering his wife, who has threatened to leave him. He claimed that it was an accident, that he brandished the murder weapon, a gun, in order to frighten her into returning home with him (by causing her to think that he was going to commit suicide), when it accidentally went off. The trial judge summed up as follows:- Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy a jury that what happened was something less, something which might be alleviated, something which might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified. For the trial judge, then, and indeed for the Court of Criminal Appeal, it was up to Reginald Woolmington to prove absence of mens rea; that is, the legal burden lay on him. The House of Lords though held otherwise:- ' .while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence' (per Viscount Sankey LC). Thus, it was for the prosecution to establish the presence of mens rea; that is, the legal burden lay on them.

12. There are certain situations when not the legal burden yet accused is under obligation to discharge the evidential burden. There are certain rules of evidence known as presumptions, which have an effect on the normal incidence of burden of proof. A presumption is a rule of law which provides that if a party proves a certain fact (known as primary fact) then the other fact (presumed fact) will also be taken to be proved unless evidence is adduced by the opponent to 'rebut' the presumptions, or, in other words contradict the presumed fact.

13. It is worth observing initially that there has been an important contrast of approach between English and American writers on the subject. English writers have generally stated with the proposition that there are different kinds of presumptions, which have different effects on the burden of proof.2 American writers have sought (largely in vain) a principle applicable universally to all presumptions, but have found themselves unable to agree on what principle it should be.3

14. According to first theory, generally named after Professor Thayer, a leading exponent, proof of primary fact creates an evidential burden in the opponent with respect to the presumed fact. Therefore, the presumed fact will be taken as proved unless the opponent adduces some evidence to rebut the presumption, though he need not to go so far as disproving it. If the opponent does this, the presumption disappears and the normal burden of proof applies as if the presumption had never existed. This sudden disappearance has led to this theory being known as the 'bursting bubble' theory. Professor Glanville Williams describes presumptions governed by this theory as 'evidential presumption'.

15. According to the second theory, named after Professor Morgan, proof of the primary fact operates to shift the legal burden of proof of the presumed fact to the opponent, who must adduce evidence to disprove it to the applicable standard of proof. Professor Glanville Williams describes presumptions governed by this theory as 'persuasive presumptions. This distinction is almost certainly of significance only in civil cases, since in criminal cases, the accused cannot be made to bear the legal burden of proof except on certain defined issues (which do not include presumptions as such) and never on the ultimate issue of guilt. To the extent, therefore, that the prosecution could use a presumption against the accused, the accused would acquire at the most an evidential burden of proof as to the presumed fact, and an accused can discharge an evidential burden through cross-examination of the witnesses for the prosecution as well as by producing his own witnesses. The standard of proof required of the defence has been defined as "not higher than the burden which rests upon a plaintiff or an accused in civil proceedings and the civil standard of proof is rest on "the balance of probabilities".4

16. In this case accused/appellant has not adduced the evidence nor produced witnesses in his defence, therefore, his plea of taking life of Safdar Iqbal, in the circumstances he portrayed in his statement under section 342 is considered in the light of case reported as Ali Ahmad v. The State (PLD 2020 SC 201) wherein status of statement of accused under section 342, Cr.P.C was declared as under:- Status of a statement under section 342, Cr.P.C.

17. The words "taken into consideration" appearing in section 342(3), Cr.P.C are very wide. The statement of an accused recorded under section 342, Cr.P.C, has no less probative value than any other "matter" which may be taken into consideration against him within the contemplation of the definition of "proved" given in Article 2(4) of the QSO (previously section 3 of the Evidence Act, 1872), which states that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Muhammad Munir, J., in Rahim Bakhsh, regarding statement under section 342, Cr.P.C. wrote: "I know of no law which says that an admission made by an accused person in or out of court unless it is vitiated by any such circumstances as are mentioned in the Indian Evidence Act, cannot be considered to be a matter which the court may take into consideration in coming to its conclusion." The circumstances which can vitiate an admission or confession, referred to by the learned Judge, may be of inducement, threat or promise under which a particular statement is made. A statement under section 342, Cr.P.C. having been made by an accused before court in presence of his counsel has little chance of suffering from such circumstances. However, an admission or confession which is improbable or unbelievable, or is not consistent with the overall facts and circumstances of a case may not have any probative value and thus cannot be relied upon by the court for reaching to a conclusion. The august court further clarifies in supra case that if the accused takes a stance and such stance does not fulfill the requirement of law and his act is not completely covered in legal protection available under the law, he can well be convicted. Following is the expression of august court:- C. Where prosecution has failed and the statement of the accused under section 342, Cr.P.C. is accepted in entirety, the court is then to give due effect to the statement of the accused, under the law, whether in favour of or against the accused.

22. Next comes the question, how such a statement of the accused when "accepted as a fact" and taken in its entirety is to be given effect and acted upon, once the prosecution has failed to make out a case? Once the prosecution evidence is disbelieved, rejected or excluded from consideration, and the facts explained by the accused in his statement under section 342, Cr.P.C. are accepted entirely, the court is then to examine the said facts to give due effect to the statement of the accused, under the law, whether in favour of or against the accused. The object of such examination is to determine whether or not the facts narrated by the accused constitute an offence under the law or fit into any exception of the offence provided under the law. In this respect, the observation of Sir Mukerji J., made in the case of Bhola Nath is quoted to explain the purpose of this examination of the statement of the accused. The learned Judge observed, at page 5: "If on the whole of the statement of the accused, taken together, his guilt is established, and his plea, say, of acting in self-defence or of the case falling within any of the general or special exceptions (sic) is not made out on the facts admitted, there cannot be any bar to a conviction, simply because the prosecution evidence, by itself, would not have secured a conviction " (emphasis supplied) This legal examination was also aptly explained and applied by Lobo C.J. in Gul Mahomed. The learned Judge found that accepting the statement of the appellant as true, the act of the appellant in killing his wife and another was under grave provocation but it was not under sudden provocation. The facts narrated by the appellant though were accepted but those were found not to fit in the legal parameters of Exception-I to section 300, P.P.C. for making the case of the appellant as one of grave and sudden provocation. Likewise, this Court, in Muhammad Azam, though admitted the statement under section 342, Cr.P.C. as a whole, but found, even in those admitted facts, the accused to have exceeded in his right of self-defence and convicted him accordingly. In Sattar referred above the accused while explaining the circumstances in which he inflicted injuries to him, claimed to have acted in the exercise of right of self-defence. But the High Court though accepted his statement of facts in its entirety, but convicted him under section 304-I, P.P.C. by treating his version not to fit in the legal requirement of the valid exercise of right of self-defence as the accused as per his own version of facts had chased the deceased in street who was attempting to escape from the place of occurrence. [Emphasis supplied] Act of accused claiming right of self-defence is tracked in the light of medical evidence. Medical evidence through PW-1 mentions the injuries on left and right thigh, yet injury No. 1-A on left thigh shows size of 6 x 5 cm and Injury No. 2-A on right thigh also carries similar size of 6 x 5 cm with additional feature of having black margins indicate that fires were made from a very close range whereas prosecution alleged inter se distance in the site plan as 10-feet. Admission of accused of making first fire to save his life may be from a very close range on the right thigh, yet his next stance that two more fires on left thigh in the same go and in the same position of parties is beyond comprehension when the size of injuries is the same. This is an indication that Riaz appellant has exceeded the right of self-defence and did not use proportionate force to deter the attack particularly when none of his attacker were carrying firearm weapons, one was holding him by arms, Zulfiqar and deceased were there to launch attack upon him with sota and hatchet; but appellant did not target said Zulfiqar, therefore, he cannot seek acquittal on the ground of exercising right of private defence within the parameters of law.

17. For what has been discussed above, authorized under section 423, Cr.P.C. the finding of learned trial court is altered while conviction and sentence imposed upon Muhammad Riaz (the accused appellant) is maintained; consequently, appeal filed by him is dismissed.

18. For the same reasons, I have not seen any reason to enhance the sentence which in the facts and circumstances of the case fully commensurate with the role played by the accused/appellant as well as the standard of evidence available on the record. Criminal Revision No.424/2017 filed by the complainant seeking enhancement of sentence, therefore, is dismissed.

19. Similarly, PSLA brought by the complainant against the acquittal of Imtiaz Ahmad, Muhammad Nawaz, Ghulam Sarwar and Naeem Umar is dismissed. JK/M-12/L Appeal dismissed.