2012 PLP 1195 (SCMR)

IJAZ AHMED CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment dated 17-6-2010 passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby judgment dated 30-10-2004 passed by the learned Additional Sessions Judge, Dera Ghazi Khan, through which petitioner has been convicted under section 302(b), P.P.C. and sentenced to death with compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased and in default to suffer six months' S.I., has been maintained. Appeal filed by the petitioner has been dismissed and the Murder Reference sent by the learned trial Court has been answered in the affirmative.

2. Brief facts of the case are that on the basis of a complaint (Exh.PG) filed by Muhammad Sharif (P.W.7) F.I.R. No.47 of 2003 was registered with Police Station Civil Lines, District Dera Ghazi Khan, on 8-3-2003 under sections 302, 324, 109, P.P.C. According to the complainant on 8-3-2003 early in the morning he along with Khalil Ahmad, Muhammad Esa, (sons of complainant) and Fida Hussain son of Nazar Hussain caste Sehani resident of Bait Shadan, Mauza Chak Danda, District D.G. Khan, came to the court of Mian Bashir Ahmad Bhatti, Additional Sessions Judge, D.G. Khan to attend the Peshi of his son Muhammad Saleem who was an accused in a murder case. At about 8-15 a.m. the complainant attended the Peshi of his son. Outside the Court, their opponent party Ghulam Abbas and Juma were also present. After attending the Peshi, the complainant along with his sons Khalil Ahmad, Muhammad Esa and Fida Hussain son of Nazar Hussain, went to the Chamber of their Advocate Sh. Abdul Samad for giving him some papers. After attending the chamber of their Advocate, the complainant went to see his son Muhammad Saleem, who was under police custody, for the purpose of handing over some edible articles in the Sessions Court premises. Muhammad Esa was walking a few paces ahead of the complainant, whereas, the complainant along with Khalil Ahmad and Fida Hussain were behind him at some distance. At about 10-45 a.m., when they came at the main gate of the Sessions Court premises, Ghulam Abbas, petitioner, who was armed with pistol .30 bore rushed towards Muhammad Esa and made lalkara that today he would not go alive and he had come for the revenge of his brother Muhammad Ramzan. Thereafter, the petitioner Ghulam Abbas fired 5/6 shots at Esa with his pistol .30 bore which hit him on his back side, one fire shot hit on the left and the right elbow of Ghulam Qasim, Naib Qasid of Mian Bashir Ahmad Bhatti, Additional Sessions Judge. Muhammad Esa after receiving fire shots fell down and succumbed to the injuries at the spot. On hearing fire shots many people present in the Sessions Court gathered there. Ghulam Abbas, petitioner, tried to flee away from the place of occurrence but he was chased and over-powered along with .30 bore pistol by the police officials at some distance.

3. Motive behind the occurrence, as stated by the complainant Muhammad Rizwan (P.W.11) was that about 11/2 years back, his son Muhammad Saleem had murdered Muhammad Ramzan, who was real brother of petitioner Ghulam Abbas and Juma, acquitted accused. For taking the revenge, petitioner Ghulam Abbas had murdered Muhammad Esa on the instigation and conspiracy with his co-accused Juma Khan.

4. After completion of usual investigation, challan was submitted against the petitioner and his co-accused Juma Khan. Charge was framed to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 13 witnesses in all. After recording of evidence and hearing learned counsel for the parties, learned Additional Sessions Judge, D.G. Khan acquitted the co-accused Juma Khan and convicted and sentenced the petitioner Ghulam Abbas as noted hereinabove.

5. Learned counsel for the petitioner at the very outset contended that the petitioner has taken a specific plea that due to grave and sudden provocation the petitioner had committed murder of deceased, therefore, it is a case of lesser punishment. He also contended that the presence of pistol is a routine matter for the people of D.G. Khan.

6. We have heard learned counsel for the petitioner, perused the impugned judgments and have also gone through the entire evidence on record.

7. In the instant case time, place of incident and firing at the deceased by the petitioner have been admitted by both the parties. Both the courts below have taken into consideration the presence of both the eye-witnesses Muhammad Sharif (P.W.7), who is father of the deceased and Fida Hussain (P.W.8), who is also, closely related to the deceased and the complainant inter se and their statements have been found reliable by both the courts below. Both of them have made consistent statements regarding the incident and making of firing by the petitioner at the deceased Muhammad Esa in the court premises. It has been held by both the courts below that the presence of both the eye-witnesses at the spot is quite natural and is established beyond shadow of doubt as on the day of instant incident a murder case of Muhammad Ramzan, was fixed for hearing before the learned Additional Sessions Judge, D.G. Khan in which Muhammad Saleem son of the complainant Muhammad Sharif (P.W.7) was facing trial as a main accused while Fida Hussain (P.W.8) was also accused for hatching conspiracy in that murder case. Even otherwise, petitioner duly armed with pistol, was arrested at the spot, F.I.R. was recorded immediately after the occurrence and the postmortem was also conducted without inordinate delay, which also supports the prosecution story. In such circumstances, we hold that the concurrent findings arrived at by both the courts below are fully supported by the evidence on record; hence, we do not find any illegality or improbability in the impugned judgments.

8. Now turning to the contention raised by the learned counsel for the petitioner that the petitioner had acted in the right of his self defence as he had stated before the trial Court that the deceased Muhammad Esa had abused him that he would fuck his (petitioner's) sister due to which he lost his senses and under sudden and grave provocation he fired at the deceased, therefore, deserves leniency, we have perused the statement of the petitioner under section 342, Cr.P.C. in which in an answer to question No.2 he had stated as under:-- "Although Muhammad Esa was murdered by me but in fact on the way, near outer gate of Sessions Court, Esa deceased abused me and said that now he had come to D.G. Khan after his retirement and now he would fuck my sister as I have murdered many persons of his family. After hearing such abuse from the mouth of Esa deceased, I lost my senses and flared up and in sudden and grave provocation I made fire at the person of deceased who had gone 1/2 steps ahead to me." It is settled law that mere verbal abuses or threats are never to be accepted as sufficient for accepting a plea of grave and sudden provocation. Even otherwise, if it is assumed that the deceased had abused the petitioner then he should have immediately fired at the deceased out of grave and sudden provocation on his front but according to the ocular as well as medical evidence all the injuries sustained on the person of deceased were on the back side of his chest. It is also not the case of the petitioner that after abusing him deceased started running and thereafter he fired at him. In such circumstances, we are of the view that the statement of the petitioner regarding grave and sudden provocation was afterthought as it was not the stance of the petitioner at the time of his arrest by P.W.11 Muhammad Rizwan, S.I. Even otherwise, his plea of sudden and grave provocation is not borne out from the record. He neither appeared as his own witness under section 340(2), Cr.P.C. to prove his plea nor produced any witness in support of his plea. The petitioner was captured by two police constables Muhammad Aslam (P.W.5) and Muhammad Isa (P.W.12), who were present at the spot but despite opportunity they were not cross-examined on this point as well. Admittedly the petitioner had brought the unlicensed pistol with him and had fired 5/6 shots at the deceased hitting on his back side of chest in the court premises, as such it has been rightly held by the courts below that the petitioner had come prepared at the place of incident to commit the murder of Muhammad Esa who was a Government employee at Turbat, Balochistan and after his retirement had returned home few days prior to the occurrence.

9. It is cardinal principle of Criminal Law that onus of proving the general issue i.e. everything essential to the establishment of the charge against the accused rests upon the prosecution and the same never shifts. The burden of proving any of the Exceptions, of course, lies on the accused. Question of grave and sudden provocation is an exception and the burden of proving the existence of circumstances bringing the case within the exception lies upon the accused. In that eventuality, the said defence plea has to be taken into account in toto and not in piecemeal while deciding the case. Even if, there is any doubt in the prosecution case, benefit of the same will go to the accused and not the prosecution. In the cases involving death penalty, the law has conferred a discretion upon the Courts to withhold the penalty of death and to award punishment of imprisonment for life if particular fact requires that course. What could be those facts and circumstances under which penalty of death must be imposed and lesser penalty of life imprisonment should not be awarded. Those are manners and method of incident, which are clearly suggestive of the fact that deceased was done to death in a brutal manner. The courts have also to see the heinousness of the act committed by the accused. In such a situation, the courts have to proceed very carefully and cautiously while exercising such a discretion and not ignoring the circumstances and cause of occurrence In the instant case, the cause of occurrence is very much apparent from the F.I.R. that accused committed the murder of deceased to take revenge of murder of his brother committed by the brother of the deceased in the instant case. Although the accused has raised plea of grave and sudden provocation which provoked him to take away the life of the deceased, yet, he has failed to prove said plea adducing any inspiring confidence evidence. His simplicitor plea of grave and sudden provocation cannot brush aside the entire prosecution evidence, which has already been declared by the two courts below to be inspiring confidence and trustworthy as well as by us in the preceding paragraphs. Even otherwise, it is worthwhile to note that accused had come prepared for the commission of offence while arming himself with the crime weapon and if as per plea of the accused, the occurrence would have taken place suddenly in the ordinary manner he would not have come prepared while arming himself with pistol to the premises of District Courts D.C. Khan wherein the case relating to the murder of his brother was fixed for hearing on that very day. In this view of the matter, the plea of accused has no force and cannot be considered for giving him benefit in the sentence because as is apparent from the facts and circumstances of the case he acted in a brutal manner while firing shots on the deceased with his pistol and was apprehended at the spot with the weapon of offence. In the circumstances this plea has rightly been rejected by both the courts below for valid reasons and we are also satisfied that the said plea is not sufficient to create sudden and grave provocation for the murder of deceased and for reduction in sentence. 9(sic). We find that both the courts below have not committed any illegality or irregularity while recording conviction of the petitioner under section 302(b), P.P.C. and sentencing him to death. This petition is, therefore, dismissed and leave is refused. M.W.A./G-12/SC Petition dismissed.