2000 PLP 20 (MLD)

Motives was stated to be that Muhammad Aslam had abducted Mst. Safia appellant's sister and had married her against the wishes of the accused party. As a sequal to the said grievance the offence was committed.

3. The prosecution examined eight witnesses in support of its case. Dr. Muhammad Ramzan P. W .1 conducted. ‑ the post‑mortem examination of Muhammad Aslam deceased and noted eighteen incised wounds and one stab wound on the person of the deceased. Injuries Nos. 15 and 16 were sufficient to cause death in ordinary course of nature. All the injuries were anti‑mortern and had‑been caused with sharp‑edged weapon.

4. P.W 6 Muhammad Anwar complainant and P.W.7 Muhammad Afzal furnished the eye‑witnesses account of the occurrence. Muhammad Afzal also attested the recovery of blood‑stained Churra P.8 at the instance of Muhammad Amjad appellant which was secured vide memo. Exh.P.F. and also gun P.9 with five cartridges P.10/1‑5 and licence P.11 vide memo. Exh. P.G. P.W.6 also deposed about the motive for the occurrence. The remaining witnesses. i.e. P.W.2 to P.W.5 are all formal in nature. P.W.8 Shafqat Ullah is the Investigating Officer. He conducted the investigation, on 24‑9‑1993 he arrested Muhammad Amjad appellant. He completed the. investigation fulfilling the necessary formalities. On conclusion of the investigation, the appellant Muhammad Amjad alongwith the brother Muhammad Ilyas and father Muhammad Nazir was sent up to face trial in the Court of Ch. Muhammad Nawaz, learned Additional Sessions Judge‑1, Bhakkar. The learned trial Judge as noted above convicted the appellant under section 302, P.P.C. and sentenced him to death. However, his co‑accused i.e. Muhammad Ilyas and Muhammad Nazir were acquitted of the charges against them.

5. The appellant was examined under section 342, Cr.P.C. He denied the allegation against him and in answer to question No.6 as to why this case against him, made the following reply:‑‑ "My two sisters have been studying in the school where the occurrence took place. On the day of occurrence, at about 12.00 Noon, I went there to inquire about the educational progress of my two sisters, when I reached there, I found the deceased sitting alongwith school teachers and they both were eating citrus. Deceased was holding churee P.8 in his hand and was., peeling citrus with it. I asked the teacher as to why he was allowed the deceased to sit there in the school, as he was a bad character. Whereupon, deceased started abusing me and said that he had abducted your sister and was keeping her with him, what I had done to him so far. I retorted, deceased rose up with churree and abused me and after exposing his male organs stated that he would teach him a lesson just now and attacked with the churree P.8. I caught hold up the churree with my left hand and save myself, as a result, my left finger got injured. Deceased then felled me on the ground and started strangulating me. I succeeded in snatching churree and apprehending danger to my life I started giving him blows while I was under him. After incapacitated him, I threw the churree at the spot and proceeded for the police station, Shafqat Ullah S.I., was present at the Police Station. I narrated all the incident to him, he did not record my statement, he took me in custody and confined me in the Hawalat and then proceeded to the spot. In connivance with he complainant party he cooked up a false story and got me, my brother and my father involved in this case. I am alone responsible for this occurrence. Complainant party. is very influential as the whole inhabitants of the ehak belong to Arain caste. Ours is only family residing in the chak. P.Ws. did. not see the. occurrence. They have falsely deposed against me on account of previous enmity."

6. The learned trial Judge after discussing the prosecution evidence which comprise evidence of motive, ocular account, medical evidence and recoveries, observed in para. No. 12 of the judgment that:‑‑, "In view of the position regarding the presence of ocular witnesses during the occurrence it has been found false as in my finding under the head of evidence of ocular witnesses. Since both the eye‑witnesses were not found present during the occurrence, therefore, the case of involvement of Muhammad Ilyas and Muhammad Nazir accused is highly doubtful. " After recording this observation both Muhammad Ilyas and Muhammad Nazir were acquitted. However, as regards Muhammad Amjad after observing that he sinks and sails with his co‑accused Muhammad Ilyas and Muhammad Nazir found that he had confessed the murder of Muhammad Aslam as per statement referred above, therefore, his case stood at different footings. The learned trial Judge was of the view that since Muhammad Amjad had admitted in his statement killing of Muhammad Aslam and eitplained the circumstances which led to his murder, therefore, it was incumbent for him to have led evidence to prove the existence of those circumstances. As the appellant failed to discharge the onus placed on him, he proceeded to convict him under section 302, P.P.C. and sentenced him to death.

7. The view taken by the learned trial Judge that the onus lay on the appellant to prove the circumstance that he committed the murder as a result of provocation and also to defend his life, does not appear to be tenable. The onus of proof invariably lies on the prosecution, however, in case a specific defence is put forward the accused person has to establish that his plea‑is reasonably true and the possibility cannot be ruled out that he was compelled to act due to the circumstances urged in his statement. The burden on an accused person cannot be equated with the burden of proof which lies on the prosecution to prove its case. The prosecution in order to bring home the guilt of the accused person has to prove its case beyond doubt and any doubt emerging from the prosecution case, the benefit will accrue to the accused person. On the contrary, if a specific plea of self‑defence, grave and sudden provocation or sudden flare‑up etc., is taken up then an accused is not burdened to prove the same beyond doubt. It is sufficient that the plea raised by an accused if could be reasonably true the benefit has to be extended to him. It is not necessary that specific evidence may be produced in support of the defence plea or the witnesses must necessarily be examined to establish the defence version. Even if the defence plea is spelt out of the prosecution version or there are circumstances from which it can reasonably be deduced or inferred that the fact narrated by the accused could possibly have accrued, the accused person is entitled to derive the benefit and the conclusion has to be arrived accordingly.

8. Coming to the facts and circumstances of the instant case, it is admitted by the prosecution itself that the deceased had abducted the sister of the appellant and had married her against the will of the accused party. The deceased continued living with her as her husband and criminal litigation in between the parties remained pending. Such an incident in our society and culture is always taken to be extremely insulting and disgraceful. We cannot remain oblivious of the fact that the appellant did carry his grievance with him which is also manifested from the fact that a number of injuries caused to the person of the deceased were result of the venom and contempt appellant bore in his mind.

9. The fact that injury on the small finger of the deceased is indicative of the fact that some grappling or scuffle must have preceded the occurrence. It has also come on record that two younger sisters of the appellant were studying in school near which the alleged occurrence took place. The defence plea taken by the appellant cannot, therefore, be treated as without any basis or an after thought. It is admitted by the Investigating Officer that first version taken before him during the investigation by the appellant was the same as taken during the trial. The argument raised by the learned counsel for the defence that the defence version should be accepted in toto and he be acquitted of the charge against him cannot be acceded for the reason that even if there was some grappling in .between the two or the deceased had made a provocative remark or had made an obscene exposure he should not have retaliated in the manner as he did by inflicting successive belows to the deceased.

10. We after having considered all the relevant facts and circumstances of the case are of the considered view that section 302(c), P.P.C. would be attracted to the offence committed by the appellant. We accordingly set aside the conviction of the appellant under section 302, P.P.C. and convict him under section 302(c), P.P.C. and sentence him to undergo R.I. for ten years. The amount of compensation of Rs.10,000 to be paid by the appellant to the heirs of the deceased is upheld and maintained, in default thereof to undergo five months S.I. Benefit as provided by section 382‑B, Cr.P.C. will be extended.

11. For the reasons recorded above the Criminal Revision also fails and is dismissed. Q.M.H./M.A.K./M‑1205/L Order accordingly.