2001 SCMR 51 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Instant appeal arises out of leave granting order, dated 25th February, 1999 to examine the 'following questions:-- (i) Where the petitioner in the circumstances of the case had exercised the right of self-defence, therefore, extreme penalty of death was not called for; and (ii) whether the High Court has appraised the evidence in conformity with the well-established principles relating to appreciation of evidence as laid down by the superior Courts td ensure safe administration of justice in criminal cases.

2. Succinctly stating relevant facts for disposal of the case are that appellant Muhammad Anwar son of Jilah (57) and his two sons namely Tauqir alias Guddu and Tanvir alias Tipu were arrayed as accused before Additional Sessions Judge, Kasur to answer charge of the murder of Master Ali Muhammad vide F.I.R. Exh.P.E., dated 7th February, 1990 registered at Police Station Pattoki, District Kasur lodged by P.W. Manzoor Ahmad 2-A. Learned trial Court recorded prosecution evidence because appellant and co-accused did not plead guilty to the charge and claimed to be tried. It may be noted that appellant admitted murder of Master Ali Muhammad but by way of exercising his right of self-defence to protect himself as well as his property from the attack launched by the deceased and his companions in his statement under section 342, Cr.P.C.

3. Learned trial Court vide judgment, dated January 30, 1992 convicted/sentenced the appellant to death under section 302, P.P.C. However, co-accused who happened to be his real sons were acquitted of the charge disbelieving ocular count of P.W. Manzoor Ahmad and Muhammad Hanif to their extent.

4. Learned Lahore High Court confirmed sentence of death by answering Murder Reference No.71 of 1992 in affirmative and as a consequence whereof Criminal Appeal No. 199 of 1992 filed by appellant was dismissed.

5. Mr. Raja M. Anwar, learned Senior Advocate Supreme Court contended that the trial Court while assessing the prosecution evidence disbelieved the ocular count of P.W. Manzoor Ahmad and Muhammad Hanif qua acquitted accused i.e. Tauqir and Tanvir sons of Muhammad Anwar convict. However, corroboration to their statements for deciding the case against appellant was sought from the recovery of incriminating revolver .32 bore and empties recovered from the place of incident but learned High Court disbelieved the recovery of crime weapon for the reason that no explanation has been offered by the prosecution to keep in its possession 4 crime empties (recovered from the place of incident on 7th February, 1990) (Exh.P.G.) and (crime weapon recovered on 10th February, 1990) for period of 4 days and learned High Court placed reliance on the statement of eye witnesses without seeking corroboration from any other evidence, therefore, their statements were not worthy of acceptance. As such, according to him as prosecution possesses no incriminating evidence, except statement of the appellant under section 342, Cr.P.C. thus, the statement of convict was bound to be accepted in totality in view of law laid down by this Court in PLD 1991 SC

520. In continuation of his submission he stated that under the circumstances on accepting the plea of self-defence of the appellant he is liable to be acquitted of the charge at the first instance or in alternative he may be awarded lesser sentence.

6. On the other hand Ch. Muhammad Akram, learned counsel appearing for Advocate-General, Punjab frankly stated that the material available on record does not warrant awarding of death sentence to appellant and he pleaded no objection for granting lesser punishment to him.

7. We have heard learned counsel for parties at length and have gone through material available on record. As per facts and circumstances of the case it seems that from the very beginning appellant had pleaded that crime was committed by him in exercise of his private right of self-defence on the plea that "Master Ali Muhammad in the company of his fellow brotherhood, armed with lethal weapons came to take possession of the wood which was lying in the trolley forcibly and when he resisted they wanted to attack him and wanted to forcibly enter into his house. In order to defend himself from their mincing advance he fired at them. He did this in his self-defence as well as in defence of his property". In this behalf reference to the observations of learned trial Court is also necessary to determine ad to whether plea of self-defence was taken abruptly during the trial by the appellant by making a statement under section 342, Cr.P.C. or from the stage of investigation he had been raising this plea. Learned trial Court in its judgment noticed that during the course of investigation he made a similar statement before the 1.0. Doctor Shafique, A.S.P. and Abdul Samad, D.S.P. They accepted his defence. He has further stated that A.S.P. even recorded the statement of one of the eye-witnesses Naz Ahmad who was then confined in the District Jail, Kasur, who also exonerating his sons, made a statement that they were not present there and that complainant party was the aggressor. Lastly he has stated that shots so fired by him hit Ali Muhammad deceased as he was leading the attacking party and trying to enter into the house. Learned High Court while examining the case of prosecution qua the plea of accused of self-defence observed "This is special plea which has been taken up by the appellant and burden to prove it also lies on the appellant. Unfortunately, not an iota of evidence worth the name has been brought on the record to substantiate it. If at all this version has some semblance of truth then the complainant side would not have gone empty-handed towards the house of the appellant. It is surprising to note that no arm of any type was recovered or was found at the spot during the investigation, therefore, it is not possible to believe that the complainant side had any design to attack the accused side. It was a daytime occurrence. Had this version been true, the defence would have taken all possible measures to highlight this aspect of the case during the investigation. The circumstances of the case are silent on this aspect. Furthermore, if at all it was case of self-defence what to speak of injury, not a scratch was received by the accused side. In the absence of any such injury or scratch on any of the persons comprising the accused side, the recovery of the theory of self-defence falls to the ground and stands demolished.

8. In our opinion learned Judges of Lahore High Court did not consult the judgment of the trial Court wherein it has been clearly observed that appellant did raise the plea of his self-defence during investigation. Relevant para. therefrom has already been referred to hereinabove. We also could not persuade ourselves to agree with the argument that if an accused has taken the plea of self-defence burden shifts upon him to prove the same because settled law as discussed in the case of Zarid Khan v. Gulsher and another (1972 SCMR 597) is as under:

"...It cannot tie said that because under section 105 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 such a doubt. The decision has to be taken on the entire evidence and not on the special pleading." In another case of Ashiq Hussain v. The State (1993 SCMR 417) it was held that prosecution is duty bound to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Relevant para. therefrom is reproduced herein below:-- "

24. It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken, Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited. It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false. In support of the proposition, reference can be made to the case of Ali Sher v. State reported in PLD 1980 SC

317. In the impugned judgment against the above proposition, reliance is placed on the case of Khalid Javid v. State 1984 PCr.LJ. 100 which is distinguishable as facts in that case are different. We are of the view that in the instant case prosecution has failed in its initial duty to prove the case against the appellant beyond doubt and if defence has failed to substantiate the plea of alibi, it does not improve the case of prosecution " Similarly this Court in the case of Zaheeruddin v. The State (1993 SCMR 1628) has held that if accused failed to prove plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond all reasonable doubt nor it could be taken into consideration as a proof in support of the prosecution case,

9. Undoubtedly in the instant case as per judgment of trial Court ocular testimony of Manzoor Ahmad and Muhammad Hanif has been disbelieved against acquitted accused Tauqir alias Guddu and Tanvir alias Tipu but the learned trial Court believed their statement qua appellant Muhammad Anwar seeking corroboration to their statements from recovery of crime empties and the crime weapon but learned High Court in appeal had disbelieved the supporting evidence i.e. incriminating empties and revolver,' therefore, prosecution is left in possession of the ocular statement of both the eye witnesses which cannot be believed for the sake of safe administration of justice unless there is some corroboration. Thus, under these circumstances having been left with no option we are bound to accept the plea of accused made by him in his statement under section 342, Cr.P.C. in totality as it has been held in the case of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) and The State v. Muhammad Hanif and 5 others (1992 SCMR 2047).

10. Now the question is that what should be the proportionate sentence qua the plea of the defence keeping in view the circumstances of this case because admittedly there is no material available on record to measure the apprehension of appellant of danger to his persons as -well as property which persuaded him to fire upon deceased Master Ali Muhammad. We are of the opinion that by raising a plausible defence plea appellant who though himself had not received even a single injury on his body nor any weapon has been recovered from near the dead body or from the possession, of the companions of the deceased the convict has created a strong mitigating circumstance in his favour on account of which he is not entitled for the normal penalty of death but life imprisonment which in our opinion would be sufficient to meet the ends of justice in the circumstances of the case. Thus, for the foregoing reasons appeal is dismissed and conviction under section 302, P.P.C. is maintained but sentence of death is converted into imprisonment for life with fine of Rs.10,000, half of which if recovered shall be paid to the legal heirs of deceased and in the absence of the payment of fine appellant will further undergo three months' R.I. However, he will also be entitled for the benefit of the period during which he remained in jail as undertrial prisoner in terms of section 382-B, Cr.P.C. Q.M.H./M.A.K./M-104/S Order accordingly.