2022 P Cr.

L J 591
[Lahore (Bahawalpur Bench)]
Before Muhammad Amjad Rafiq, J
MUHAMMAD AKHTAR and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeal No. 167 and Criminal Revision No. 113 of 2011, heard on 8th
September, 2021.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---
Delay of one hour in lodging the FIR---Scope---Accused were charged for
committing murder of the brother of the complainant---Motive for the occurrence
was of mischievous act of accused who had taken snaps of wife of deceased,
whereupon, deceased had quarrelled with him, which resulted into the occurrence--
-Occurrence took place at 08:30 a.m. and the FIR was lodged at 09:30 a.m. on the
same day---Police station was at the distance of 06-k.m. from the place of
occurrence as alleged by the prosecution---For all intent and purposes it was a
prompt FIR---Circumstances established that the prosecution had proved its case---
Appeal against conviction was dismissed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---
Recovery of crime empties and weapon of offence---Reliance---Scope---Accused
were charged for committing murder of the brother of the complainant---Two crime
empties were recovered from the place of occurrence on 18.03.2010---Accused was
arrested on 25.03.2010---Empties were sent to Forensic Science Agency, on
01.04.2010---Pistol was recovered on 07.04.2010 and the same was sent to Forensic
Science Agency on 19.04.2010---Matching report of said crime empties with the
pistol recovered from the accused was received---Empties having been sent after
the arrest of the accused, therefore, no inference could be drawn with respect to
effect of matching report on the culpability of accused---Recovery did not favour
the prosecution---Trial Court had already taken lenient view while awarding
sentence to the accused, hence appeal against conviction was dismissed.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---
Motive was proved---Scope---Accused were charged for committing murder of the
brother of the complainant---Motive had been attributed in the case as taking of
snaps of wife of deceased and due to such indecent act, the occurrence took place---
No evidence was brought on record with respect to proof of motive in the case
except a suggestion during cross-examination---Neither wife of deceased appeared
during the investigation nor before the Court, even mobile phone through which
such snaps were taken had not been taken into possession nor was produced during
the trial---Accused while answering to a question put to him during his statement
under S. 342, Cr.P.C. in a manner admitted the differences between the parties and
the reason was almost the same which had formed the motive part, as alleged by the
prosecution---Prosecution case got support of motive as well---Circumstances
established that the prosecution had proved its case---Appeal against conviction
was dismissed accordingly.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Plea
of self-defence---Scope---Accused were charged for committing murder of the
brother of the complainant---Accused had admitted the occurrence but had come up
with a defence version---One witness was also produced in evidence in his defence-
--Defence version could not be established in any manner for the reason that it had
nowhere come in the evidence that complainant party carried any sort of weapon
with them when purportedly they launched attack on the accused party---Said being
the position, there was no justification at all for the accused to have exercised the
right of self-defence---Scrutiny of the medical evidence had proved that both the
shots were fired by accused alone---Had accused fired in exercise of self-defence,
he could only use the force which was sufficient to ward off the attack, but in the
present case, since the complainant party had no weapon with them, therefore,
repeated fire shots by him by no means advanced his plea of self-defence nor the
medical evidence supported that pistol went off and fire accidentally hit the
deceased, in that case it must have only one fire---Accused, in order to prove his
plea, did not enter on to his defence while appearing as his own witness under S.
340(2), Cr.P.C., nor filed written statement as required under S. 265-F, Cr.P.C.,
therefore, calling of defence witness directly somewhat raised question about
legality of such evidence---Having failed to establish the plea of self-defence, there
was no other view except to hold that in fact it was accused who had made repeated
fire shots on deceased and that fact stand fully established through the prosecution
evidence---Accused had not brought on record his stance and defence witness in the
process through formal ways---Plea of accused could not be substantiated during
the trial which disentitled him to claim acquittal---Circumstances established that
the prosecution had proved its case---Appeal against conviction was dismissed
accordingly.
Mst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 787 rel.
(e) Criminal trial---
----Burden of proof---Scope---Prosecution was bound to prove the guilt against the
accused beyond reasonable doubt---Accused was not obliged to discharge the
burden of proof---Any admission or plea raised by accused would have no value
and could not be used against the accused.
Ali Ahmad and another v. The State and others PLD 2020 SC 201 and The State
through P.G. Sindh and others v. Ahmed Umer Sheikh and others 2021 SCMR 873
rel.
 Mirza Muhammad Azam for Appellant along with Appellant (Present on bail).
Malik Muhammad Latif, Additional Prosecutor General for the State.
Syed Zeeshan Haider for the Complainant.
Date of hearing: 8th September, 2021.
JUDGMENT
MUHAMMAD AMJAD RAFIQ, J.---Prosecution for the murder of Khadim
Hussain was launched against Muhammad Akhtar alias Muhammad Akram,
Muhammad Anser along with Shafqat and Saif-ul-Malook, through case FIR
No.45/2010 dated 18.03.2010 registered under sections 302/34, P.P.C. at Police
Station Ghumandpur, District Bahawalnagar. The learned trial court, vide judgment
dated 28.03.2011, acquitted Shafqat and Saif-ul-Malook accused from the charge,
whereas, Muhammad Akhtar and Muhammad Anser (hereinafter to be referred as
accused/appellants), were convicted and sentenced as under;
Imprisonment for life under section 302(b) read with section 34, P.P.C. with
compensation of Rs.100,000/- each under section 544-A, Cr.P.C. to be paid
to legal heirs of deceased, in case of default to further undergo simple
imprisonment for six months each. Benefit of section 382-B, Cr.P.C. was
extended.
Criminal Appeal No.167/2011 has been brought by accused/appellants to question
their above conviction and sentence, whereas Criminal Revision No.113/2011 has
been filed by Allah Yar (complainant) seeking enhancement of sentence qua both
the above accused/appellants. Both these matters are now under consideration
before this Court as subject of instant judgment.

2. Allah Yar complainant (PW.6) led the story of prosecution narrated in

complaint (Ex.PC), reproduced in formal FIR (Ex.PC/1) that it was the morning of
18th March, 2010 when at 08.30 am, he along with his brother Khadim Hussain
(deceased) was irrigating the fields, Muhammad Akhtar alias Muhammad Akram
and Anser (accused/ appellants) armed with .30-bore pistols and Shafqat carrying a
knife came there. Shafqat raised lalkara to teach them a lesson for yesterday's
quarrel, upon which Muhammad Akhtar alias Muhammad Akram fired with his
pistol which hit between the neck and chest of Khadim Hussain (deceased). The
fire shot by Anser landed on the chest of Khadim Hussain below left clavicle, who
fell down; whereupon, Shafqat attempted knife blow which was stopped by
complainant by his right hand. Meanwhile, Saifal alias Babli, brother of
Muhammad Akhtar alias Muhammad Akram (accused), came on a motorcycle,
boarded them all and decamped from the place of crime. The occurrence was
witnessed by Mukhtar Ahmad and Nasarullah, who being guests were present there.
Khadim Hussain was being shifted to Hospital in a dala (‫) ڈاال‬, when he succumbed
to the injuries.

The motive for the occurrence was of mischievous act of Anser accused who on
16.03.2010 had taken snaps of Mst. Shamim, wife of Khadim Hussain deceased,
whereupon, Khadim Hussain had quarreled with him. Second altercation in the
sequence on 17.03.2010 took place between Khadim and Muhammad Akhtar alias
Muhammad Akram which finally resulted into present occurrence on 18.03.2010.

3. Leaving the dead body of Khadim Hussain in the hospital under the guard of
witnesses, complainant moved the complaint at the police station, on the basis of
which Muhammad Shabbir Sub-Inspector/ Investigating Officer (PW-9) drafted
formal FIR and proceeded to the hospital and carried out investigation, the details
whereof are available in his statement recorded before the court, therefore, need not
be reproduced here. Suffice to say that after completion of all requisite formalities,
report under section 173, Cr.P.C. was submitted in the Court.

4. The accused persons were charge sheeted, to which they pleaded not guilty
and claimed to be tried. During trial the prosecution examined its witnesses in
sequence and produce documents as under:-
"complainant Allah Yar (PW-6) and Mukhtar Ahmad (PW-7) deposed about the
ocular account; Dr. Husnain, Medical Officer (PW-3) who had conducted
post mortem examination of Khadim Hussain deceased and Muhammad
Shabbir Sub-Inspector (PW-09) who had conducted investigation in this
case. Rest of the witnesses being formal in nature made depositions about
their respective functions performed during the course of investigation.
After oral evidence the learned Rao Muhammad Riaz Khan, Deputy District
Public Prosecutor tendered in documentary evidence the report of Chemical
Examiner Ex.PJ and reports of Serologist as Ex.PK and Ex.PL and with that
closed the prosecution evidence".
The accused when examined under section 342, Cr.P.C. denied the prosecution
evidence and produced one Munawar Ali as DW-1 in their defence, however,
neither of them appeared as his own witness. In answer to a question "Have you
anything else to say", Muhammad Akhtar alias Muhammad Akram
accused/appellant made the following reply:-
"I am innocent. In fact due to some understanding Khadim Hussain deceased as
well as his brother Allah Yar complainant levelled the allegation against my
co-accused Muhammad Anser my brother that he has taken the snaps of Mst.
Shamim Bibi wife of Khadim Hussain deceased on his cell phone about 3/4
days prior to this occurrence. I and my brother Anser tried to satisfy them by
all possible means that Anser had not taken any such snaps of wife of
Khadim Hussain but in spite of that they bore grudge and Khadim Hussain
deceased had an altercation and scuffle with me a day before the occurrence
and gave him beatings, whereupon Khadim Hussain threatened me of dire
consequences. On the day of occurrence there was Qull Khawani of Mst.
Mumtaz Begum daughter of Falak Sher resident of Bheni Abdur Rehman
Kharl and I along with Muhammad Iqbal, Muhammad Munawar and Sarfran
attended the above said persons and when we reached near the house of
complainant party at a distance of about one acre, all of a sudden Khadim
Hussain deceased and his brother Allah Yar Complainant who were hiding
themselves in the wheat crop of Munir Wattoo near their house, came in
front of me and launched an attack upon me. Both of them started giving me
 beating. In support of their other relatives also attracted at the place of
occurrence. I apprehending danger to my life at the hands of the
complainant party, I took out my licensed pistol which I was having as a
precaution because the complainant had already extended threats to me but
in spite of that Khadim Hussain deceased caught hold of me and tried to
snatch the pistol and during this grappling/scuffle my pistol which was
semi-automatic was went off accidentally, as a result of which Khadim
Hussain was injured. In fact, it was complainant party who was aggressor.
My companion Muhammad Munawar, Sarfraz and Iqbal were the actual
eye-witnesses of the occurrence. None of the PW namely Mukhtar Ahmad
and Nasrullah were present at the time and place of occurrence when
Khadim Hussain got injured and fell down on the ground, Allah Yar
complainant and other persons who had attracted at the place of occurrence
and were related to the complainant party started attending Khadim Hussain
and by finding a chance I saved my life by running from the scene of
occurrence. On the following day I myself appeared before the I.O. and
stated the above said facts before him and also produced my licensed pistol
but the I.O. being in league with the complainant party did not record my
actual defence version nor he recorded the statements of my defence
witnesses namely Muhammad Munawar, Muhammad Sarfraz and Iqbal who
appeared with me before the I.O. and supported my defence version.
Numerous persons of the locality numbering more than 40/50 appeared
before the I.O. and stated that in fact it was Complainant party who was
aggressor. At the time of occurrence none of my co-accused was with me.
They have been involved by widening the net by the complainant party.
Previously there was no ill will or any kind of rivalry between the parties
except misunderstanding of the taking of snaps of the wife of Khadim
Hussain and I had no intention whatsoever or motive to commit the murder
of Khadim Hussain deceased."
On similar question to other accused persons, they all came out with the same reply
as made by Muhammad Akhtar alias Muhammad Akram. On conclusion of the trial
above conviction and sentence was recorded against Muhammad Akhtar and
Muhammad Anser, whereas, remaining two accused were acquitted.
5. Learned counsel for the accused/appellants argued that presence of witnesses
at the place of occurrence is doubtful, Shafqat and Saif-ul-Malook accused stood
acquitted on the same set of evidence; empties were sent after the arrest of accused,
in this way recovery of pistol and matching report of PFSA becomes
inconsequential; motive has not been proved; plea of accused Akhtar is more
plausible and has weight in contrast to shaky story of prosecution; accused Anser
was found innocent during investigation and nothing was recovered from his
possession and that it was an accident for which accused/appellants cannot be held
responsible as Muhammad Akhtar alias Muhammad Akram also received injuries
during the occurrence.
6. On the other hand, Learned Additional Prosecutor General came out with
straight forward stance that it is a case of prompt FIR, prompt Post Mortem
examination; presence of two injuries in proximity to each other with different
description rules out hypothesis of innocence of accused Muhammad Akhtar alias
Muhammad Akram who did not act in private defence rather it was an intentional
murder because complainant or the deceased were not armed at the time of
occurrence.
7. Learned counsel for the complainant has also put vehemence in arguments of
learned Additional Prosecutor General by adding that it was day light occurrence,
there was no mistaken identity; two fires at the body of deceased with no injuries to
others who were beating him speaks in clear terms the criminal liability of
Muhammad Akhtar alias Muhammad Akram accused. Further contends that
duration of injuries as observed by the doctor on the person of Muhammad Akhtar
though matches the time of occurrence but defence has lost sight of allegations that
there was an altercation one day prior to present occurrence as well; further states
that even doctor has did not rule out the possibility of fabrication in injuries.
However, learned counsel was at a low tone while defending the conviction and
sentence awarded to Ansar accused/appellant.
8. Proponents were heard; record perused.
9. In order to keep the things clear and straight, from the evidence available on
the record especially the defence version taken by Muhammad Akhtar alias
Muhammad Akram accused/appellant in his statement under section 342, Cr.P.C, it
becomes obviously clear that the occurrence and the participation of said
Muhammad Akram alias Muhammad Akhtar in the commission of the crime was
not denied, though both the parties have come out with their respective stance with
regard to mode and manner and the venue of occurrence. Now, it is for the Court to
see as which of the party has come out with truth or at least with an appealable and
plausible version.
10. The occurrence took place on 18.03.2010 at 08:30 a.m. and the FIR was
lodged at 09:30 a.m. on the same day, the police station was at the distance of 06
k.m. from the place of occurrence as alleged by the prosecution, therefore, for all
intent and purposes it was a prompt FIR. However, PW-6 and PW-7 while deposing
before the Court state that fire shot by Muhammad Akhtar hit on the chest and neck
of the deceased, whereas, fire attributed to Anser hit underneath his left flank, as
such, this contradiction is examined in the light of post mortem examination, which
was conducted at 10:45 a.m. after two hours of the alleged occurrence wherein Dr.
Husnain (PW-3) observed following three injures on the person of the deceased: -
INJURIES:-
1. A lacerated oval wound about 1 cm in diameter just below the neck in the mid
line in the first intercostals space. Burning and tattooing was present. Its
margins were inverted and abraded.
2. A lacerated wound with inverted margins about 1/2 cm in diameter just below
the left clavicle.
3. A lacerated wound about 1 cm in diameter with everted margin on the right
side of the back just along the medial aspect of scapula.
Injury No.1 carries burning and tattooing which shows that fire was made from a
very close range, second fire does not have same characteristics as that of injury
No.1 though stands in proximity with injury No.1 yet with no burning and
blackening, third injury is an exit wound. Injury No.1 attributed to Muhammad
Akhtar alias Muhammad Akram accused, whereas injury No.2 was the result of fire
attributed to Anser accused. The distance inter se the accused and victim as shown
in site plan (Ex.PA) is one Karam and 1-1/2 Karam respectively. Obviously, person
firing and the person receiving the injuries are not expected to remain static and
further even the distance of bullet emitting through muzzle of pistol is not
measured from the place where the accused is present, rather it is measured from
arm's length of the assailants. A karam is measured as equivalent to five feet
approx; arm's length would definitely further reduce such distance, as such the
situation came within the range and matches the effect shown as of presence of
burning and tattooing. PW-6 states that fire was made by Muhammad Akhtar alias
Muhammad Akram from a distance of one pace. PW-6 and PW-7 state in
examination in chief that fire of Muhammad Akhtar alias Muhammad Akram hit on
the neck and chest of Khadim Hussain which cover both the entry wounds as
reflected in the postmortem, whereas fire of Anser described by them as landed on
the left side of chest underneath flank of Khadim Hussain. Such injury on the flank
does not exist in the postmortem report. So, at the most an exit wound can be
calculated for the fire of Anser accused.
11. Group of witnesses who led the ocular account consisted of PW-6 and PW-7
whose presence at the place of occurrence was substantiated through their straight
forward testimony when PW-6 says in the words as under:-
"The residential house of accused persons is at a distance of 10 acres from the
place of occurrence towards east and our residence is at a distance of one
acre from the place of occurrence toward west, however we both the parties
live in the same village Botian Wali".
A suggestion was put by the defence about residence of Mukhtar PW, to which he
responded as under;
"It is correct that Mukhtar Ahmad PW is son of my real maternal uncle and his
house is also adjacent to my house".
Above expression does not leave any room for doubt about their presence at the
relevant time at the scene of crime as resident of same locality. During cross-
examination, in reply to question put by defence, PW-6 responded as under:-
"There was absolutely no dispute between both the parties of any kind prior to
this occurrence except the dispute of taking the snaps by Anser accused of
Mst. Shamim Bibi".
This question has left no option except to admission of motive which also finds its
place in similar way in the statement of accused/appellant Muhammad Akhtar alias
Muhammad Akram recorded under section 342, Cr.P.C.
 12. Two crime empties were recovered from the place of occurrence on
18.03.2010, Muhammad Akhtar alias Muhammad Akram accused was arrested on
25.03.2010, empties were sent to Punjab Forensic Science Agency, Lahore on
01.04.2010 after his arrest, pistol was recovered on the lead of said accused on
07.04.2010 and the same was sent to Punjab Forensic Science Agency, Lahore on
19.04.2010 and matching report of said crime empties with the pistol recovered
from the accused was received. As the empties were sent after the arrest of the
accused, therefore, no inference can be drawn with respect to effect of matching
report on the culpability of Muhammad Akhtar alias Muhammad Akram accused, so
recovery does not favour the prosecution in this case.
13. Motive has been attributed in this case as taking of snaps of Mst. Shameem
Bibi, wife of Khadim Hussain deceased and due to such indecent act, present
occurrence took place. No evidence was brought on record with respect to proof of
motive in this case except a suggestion during cross-examination. Neither Mst.
Shamim appeared during the investigation nor before the Court, even mobile phone
through which such snaps were taken has not been taken into possession nor was
produced during the trial. However, as a matter-of-fact Muhammad Akhtar alias
Muhammad Akram while answering to a question put to him during his statement
under section 342, Cr.P.C. in a manner admitted the differences between the parties
and the reason was almost the same which had formed the motive part, as alleged
by the prosecution. In this way prosecution case gets support of motive as well.
14. Although the prosecution had specifically named Anser as an accused and a
fire shot to the deceased was also attributed to him, but no crime weapon could be
recovered from him and further during the course of investigation the Investigating
Officer had opined that Anser and Shafqat accused were though present at the place
of occurrence but they were empty handed. When this aspect of the matter is
gauged by keeping in mind that Muhammad Akhtar alias Muhammad Akram had
admitted his participation, the crime weapon recovered on his lead matched with
the crime empties collected from the spot and further from the medical evidence,
though two fire shots carried somewhat different descriptions with regard to
distance, but if the fire may have been shot by one person, by one weapon, at one
time and may have been hit to one person, even then the same could differ in terms
of distance from which these were caused. Consequently, it can safely be inferred
from the above that Anser accused/appellant was falsely implicated in this case;
prosecution has failed miserably to establish the guilt against him in this case. As
such, this appeal to the extent of Anser succeeds, his conviction and sentence as
recorded by the learned trial court is set-aside and he is acquitted of the charge
against him. He is present before the court on bail; his sureties are discharged from
the liability.
15. As to the case of Muhammad Akhtar alias Muhammad Akram, as detailed
above, he has admitted the occurrence but has come up with a defence version. In
his defence, one witness Munawar Ali DW-1 was also produced in evidence but the
defence version could not be established in any manner for the reason that it has
nowhere come in the evidence that complainant party carried any sort of weapon
with them when purportedly they launched attack on the accused party. This being
the position, there was no justification at all for the accused/appellant to have
exercised the right of self-defence. This aspect gets further strength by the fact that
after scrutiny of the medical evidence, as discussed above, it has been proved that
both the shots were fired by Muhammad Akhtar alias Muhammad Akram alone.
Had Muhammad Akhtar fired in exercise of self-defence, he could only use the
force which was sufficient to ward off the attack, but here in this case since the
complainant party had no weapon with them, therefore, repeated fire shots by him
by no means advance his plea of self-defence, nor the medical evidence supports
that pistol went off and fire accidentally hit the deceased, in that case it must have
only one fire. In order to prove his plea accused/appellant did not enter on to his
defence while appearing as his own witness under section 340(2), Cr.P.C. nor filed
written statement as required under section 265F, Cr.P.C.; therefore, calling of
defence witness directly somewhat raises question about legality of such evidence.
Though courts are in practice of calling defence witnesses on the request of
accused, yet whether such exercise is within the permissible legal domain, is a
question that can be thrashed by highlighting the relevant law on the subject which
exercise is done in the next paragraph.
16. The accused (Muhammad Akhtar alias Muhammad Akram) has raised a plea
of defence that deceased assaulted upon him and he in exercise of right of private
defence took out a pistol to deter the attacker which pistol during scuffle went off
accidently, such plea accused was obliged to prove by adducing evidence, mere
raising it as a stance through his suggestions during cross-examination on PWs or
in his statement under section 342, Cr.P.C. does not fulfill the requirement of law. It
is trite that prosecution is bound to prove the guilt against the accused beyond
reasonable doubt and accused is not obliged to discharge the burden of proof; any
admission or plea raised by him would have no value and cannot be used against
the accused as settled by honourable Supreme Court in different reported cases; all
such reported cases have been given space in the recent Judgment "Ali Ahmad and
another v. The State and others" (PLD 2020 SC 201). Through said case it has been
enunciated that once the prosecution proves its case against the accused, then
burden shifts to the accused to prove his plea or admission if any. In this case
prosecution remained successful in proving the charge against the accused beyond
reasonable doubt; accused should have discharged evidential burden to dislodge the
case of prosecution for taking it to falling under any of General Exception under
P.P.C. or, out of the ambit of Qatl-i-amd. In another case reported as "The State
through P.G. Sindh and others v. Ahmed Umer Sheikh and others" (2021 SCMR
873), Honourable Supreme Court has observed that it is not the legal burden but the
evidential burden that shifts to the accused, if he had any special knowledge of
circumstances of the case.
17. In this case prosecution has proved unlawful killing of Khadim Hussain at
the hands of Muhammad Akhtar alias Muhammad Akram; therefore, presumption
that it was intentional killing would run against him until he rebuts it. It is trite that
once the prosecution proves a primary fact, the burden to dislodge the presumed
fact would be on the accused; it has been explained principally by the theory of an
English Jurist as under;
"according to theory of Professor Thayer, a leading exponent, proof of the
primary fact creates an evidential burden in the opponent with respect to
 presumed fact. Therefore, presumed fact will be taken as proved unless the
opponent adduces some evidence to rebut the presumption, though he need
not 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 also
known as the "bursting bubble" theory. Professor Glanville Williams
describes presumptions governed by this theory as 'evidential presumptions'.
In that case, accused would acquire at the most evidential burden as to the
presumed fact".
(An extract from a book "Murphy on Evidence", 6th Edition by Peter Murphy)
18. Leading evidence by the accused to dislodge a proved fact is matter of
procedure; mere stating a fact in a statement under section 342, Cr.P.C. does not
fulfill that requirement. Ours' is the adversarial system which provides equal
opportunity to both the parties to prosecute or defend pursuant to fundamental right
of fair trial and due process guaranteed through the Constitution of Islamic
Republic of Pakistan. Barring some situations, scheme of criminal procedure
usually requires "he who alleges or levels the allegation of commission of offence
would lead the evidence first". In a sessions trial, leading of evidence is regulated
under section 265-F of Cr.P.C., which is reproduced for reference:-
"265-F. Evidence for prosecution. (1) If the accused does not plead guilty or the
Court in its discretion does not convict him on his plea, the Court shall
proceed to hear the complainant (if any) and take all such evidence as may
be produced in support of the prosecution.
Provided that the Court shall not be bound to hear any person as complainant in
any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be,
from the complainant, the names of any persons likely to be acquainted with
the facts of the case and to be able to give evidence for the prosecution, and
shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that
such witness is being called for the purpose of vexation or delay or
defeating the ends of justice. Such ground shall be recorded by the Court in
writing.
(4) When the examination of the witnesses for the prosecution and the
examination (if any) of the accused are concluded, the accused shall be
asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the
record.
(6) If the accused, or any one of several accused, says that he means to adduce
evidence, the Court shall call on the accused to enter on his defence and
produce his evidence.
 (7) If the accused or any one or several accused, after entering on his defence,
applies to the Court to issue any process for compelling the attendance of
any witness for examination or the production of any document or other
thing, the Court shall issue such process unless it considers that the
application is made for the purpose of vexation or delay or defeating the
ends of justice such ground shall be recorded by the Court in writing."
It sets a pattern of order of recording of deposition. This section says that at first
occasion court shall hear the complainant and then take all such evidence as may be
produced in support of the prosecution; for that purpose, court shall require the
prosecutor or the complainant to name the persons likely to be acquainted with the
facts of the case and to be able to give evidence, and then evidence of witnesses
shall follow. Similarly, when the evidence of prosecution and the examination of
accused are concluded, accused shall be asked whether he means to adduce
evidence, and if he opts to adduce evidence, then as per above section, there are
two methods to adduce evidence by the accused which are as follows;
i. he would put in any written statement, or
ii. adduce evidence.
The use of word "written statement" is meaningful in the sense that evidence of
prosecution against the accused has been adduced on oath; therefore, he must defy
the allegation in the same way i.e., on oath. Statement oral or written does require
that it should be made on oath to transform it into admissible format. As a corollary
to written statement on oath, light and guidance can also be taken with reference to
written statement defined in C.P.C., it is being part of pleadings as mentioned under
Order VI, Rule 1 of Code of Civil Procedure, 1908 (C.P.C.) which is required in a
suit and it carries certain legal requisites that it must have verification (on oath or
solemn affirmation) at the bottom that the contents of such and such paragraphs are
based on his personal knowledge or from information received, as required under
Order VI, Rule 15 of C.P.C.
If the accused does not want to appear as his own witness but put on any written
statement, then it must be in that format as highlighted above, so as to help the
court to consider the facts based on oath as probable if it wishes to summon any
material witness as DW or CW, or call for any document, indicated in said written
statement, which is necessary for the just decision of a case. As per provisions of
above section written statement of accused shall be filed with the record. It can be
used as an evidence. Reliance is placed on the case "Muhammad Afzal v. The
State" (2013 PCr.LJ 591). Even it is a bundle of information to exercise
inquisitorial powers by the court. The case reported as "Harbhajan Singh v. State of
Punjab and another" (AIR 1966 Supreme Court 97) throws light on the importance
and utilization of written statement.
If the accused means to adduce evidence, the court shall call on the accused to
enter on his defence and produce his evidence. "Entering on to defence" means
accused shall appear as his own witness as required under section 340(2) of Cr.P.C
for recording of his statement and then face the cross-examination as required
under Article 44 of Qanun-e-Shahadat Order, 1984; thereafter, he shall produce the
witnesses in support of his evidence in the same fashion as it was done by the
complainant in first episode of trial. The accused has also been provided facility of
calling his witnesses through the court process once he entered on his defence.
Witness is usually called to support a stance raised by a party; if party is not
examined first, there is no meaning for appearance of a witness.
19. Above discussion manifests that defence witnesses could only be called after
the accused enters on his defence as a witness; appearing as a witness by the
accused though as per section 340(2), Cr.P.C. is mandatory but the Honourable
Supreme Court in a case "Mst. Ameer Khatun v. Faiz Ahmad and others" (PLD
1991 SC 787) has declared such provision as against the Article 13 of the
Constitution of Islamic Republic of Pakistan, 1973 on the principle that no person
shall be compelled for self-incrimination.
20. As per above observation, it is now optional for the accused to appear as his
own witness and he cannot be compelled; yet if he does not appear as a witness, he
can go for an alternate by filing a written statement to avoid any cross-examination,
yet in this way he would be in a position to produce his witnesses in support of
averments of written statement. This observation is further elaborated in the terms
that Evidence has been defined by Article 2(c) of Qanun-e-Shahadat Order, 1984 as
under:-
(c) "evidence" includes
(i) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry, such statements are
called oral evidence, and
(ii) all documents produced for the inspection of the Court; such documents are
called documentary evidence;"
All such statements shall be made on oath as required by section 5 of Oath Act,
1873; therefore, when these statements are made an oath, it is called that witnesses
have been testified. Such testified statements become deposition and are regarded
as testimony of witnesses of either party. The word "testimony" has been derived
from a Latin word "Testis", its fragments "Te" stands for "Tri" or third and "Stis"
means "stance" or "stand"; so "testis" means "third stand/stance". Usually both the
parties bring on record their respective stances which could only be verified or
defied with a third stand/stance and that third stance is in the form of witness to the
parties. All that shows that a witness in support of party would only be called if the
party first raises a stance through approved legal procedures. The intent and
purpose of legislature to balance the opportunities for adducing evidence by both
the parties is reflected from the above section which in fact saves the fundamental
right of fair trial; it must be followed by all subordinate courts conducting trials
under Chapter XXII-A of Cr. P.C.
21. Having failed to establish the plea of self-defence, this court has no other
view except to hold that in fact it was Muhammad Akhtar alias Muhammad Akram
who had made repeated fire shots on deceased Khadim Hussain and this fact stands
fully established through the prosecution evidence. For what has been discussed, it
is crystal clear that accused/appellant has not brought on record his stance and
defence witness in the process through formal ways; therefore, his plea could not be
substantiated during the trial which disentitles him to claim acquittal. Learned trial
court, keeping in view some mitigating aspects like inconsequential effect of
recovery and no previous enmity, has already extended leniency to the
accused/appellant in terms of sentence awarded to him which perfectly confirms to
principle of sentencing known as "Just desert" it requires the court that sentence
must commensurate with the act of offender which is justified in this case. In the
sequel, the appeal filed by Muhammad Akhtar alias Muhammad Akram is
dismissed, his conviction and sentence awarded by learned trial court is maintained.
He is present on bail; he was ordered to be taken into custody and be sent to the jail
for serving out of his sentence. His sureties are discharged.
22. In the light of observation made above while dismissing the appeal of
Muhammad Akhtar alias Muhammad Akram and by acceptance of appeal of Anser,
Criminal Revision No.113/2011 which has been filed by Allah Yar (complainant)
seeking enhancement of sentence qua both the above accused/appellants has no
force which is dismissed. The case property, if any, be disposed of in accordance
with law and the record of the learned trial court be sent back immediately.
JK/M-215/L Appeal dismissed.
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