' MIAN MUHAMMAD AJMAL, J.--- By this common judgment we propose to dispose of Criminal Petitions No,92 of 2003 filed by the complainant for enhancement of sentence of the respondent and Criminal Petition No,94 of 2003 filed by the convict against his conviction and sentence, as they have arisen out of common judgment and involve identical questions of law and facts.
2. Brief facts are that on 9-4-1999 at 8-15 P.M. Naveed Akhtar complainant alongwith Irfan Afzal went to Khan Video Centre, Bhoun Road, Chakwal for getting cassettes on rent where hot words were exchanged between Irfan Afzal and Muhammad Saeed Khan petitioner, the owner of the Video Centre, whereupon Muhammad Saeed Khan took out 30-bore pistol from his drawer and fired four shots at Irfan Afzal which hit him on his right flank, abdomen and both legs as a result of which he fell down. Meanwhile Hayat Muhammad son of Maula Dad Khan and Hayat Muhammad son of Ghulam Muhammad came at the spot. The accused decamped from the spot with the weapon of offence. Irfan Afzal succumbed to the injuries while on his Way to the Hospital. On the statement of Naveed Akhtar a case under sections 302, P.P.C. Was registered with Police Station, City Chakwal, District Chakwal against Muhammad Saeed Khan for the murder of. Irfan Afzal. On completion of investigation, challan against the accused was put in the trial Court. He was charged to which he pleaded not guilty and claimed trial. After conclusion of prosecution evidence, the accused was examined under section 342, Cr.P.C. Wherein he denied the allegations and took the plea of self-defence. The trial Court on assessment of the evidence on record convicted Muhammad Saeed Khan peiitioner in Cr.P.94 of 2003 under section 302(b), P.P.C. And sentenced him to life imprisonment with fine of Rs,50,000 or in .Default thereof to further undergo R.I. For two years. It was ordered that Rs,30,000 out of the fine, if recovered. Would be paid to the legal heirs of the deceased. The convict petitioner challenged his conviction and sentence before the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No,9 of 2000 whereas the complainant filed Criminal Revision No, 11 of 2000 for enhancement of sentence of the convict petitioner and a learned Judge in Chambers of the High Court vide his consolidated judgment, dated 7-2-2003, impugned herein dismissed both the appeal and the revision petition by maintaining the conviction and sentence of the petitioner. The complainant has challenged the judgment of the High Court through Criminal Petition No, 92 of 2003 whereas the convict petitioner has filed Criminal Petition No,94 of 2003.
3. We have heard the learned counsel for both the petitioners and have gone through .The record of the case. Theconvict petitioner has taken the plea of right of self-defence while answering Question No,4 in his statement under section 342, Cr.P.C. Which is as follows:--- "The fact of the matter is that only the deceased had come to my shop to take away some cassettes which I refused to give him unless he make advance payment to me over which the accused started abusing me and when I further insisted, he took out a pistol from his 'dab' and I apprehending death at his hand tried to snatch the pistol from his hand, in which process three or four shots were fired which hit the deceased. I had acted completely in my self defence.
' I appeared before the police on the same night and narrated my above version to the Investigating Officer who did not record it and on the following day on his asking I arranged the production of my licensed pistol P-5 from which shots were firedthe police station and were shown to have been recovered by the police and were thus substituted with the empties which had been fired from the pistol of the deceased and in this way sent to Forensic Science Laboratory and managed to have wedded with my licensed pistol. The police suppressed the recovery of pistol of the deceased because that completely would have supported my version."
' The defence version that during snatching the pistol from the deceased three or four fire shots went off which hit the deceased, is not appealing at all. It is strange that during the scuffle of snatching pistol, the petitioner did not receive even a scratch. It is also not believable that his licensed pistol which he produced before the police, was substituted for the real weapon of offence.The plea of self-defence taken by the petitioner appears to be un-founded as he failed to substantiate his claim by any cogent proof. Under Article 121 of the Qanun;e-Shahadat Order, 198,4 the onus to prove the existence of circumstances bringing his case within any of the General Exceptions in the Pakistan Penal Code or within any special exceptions or proviso contained in any other part of the same Code or in any law, was on him which he failed to discharge and in such circumstances presumption can be drawn against him. Since the petitioner has failed to prove his defence plea by any evidence so much so that he did not even appear under section 340(2), Cr.P.C, to give evidence on oath in disproof of the charges or allegations against him, therefore, presumption can be drawn against him and such a plea cannot be sustained in absence of any proof. There is no doubt that the prosecution has no prove its case and the defence version, if reasonably possible being true, can be taken into consideration but where such a plea is a mere claim and is not convincing and there is not even an iotaof evidence in support of the such plea except for certain suggestions put to the P.Ws. In cross-examination which were categorically denied, such a plea cannot be maintained.
4. The prosecution has proved its case against the single accused through ocular account of Naveed Akhtar complainant (P.W.6) and Hayat Muhammad (P.W.7), production of pistol by the petitioner which matched with the empties recovered from the spot. Naveed Akhtar complainant P.W.6 and Hayat Muhammad P.W.7 who have given eye-account of the occurrence are reliable witnesses and their evidence has not been shattered by the defence which finds support from the production of licensed pistol by the accused-petitioner which has been admitted by him in his statement under section 342, Cr.P.C. The empties recovered from the spot duly matched with the licensed pistol of the petitioner which is a strong corroborative piece of evidence against him. The post-mortem report also supports the prosecution case as according to it five injuries including the exit were found on the body of the deceased. Placing both the versions in juxtaposition against the background of proved facts and circumstances, the defence plea is not reasonably possible whereas the prosecution has proved its case beyond any doubt and the trial Court on consideration of the fact that it was a sudden occurrence which was neither, premeditated nor motivated, awarded lesser punishment which has been affirmed by the High Court. We do not find any merit in this petition which is dismissed. Since two Courts have properly appraised and appreciated the evidence and have awarded one of the legal punishments, therefore, we are not inclined to enhance the sentence awarded to the convict by the learned two Courts.
5. In view of the above both these petitions are dismissed and leave refused.