' ABDUL HAMEED DOGAR, J.--- This judgment will govern Criminal Petition No,164-L of 2003 filed by petitioner-complainant Talab Hussain and another as they arise out of common judgment, dated 6-2-2003 passed by a learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan, whereby Criminal Appeal No,99 of 1987 filed by petitioner Elahi. Bakhsh and convicts, namely, Allah Bakhsh, Ghulam Hussain, Nazir Ahmed, Elahi Bakhsh son of Nabi Bakhsh, Hazoor Bakhsh, Khuda Bakhsh and Ghulam Rasool was dismissed. Vide said judgment conviction and sentence of imprisonment for life against petitioner Elahi Bakhsh son of Noor Muhammad under section 304(1), P.P.C. Was maintained whereas sentence of other co-convicts was reduced from imprisonment for life to the sentence already undergone by them. The conviction and sentence under section 148, P.P.C. Awarded by the trial Court against all of them was set aside. As regards conviction and sentence awarded to convicts, namely, Ghulam Rasool, Elahi Bakhsh son of Nabi Bakhsh, Allah Bakhsh, Hazoor Bakhsh Nazir Ahmad and Ghulam Hussain under sections 323, 324 and 325, P.P.C.
Distinctly were reduced to the same al-ready undergone by them. However, sentence of fine against all of them was maintained. Criminal Revision No,187 of 1989 filed by complainant Talab Hussain seeking enhancement of sentence of all above mentioned convicts was also dismissed.
2. The fateful incident took place on 3-4-1982 in village Kotla Rahim Ali Shah, within the jurisdiction of Police Station Jatoi, District Muzaffargarh, which was registered as Crime No,35 of 1982 at the behest of complainant Talab Hussain. While narrating the incident, complainant reiterated that on the above mentioned date he, his brothers Abdul Qadir, Abdul Khaliq and Allah Bakhsh were constructing their house at Chah Sukhay Wala and for that purpose mud was to be prepared which required water. It was at about 10/11 a.m. Complainant's brothers Abdul Qadir, Abdul Khaliq and Abdul Malik diverted the water of convict Ghulam Rasool from his tubewell for preparing the mud, upon which an altercation took place in between them. Whereafter convict Ghulam Rasool and Elahi Bakhsh started abusing them, upon which Abdul Qadir and , Abdul Malik slapped them, who left the place while issuing threats. Suddenly, there appeared petitioner Elahi Bakhsh son of Noor Muhammad, convict Elahi Bakhsh son of Nabi Bakhsh, Khuda Bakhsh and Ghulam Rasool. Out of them Ghulam Rasool was armed with hatchet whereas rest were holding Soties in their hands.
As per case of prosecution, petitioner caused Soti blow on the head of Abdul Qadir whereas others inflicted him injuries on various parts of his body, due to which he collapsed on the ground. P.W.
Abdul Malik tried to rescue him, upon which convict Ghulam Rasool caused two hatchet blows which hit on his head and left hand. Convict Elahi Bakhsh son of Nabi Bakhsh, Allah Bakhsh and Hazoor Bakhsh also caused stick blows to P.W. Abdul Khaliq on his head, wrist, shoulder, right wrist and left arm. Convict Nazir Ahmad and Ghulam Hussain also gave Sota blows to P.W. Allah Bakhsh on wrist, right shoulder, back and left knee. On cries, the persons from neighbourhood got attracted who entered them. The injured persons were removed to the hospital for treatment.
3. Initially the F.I.R. Was lodged under sections 307/148/149, P.P.C. But after the death of deceased Abdul Qadir, section 302, P.P.C. Was added.
4. On 12-4-1982, petitioner and all other convicts were arrested and sticks were recovered from their possession.
5. On completion of investigation, all of them were sent up to face trial before the Court of learned Additional Sessions Judge-III, Muzaffargarh.
6. Prosecution in order to prove its case, examined (14) witnesses in all.
7. On 4-4-1982, Dr. Muhammad Afzal conducted autopsy on the dead body of deceased and noticed following injuries:--
(i) A lacerated wound 2" x 1/2" stitched on left hand 3-1/2" above left ear.
(ii) An abrasion 3-1/4" on left wrist ulna side.
(iii) A transverse contusion mark 4" x 1-1/4" on back of left thorax.
(iv) A contusion mark 2" x 1-1/4" below left axilla.
(v) A contusion mark 5" x 1" just above injury No,3.
(vi) An abrasion 1/4" x 1/4" on left knee.
' Injury No,1 was declared grievous and fatal while rest were simple in nature.
8. On the same day, he also examined injured, namely, Abdul Khaliq, Allah Bakhsh and Abdul Malik and found the following injuries on their persons:-- ' Abdul Khaliq
(1) A lacerated wound 2" x 1/4" into bone deep is present on left ear. Advised X-ray skull.
(2) A transverse contusion mark 7" x 1-1/2" on back of left deltoid and adjoining back.
(3) A contusion mark 4" x 1-1/2" on back of left upper arm.
(4) A transverse contusion mark 8" x 1" below injury No,2.
(5) A contusion mark 9" x 1" across the lumbar region.
(6) A contusion mark 4" x 1" in the middle of back of left chest.
(7) A contusion mark 5" x 1" on the right upper arm.
(8) A transverse contusion mark 4" x 1" across back of right forearm below elbow.
(9) A contusion mark 3" x 1" on middle and back of right fore-arm.
(10) A contusion mark 3" x 1" on back of wrist.
(11) Painful swelling an back of right hand.
' Injuries Nos.1, 2, 4, 8 to 11 were under observation. Rest were simple. All the injuries were caused with blunt weapon.
' Allah Bukhsh
(1) An oblique lacerated wound 1-3/4" on back and right side of head 3" above right ear.
(2) An abrasion 3/4" x 3/4" on right shoulder. Advised X-ray.
(3) A contusion mark 7" x 1" on back of right shoulder.
(4) An oblique contusion mark 8" x 1" on back of chest more on left side.
(5) A contusion mark 4" x 1" back of left shoulder.
(6) A transverse contusion mark 4" x 1" on middle of back.
(7) An contusion mark 4" x 1" on outer part of left elbow.
(8) An abrasion 1/2" x 1/2" on left elbow.
' Injuries Nos.l, 3 and 4 were under observation. Rest were simple. All the injuries were caused with blunt weapon.
' Abdul Malik
(1) A transverse lacerated wound 1-1/2" x 1/2" bone deep in front of left corner of forehead.
(2) Superficial cut 1/2" on back and root of left ring finger.
(3) Superficial cut 1/2" on back of root of left middle finger.
(4) An abrasion 3" x 1/4" on middle and back of right thorax.
9. In their respective statements recorded under section 342, Cr.P.C. All of them denied the case of the prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
10. On the conclusion of trial, the learned trial Court convicted and sentenced petitioner Elahi Bakhsh and convicts Elahi Bakhsh son of Nabi Bakhsh, Khuda Bakhsh and Ghulam Rasool distinctly, as stated above.
11. Being aggrieved, petitioner Elahi Bakhsh and convicts, namely, Allah Bakhsh, Ghulam Hussain, Nazir Ahmad, Elahi Bakhsh, Hazoor Bakhsh, Khuda Bakhsh and Ghulam Rasool assailed the judgment in appeal before learned Lahore High Court, Multan Bench in Criminal Appeal No,99 of 1987 whereas complainant Talab Hussain challenged acquittal of petitioner Elahi Bakhsh and other co-convicts from the charge under section 302, P.P.C. Through Criminal Revision No,187 of 1987 which were disposed of vide impugned judgment in terms stated above.
12. We have heard Ch. Muhammad Amin Javed, learned Advocate Supreme Court for petitioner in Criminal Petition No,164-L of 2003 and have gone through the record and the proceedings of the case in minute particulars!
13. Learned counsel for petitioner criticized impugned judgment and contended that the same is not sustainable in law as it is based on misreading and non-appraisal of evidence. According to him, the incident was not pre-meditated but occurred at the spur of moment over the turn of water. It was the complainant party which had in fact aggressed, as such, the case would not fall under section 304-I, P.P.C. But would fall under section 304-II, P.P.C. And petitioner deserves leniency in his sentence. He contended that principle of rule of consistency required that petitioner should have been treated at par with the other convict whose sentence was reduced to one already undergone as he is alleged to have caused a solitary stick blow on the head of deceased. Learned counsel vehemently contended that in fact the complainant party was aggressor and it was they who initiated the incident which aspect of the matter has not been considered by the Courts below while holding the petitioner guilty of offence.
14. It is established on record that prior to incident an altercation took place between the parties and it was in retaliation whereof, the petitioner party went to their house and returned duly armed with lethal weapons and caused injuries to deceased Abdul Qadir, injured Abdul Khaliq, Abdul Malik and Allah Bakhsh. The ocular version furnished by the injured is fully corroborated by medical evidence. Even otherwise as per post-mortem report, injury No,1 proved fatal which according to the case of prosecution is attributed to petitioner. On the contrary, it was the petitioner who raised the defence plea in his statement under section 342, Cr.P.C. Claiming that it was the complainant party who initiated the incident by diverting their water for preparing mud. According to him, deceased Abdul Qadir and P.W. Abdul Malik armed with Kassies came at the `Naka' and blocked the flow of water and diverted the same to their side. On their protest, it was deceased and P.W.
Abdul Malik who caused injuries to them with Kassies. Petitioner has categorically stated therein that he and convict Ghulam Rasool exercised their legal right of defence of their persons and property as provided in sections 101 and B 103, P.P.C. Against the robbery committed by deceased and his party men and in ensuing fight which erupted due to the mischievous conduct. Since they did not initiate the trouble and acted in self-defence, therefore, their defensive act or measure does not fall within the purview of section 149, P.P.C.
15. It is settled principle of law that when a defence plea is raised by accused, the burden to prove the same lies upon them which in the instant case petitioner has failed to prove the same miserably. Even otherwise, if the said plea of right of self-defence is examined in juxtaposition to the case of prosecution, it does not appeal to prudent mind to be true and convincing mainly for the reason that neither counter-case regarding such plea was lodged by petitioner nor such plea was even suggested to the witnesses during their cross-examination. Above all petitioner has admitted his presence at the place of incident at the relevant time, as such, he cannot be absolved from liability in the commission of offence.
16. Irrespective of the above analysis of the evidence, the findings recorded by the two Courts below against petitioner are cogent and reasonable which do not warrant any interference and are thus, maintained. Though nobody has entered appearance on behalf of complainant Talab Hussain in Criminal Petition No,197-L of 2003, yet his case has also been considered in detail but no ground for enhancement of sentence is made out.
17. Accordingly, both petitions being devoid of force are hereby dismissed and leave to appeal refused.