' ABDUL HAMEED' DOGAR, J.--- This appeal with the leave of the Court is directed against the judgment, dated 18-3-2003 of a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No,15 of 2000 filed by appellant Yara and his co-convicts namely Muhammad Khan, Arif, and Sabaj alias Shahbaz was dismissed and their conviction and sentence were maintained, Criminal Appeal No,111 of 2000 filed by complainant challenging acquittal of Jehangir alias Bhai Khan and other co-convicts namely Muhammad Khan, Arif, Sabaj alias Shahbaz from the charges under sections 302/148/149, P.P.C. And Criminal Revision No,156 of 2000 seeking enhancement of sentence of appellant Yara were also dismissed.
2. The fateful episode in this case took place on 6-11-1993 at 10-00 a.m. In the house of Yara son of Sada, situated in village Aasian, Chaniot. F.I.R. Was lodged by complainant Muhammad, maternal- uncle of deceased Mst. Sughran Bibi, on the same day at 3-55 p.m. At Police Station Saddar, Chiniot, wherein it was alleged that on 6-11-1993, complainant Muhammad along with Muhammad Ashraf, Sardaran and Sughran Bibi was present in the house of Yara son of Sada when suddenly appellant Yara along with accused Arif, Muhammad Khan, Thiraj and Jahangir alias Bhai Khan armed with guns appeared there and after raising Lalkara started firing at the complainant party.
The complainant and the other witnesses took shelter behind a wall whereas Mst. Sughran Bibi tried to see the assailants by peeping from the window of the said wall. Appellant Yara allegedly fired shot which hit on her head and she fell down. On their hue and cry, P.Ws. Mirja and Muhammad Nawaz got attracted at the spot and saw the incident. The injured was shifted to Civil Hospital, Chiniot and from there, she was shifted to Allied Hospital, Faisalabad, where she succumbed to the injuries on 12-11-1993.
3. The motive behind the incident is that after consolidation proceedings, appellant Yara had constructed a cattle-shed in the vacant plot adjacent to his house in Abadi Deh over which the complainant party had the grudge. In order to avenge, they in furtherance of their common object forcibly occupied the said Ihata, launched an attack and caused injuries to Mst. Sughran Bibi.
4. On conclusion of investigation, appellant was sent up to face trial along with co-convicts namely, Muhammad Khan, Arif, Sabaj alias Shahbaz and acquitted accused Jahangir alias Bhai Khan.
5. On autopsy, Dr. Irfan-ul-Aziz (P.W.9) found the following injuries on the person of Mst. Sughran Bibi:
(i) A lacerated wound 1 c.m. x 3/4 c.m. On left side of head 10 c.m. From left ear.
(ii)A contused swelling 8 c.m. x 4 c.m. With abrasion 3 c.m. x 1-1/2 c.m. Over it on left cheek.
(iii) A swelling 11 c.m. x'7 c.m. On right cheek.
6. The prosecution in order to prove its case examined 13 witnesses in all.
7. Appellant and his co-accused in their respective statements recorded under section 342, Cr.P.C., 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.
'However, co-convict Sabaj alias Shahbaz produced in defence copy of the register Haqdaran Zamin.
8. On the conclusion of trial, learned trial Court vide judgment, dated 14-12-1999 convicted appellant Yara under section 302(b), P.P.C. And sentenced to imprisonment for life and a fine of Rs,25,000 under section 544-A, Cr.P.C. Which if recovered, was directed to be paid to the legal heirs of the deceased. In default whereof, he was directed to further undergo six months' R.I. Accused Jahangir alias Bhai Khan was acquitted whereas accused Muhammad Khan, Arif and Sabaj alias Shehbaz were convicted under section 324, P.P.C. And sentenced to suffer R.I. For five years with fine of Rs,10,000 each or in default whereof to further undergo six months' R.I. Each. They were also given the benefit of section 382-B, Cr.P.C.
9. Being aggrieved, appellant Yara, co-convicts namely Muhammad Khan, Arif, and Sabaj alias Shahbaz challenged the judgment in appeal before learned Lahore High Court, Lahore whereas complainant filed criminal revision seeking enhancement of the sentence of appellant Yara and also filed criminal appeal challenging the acquittal of Jahangir and co-convicts from the charge under section 302, P.P.C., which have been dismissed vide impugned judgment.
10. On 17-10-2003 leave to appeal was granted by this Court to consider, inter alia, the contentions by the learned counsel for the appellant in the light of evidence on record for safe administration of justice.
11. We have heard Dr. Babar Awan, learned Advocate Supreme Court for appellant and Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for State and have gone through the record and the proceedings of the case in minute particulars.
12. It is mainly contended by the learned counsel for appellant that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He maintained that the ocular evidence is contradicted by the medical evidence and suffers 'from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. According to him, as per record, appellant was in possession of land in dispute and it was the complainant party who being armed with fire-arms attacked upon them and during the process, a stray pellet hit Mst.
Sughran Bibi which proved fatal and she died later on in the hospital. Learned counsel submitted that in fact the incident was un-witnessed one. According to the site plan prepared by P.W.7 Ghulam Dastagir (Draftsman), the witnesses were said to be standing at some distance behind the deceased, therefore, it was not possible for them to see the occurrence. According to him, medical report reveals that the injuries were caused to the deceased from equal level whereas the version put forth by the prosecution is that the victim was fired at when she was peeping from the window which was at the higher level. He lastly contended that the defence plea raised by the appellant was not taken into consideration at all by the Courts below and no cogent reason of whatsoever nature was advanced for disbelieving the same.
13. On the other hand, learned counsel for State, has defended the impugned judgment and has argued that the incident was not only premeditated but was pre-planned. According to evidence on record, it has been established that it was the appellant party Who managed an attack on the complainant party after forming unlawful assembly and made indiscriminate firing as a result of which Mst. Sughran Bibi received injuries and died later on. According to him, the ocular version furnished by the witnesses, namely, Muhammad (P.W.4), Muhammad Nawaz (P.W.5) and Muhammad Ashraf (P.W.6), is fully corroborated by the medical evidence.
14. Admittedly, the incident in this case took place in the house of one Yara son of Sada where complainant Muhammad was present along with Muhammad Ashraf, Mst. Sardaran and Mst.
Sughran Bibi. The prosecution has fully proved its case by producing cogent evidence to the extent that it was appellant Yara who made indiscriminate firing resulting in the death of Mst. Sughran Bibi. Though the witnesses were cross-examined at length yet their evidence was not shattered at all. The contention that according to site plan, eye-witnesses were standing at some distance behind the deceased, therefore, they did not see the occurrence, is devoid of force mainly for the reason that all the eye- witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on the head' while she was peeping from the window. None of the eye- witnesses has said that they were standing at the backside of the deceased. Since the site plan is prepared by Draftsman who admittedly is not an eye-witness, as such, his testimony cannot be given preference over the ocular version furnished by natural eye-witnesses. Moreover, not even a single question was suggested to P.W.7 Draftsman about the presence and location of the eye- witnesses.
15. As regard medical evidence, the same is in consonance with the eye-witness account.
According to the initial medical certificate and postmortem notes, the deceased had received fire- arm injuries at left temporal region which corroborates the ocular account.
16. Before discussing the defence plea, it would be appropriate to reproduce the relevant portion from the statement of appellant Yara recorded under section 342, Cr.P.C.
"Muhammad Ashraf P.W. And Zakir collected persons including one Feroz Galoter and resorted to firing on our houses, many shots hit the wall of our house. With the view to create terror and to stop me from re-constructing the fore-wall, Mst. Sughran who was inside the house of Yara P.W. (given up) received the injury due to the firing by Ashraf P.W. Feroz Gelotar etc. While she was near to the hand-pump."
17. From the above statement, it is manifest that appellant had taken a specific plea that the deceased was fired at by P.W. Muhammad Ashraf and one Feroz Gelotar inside the house of Yara son of Sada, but failed to substantiate the same. It is settled principle of law that when a specific defence plea is raised by an accused, burden to prove the same shifts upon him. In that context neither the F.I.R. Was lodged by the appellant E nor was any evidence adduced. On the contrary, the presence of appellant is admitted in the house of Yara son of Sada where incident F took place.
18. For what has been stated above, we do not find any ground to interfere with the concurrent findings of two Courts below. Accordingly, the appeal being devoid of force is hereby dismissed.