' TASSADUQ IIUSSAIN JILLANI, J.--- Leave to appeal is sought against the judgment, dated 25-11- 2004 passed by a learned Division Bench of the Lahore High Court, Lahore vide which petitioner's appeal against the judgment of trial Court, dated 10-8-2000 was dismissed and the conviction of the petitioner under section 302(b), P.P.C. And the sentence of death awarded as also a compensation to the tune of Rs,30,000 to be given to the legal heirs of deceased Muhammad Khan was affirmed.
2. Petitioner was tried in case registered (vide F.I.R. No,93, dated 13-4-1999 under section 302, P.P.C. Police Station Midh Ranjha, Tehsil Bhalwal, District Sargodha) on the allegation that on the fateful day and time he caused the murder of Muhammad Khan by giving him hatchet blows while he was asleep. The deceased, it was alleged, had come to the house of the accused along with Muhammad Aslam and Allah Yar (P.W,3) in connection with a dispute over an amount of Rs,35,000 which the father of the petitioner namely Nazra owed to the deceased. As the night fell, the deceased and the P. Ws. Were advised to sleep there so that the matter could be discussed further next day and during the night when Muhammad Khan was fast asleep he was done to death.
3. The case was registered on the statement of Muhammad Altaf, who appeared as P.W.2. He is an eye-witness. His statement is corroborated by P.W.S Allah Yar. After arrest the petitioner led to the recovery of blood-stained hatchet which was duly proved by P.W.3 Allah Yar and P.W.7 Muhammad Anwar Khan. The petitioner admitted the occurrence but his case during trial (in his statement under section 342, Cr.P.C.) was that ".... At about 2/3 a.m. On the same night, I came to my house from the fields where I was busy in irrigating the land and just to have a look in my house when armed with sharp-edged weapon. The females of the house were the only persons as described above were present in the house. Reaching my house I found the deceased Muhammad Khan and my elder sister an unmarried lady in a compromising position with the deceased in my house. I lost self-control and under the compulsive impulse according to the values of our social set up and family honour I was driven under the stress of grave and sudden provocation in an uncontrol manner inflicted injuries to the deceased with a weapon already armed my sister escaped in the meanwhile and could not be traced in the darkness of the night. There was no eye-witness present..."
4. Learned counsel for the petitioner submitted that it was an unwitnessed occurrence, that the prosecution had failed to prove its case beyond doubt and in such a backdrop the statement of the petitioner/convict under section 342, Cr.P.C. Has to be believed and it is not a case in which the petitioner could be convicted under section 302(b), P.P.C.
5. Having heard petitioner's learned counsel and having gone through the impugned judgment we are of the view that in a case where the occurrence is admitted and the accused attempts to bring his case within the exceptions, the burden shifts on him to prove the plea, which he has raised.
Article 121 of Qanun-e-Shahadat Order, 1984 would be of relevance, which reads as under:-- "Burden of proving that case of accused comes within exceptions. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him and the Court shall presume the absence of such circumstances."
6. It is petitioner's own case that only females of the house were present when the occurrence took place but neither his sister who allegedly was found in compromising position with the deceased nor the other sister was produced in support of the defence plea. It is in evidence that when the deceased was done to death he was wearing clothes which belies the defence version that he was found in a compromising position. Even otherwise the nature and locale of injuries would suggest that he was fast asleep when he was given hatchet blows. The three injures that the deceased received were as under:-- "(1) An incised wound size 30 c.m. Extending from right side of nose to the back of right ear cutting maxillary bone teeth and mastoid bone, muscles and arteries were cut.
(2) An incised wound size 20 c.m. Extending from front of the neck to outer side of right side of neck cutting trachea, oesophagus, common carotid arteries and other veins of neck and muscles.
(3) An incised wound size 10 x 2 c.m. On the front of upper part of left side of chest 2 c.m. Left clavical. It was muscle deep."
7. If the deceased was awake and was in a compromising position then he would have received injuries on his hands, on his arms as he would have tried to ward up the attack and not on the neck and the chest.
8. In the afore-referred circumstances we find the concurrent judgments unexceptionable. That being so, the petition is dismissed and leave refused.
Leave to .