' TARIQ PARVEZ KHAN, J.---This Criminal Petition is filed against the judgment dated 14-5-2010 delivered by a Division Bench of Lahore High Court, Multan Bench, Multan in Criminal Appeal No, 630 of 2005 (Khaliq Hussain v. The State) and Criminal Appeal No,646 of. 2005 (Muhammad Naeem v. Sadiq Hussain, etc.).
2. Four out of named accused in the F.I.R. Were tried by the learned Sessions Judge, Sahiwal in Sessions Case No,7 of 2005 in case F.I.R. No,476 dated Q-10-2004 registered at Police Station Dera Raheem, Tehsil and District Sahiwal.
3. The case was registered on the complaint of Muhammad Naeem (P.W.5), who made report to Muhammad Iqbal, SI (P.W.11) when he had taken the dead body of his deceased brother Haji Abdul Rasheed to the District Headquarter Hospital, Sahiwal.
4. According to the report made by Muhammad Naeem complainant, occurrence took place at Maghrib waila on 12-10-2004. It was reported by Muhammad Naeem complainant that he along with his brother deceased Haji Abdul Rasheed, Qamar Javed, Muhammad Nasir and Ghulam Mustafa (P.Ws) have constructed their houses in Madina Colony. He and his brother Qamar Javed have jointly purchased five marla plot which was lying vacant and in the said vacant plot they were cultivating vegetables. One day prior to the occurrence, sons of Akram Bhatti from whom they have purchased the above referred plot destroyed/uprooted the vegetable and made a passage thereon which was objected to by them by making complaint to Akram Bhatti who admitted that his sons have misbehaved and that he will settle the matter. However, on the date of occurrence when at Maghrib waila deceased Haji Abdul Rasheed and Qamar Javed (P.W.) were again cultivating vegetable in the said plot and were busy making furrows, when Khaliq Hussain- petitioner, armed with a knife (Churri), Sadiq Hussain, armed with hatchet; Abid Hussain, armed with a stick (Sota), while Javed and Abdul Rehman, other co-accused, armed with hatchet and stick (Sota), respectively, came to the spot; Khaliq Hussain petitioner raised lalkara while stating that they will be taught lesson, inflicted Churri blows to Haji Abdul Rasheed, which landed on his left leg; when Qamar Javed (P.W.) went forward to rescue Haji Abdul Rasheed, Sadiq Hussain and Javed accused inflicted hatchet blows on the person of Qamar Javed followed by giving blows by remaining co-accused named above. According to the report Haji Abdul Rasheed succumbed to the injuries while Qamar Javed was shifted to the hospital for medical treatment.
5. As stated above four accused persons were put to trial and vide judgment dated 30-9-2005, the learned Trial Judge acquitted Sadiq Hussain, Javed-ur-Rehman and Abid Hussain whereas present petitioner Khaliq Hussain was awarded sentence of death under section 302(b), P.P.C. With further direction to pay Rs,100,(X)0 (one lac) as compensation to the legal heirs of the deceased and in default to suffer six months' R.I.
6. Being not satisfied from the judgment of conviction/sentence, the petitioner preferred appeal before the Lahore High Court, Multan Bench, Multan, whereas Muhammad Naeem complainant filed appeal against acquittal of accused Sadiq Hussain and others.
7. The two Criminal Appeals, one against conviction/sentence and the other against acquittal, were heard along with Murder Reference No,761 of 2005 and decided on 14-5-2010 whereby acquittal was maintained, however, Criminal Appeal No, 646 of 2005 was dismissed while the Criminal Appeal No, 630 of 2005 filed by Khaliq Hussain present petitioner was partially allowed as his conviction was maintained but sentence awarded to him was altered to life imprisonment with benefit of section 382-B, Cr.P.C.
8. Still not satisfied the convict/petitioner has preferred this petition for leave to appeal.
9. Learned counsel appearing for the petitioner argued that complainant Muhammad Naeem was not present at the spot as he was not giving company to the deceased Haji Abdul Rasheed and Qamar Javed when they were making furrows for cultivating vegetables. According to the learned counsel the complainant party has suppressed its role of attacking the present petitioner and has not given the actual manner of the occurrence but has twisted the facts in the manner suitable to the prosecution case.
10. Learned counsel further argued that same evidence has been disbelieved against three of the co-accused of the petitioner who were also given the role of causing injuries to the deceased Haji Abdul Rasheed and Qamar Javed (P.W.), therefore, their testimony against the present petitioner cannot be relied upon unless there was sufficient independent corroborative evidence in support of charge against the petitioner.
11. After having argued the case on merits, learned counsel made an alternative submission regarding quantum of sentence and the conviction recorded under section 302(b), P.P.C. His argument was that in view of plea set up by the accused/petitioner during the course of cross- examination of the two eye-witnesses and as stated by him in his statement under section 342, Cr.P.C. Case would fall within the purview of section 302(c), P.P.C.
12. Learned Additional Prosecutor-General is not at all in agreement with the learned counsel for the petitioner who stated that charge against the convict stands fully proved because presence of Qamar Javed (P.W.) cannot be denied, who was having sharp-edged as well as blunt weapon injuries on his person. He argued that role of the present petitioner was not only distinguishable as per evidence of the prosecution but petitioner/accused has himself admitted his presence and has admitted to have caused injuries to the deceased Haji Abdul Rasheed.
13. We have heard the learned counsel for the parties and have also gone through the evidence carefully.
14. As far as argument regarding disbelieving the evidence of two eye-witnesses by the learned Trial Court to the extent of Abid Hussain, Sadiq Hussain and Javed-ur-Rehman is concerned, the same is not of any help to the petitioner because fatal injury at the leg of the deceased Haji Abdul Rasheed has been attributed to him. Not only that, the prosecution evidence is consistent against the petitioner, but petitioner has himself admitted his presence at the spot and has also admitted to have caused sharp weapon injuries on the person of the deceased Haji Abdul Rasheed while stating that he was attacked upon and that he caused injures to the deceased while exercising his right of self-defence.
15. Since in this case petitioner in his statement under section 342, Cr.P.C. Has admitted his presence while stating that he caused injuries on the person of the deceased when he was himself under attack, his presence on his own admission stands proved.
16. We will discuss the relevancy and the evidentiary value of the plea taken by the accused in his statement under section 342, Cr.P.C. At little later but presently if we look at the statements of Qamar Javed (P.W.4) and Muhammad Naeem complainant (P.W.5), they both are totally disinterested witnesses because there is no previous enmity or animosity of these witnesses with the petitioner. The presence of Qamar Javed could not be disputed or denied for the reason that he was carrying stamp of injuries on his person. These two eye-witnesses are consistent in their charge against the present petitioner by attributing him specific role of causing injuries to deceased Haji Abdul Rasheed. Their testimonies have further been corroborated by report of the Chemical Examiner (Exh. PU) in respect of the Churn recovered at the instance of Khaliq Hussain petitioner and the report of the Serologist (Exh.PV) in respect of the origin of the blood on the Churri, which confirmed that it was stained with human blood.
17. The petitioner was arrested on 10-11-2004 i,e, after one month of the occurrence, which disappearance has not been properly explained at the trial.
18. Now coming towards the plea set up by the accused/petitioner that on the day of occurrence he was on his way to his house after doing some Zimindari work when he saw deceased Haji Abdul Rasheed demolishing/destroying the passage owned by him to which he objected, which followed exchange of hot words and thereafter Haji Abdul Rasheed assaulted at him with vholi (an instrument of harvesting) and in order to avoid vohli blows he got hold of the vohli and inflicted toki blows at the person of the deceased which he was already carrying for his Zimindari work, which blows were given in exercise of right of private defence. He further stated that none of the witnesses or any of his co-accused were present at the time when he was assaulted. While explaining injuries of Qamar Javed (P.W.), accused/petitioner pleaded that on having learnt about injuries of Haji Abdul Rasheed, Qamar Javed armed with hatchet came to the house of the petitioner and wanted to attack but the door was chained from inside and that the lady- occupants of the house resorted to batting bricks and as a result of such bricks batting Qamar Javed was hit and got injured.
19. The plea of the accused which is briefly given above remained a plea without any support from evidence. No lady from the house was produced in defence to corroborate the version of the accused petitioner regarding injuries caused to Qamar Javed (P.W.). Plea of the petitioner is that at the time of occurrence it was only him and deceased, therefore, if he could not produce any witness in support of his plea, he should have examined himself by appearing under section 340(2), Cr.P.C. On oath to support his defence plea.
20. Here the defence plea of the petitioner appears to be unreasonable as belatedly setup during the trial because he had made no report in respect of assault made on him, if any, and since he had not appeared under section 340(2), Cr.P.C. On oath and no inmate of the house examined to explain the injures of Qamar Javed (P.W.) was examined, the defence plea will hold no ground to be believed as against prosecution evidence.
21. Since we have held hereinabove that two eye-witnesses have given straightforward narrations of occurrence; their testimonies are supported by the medical evidence and by other corroborative piece of evidence including the motive; the accused/petitioner himself admitted his presence and also that he has caused injuries on the person of the deceased; and that the plea taken by him of self defence has been held unreasonable and unsupported, there is no substance to convert his conviction from sections 302(b) to 302 (c), P.P.C.
' For the foregoing reasons, we see no substance in this petition as such the same is dismissed and leave declined.