ABDUL HAMEED DOGAR, J.---This Jail Petition seeking leave to appeal is directed against the judgment dated 3-9-1998 passed by learned Division Bench of the Lahore High Court, Lahore whereby Criminal Appeal No,435 of 1992 filed by the petitioner was dismissed and his sentence of death was maintained.
2. Briefly, stated, the case of prosecution. Is that on the day of occurrence viz. 7-4-1989 at about 7/8 a.m. Deceased Mazharul Haq tried to irrigate the land from the Tubewell, petitioner Liaqat Ali and others got attracted and diverted the water from their land, which fact was informed to the complainant party by Allah Yar upon which the complainant, deceased Mazharul Haq and nephew Amjad Ali went there and when they reached near wheat crop in Killa No,25 the petitioner Liaqat Ali, . Co-accused Noor Samand and Lal armed with guns accosted them and raised Lalkara that they would not be spared. Petitioner fired two shots which hit deceased Mazharul Haq on different parts of his body. Amjad Ali in order to save Mazharul Haq bowed down who was fired at by Lal Khan on left side of his chest. Co-accused Noor Samand and petitioner also fired at Amjad Ali on his face and head. P.Ws. Hamayun and Bakhtawar were also attracted and witnessed the incident.
Mazharul Haq, and Amjad Ali succumbed to injuries subsequently. Motive behind the incident was that petitioner used to demand water from the deceased Mazharul Haq from his tubewell which was refused by him and it was due to that annoyance he and Amjad Ali were done to death.
3. Petitioner Liaquat Ali was charge-sheeted alongwith co-accused Noor Samand and acquitted accused Lal to face trial. Petitioner and deceased Noor Samand were convicted and sentenced to death whereas Lal was acquitted by the trial Court. Petitioner Liaqat All and Noor Samand filed appeal before the Lahore High Court and during pendency of the appeal Noor Samand expired.
Complainant challenged the acquittal of Lal by way of Criminal Revision No,461 of 1993. The appeal of the' petitioner was dismissed so also became the fate of abovementioned criminal revision.
4. Prosecution in support of its case examined P.W. Abdul Aziz, P.W. Zulfiqar, P.W. Allah Yar, P.W.
Liaqat Ali, P.W. Safdar Ali, P.W. Muhammad Akbar. A.S.-I. P.W. Muhammad Ali, P.W. Dr. Liaquat Ali Khan, P.W. Abdul Majeed, Constable P.W. Bashir Ahmad, P.W. Bakhtawar alias Bakha, P.W. Ghulam Rasool, Constable P.W. Georj Barkat, P.W. Dr. Muhammad Aslam Matti, P.W. Dr. Muhammad Ishfaq and P.W. Farooq Ahmad, Inspector/S.H.O.
5. The ocular account was furnished by complainant Meher Bashir Ahmad, P.W.10 and Bakhtawar P.W.11, P.W.3 Allah Yar acted as Mushirs of recoveries of crime weapons from petitioner Liaquat Ali and co-accused Noor Samand. P.W.7 Muhammad Ali Patwari prepared site plan. P.Ws. Abdul Aziz and Zulfiqar identified the dead bodies of deceased Amjad Ali and Mazhanrl Haq at the time of post-morten examination. I.O. Farooq Ahmad testified the investigations carried by him and deposed to that effect.
6. Dr. Liaquat Ali testified that he noticed eight fire arm injuries on the person of deceased Amjad Ali whereas Dr. Muhammad Ishfaq noted eight penetrating lacerated wounds on the person of deceased Mazharul Haq.
7. Petitioner in his statement under section 342, Cr.P.C. Denied prosecution allegations and pleaded that he has been falsely implicated in the case vindictively. He, however, admitted that he produced gun and its licence at the time of arrest soon after the occurrence. He neither examined himself on oath as required under section 340(2), Cr.P.C. Nor led any evidence in his defence.
8. We have heard Mr. Ainul Haq, learned Advocate Supreme Court on behalf of the petitioner at length and have gone through the record and proceedings of the case in minute particulars.
9., Before us it was argued that the evidence of P.W.10 Bashir Ahmad and P.W.11 Bakhtawar alias Bakha the only eye-witnesses is defective, interested, inimical, unreliable and is not sufficient to form basis of conviction. He contended that the water channel (Khal) was owned by petitioner and his father deceased co-accused Noor Samand and complainant party wanted to irrigate their 7 acres of land obtained by them on lease. On the day of occurrence they, started irrigating their land forcibly which was the background of the incident and the petitioner had a right to defend misuse of their property having the right to defend and thus had committed no offence. In alternative he submitted that at the most the petitioner acted in the right of self-defence and he was entitled to the benefit but this aspect to the case was not considered by the Courts below.
10. Admittedly incident has not been disputed by the defence in this case. The place of incident was also at a considerable distance from the place where breach of water channel was caused. It has been established from the evidence of prosecution placed on record that complainant party had installed a tubewell in their land (Square No,215) for irrigation purpose. They had also obtained 7 acres of land on lease. To irrigate this land from their tubewell complainant party had to utilize a water channel. On the day of incident complainant started irrigating their land but the petitioner blocked the channel and stopped the flow of water. On receiving such information deceased Mazharul Haq and his son Amjad Ali went running empty-handed who were fired at by the petitioner and co-accused and were done to death. At the trial in his cross-examination the petitioner suggested the complainant that the occurrence started at the moment when an altercation took place between the deceased and the petitioner's servants in connection with the irrigation of water through their watercourse and both deceased received injuries at the hands of their servants. This partial admission of the incident also goes against the petitioner. The petitioner cannot get benefit of right of self-defence of his property as it was for the first time he took such plea before the High Court and had never agitated the same during the trial. Since he had not specifically pleaded this plea before the trial Court as such it cannot be considered at this stage at all. Moreover the deceased being unarmed were proceeding to the place where the water was blocked and it was the petitioner's party who were standing fully armed and acted in premeditation and committed their death intentionally. The testimony of the above eye-witnesses is trustworthy, reliable and confidence inspiring and is corroborated by other pieces of evidence such as medical, motive and recoveries. The submissions made by the learned counsel for the petitioner are, therefore, devoid of force.
The upshot of the above discussion is that there being no merit, the Jail Petition is dismissed and leave to appeal is refused.