ABDUL HAMEED DOGAR, J.--This appeal by leave of this Court is directed against the judgment dated 24-9-1997 passed by a learned Division Bench of the Lahore High Court, Multan Bench, in Criminal Appeal No,307 of 1993 and Murder Reference 289 of 1993 whereby the appeal of the appellant-Farid was dismissed and murder reference was confirmed.
2. This Court granted leave to appeal to consider the quantum of sentence in the light of the facts and circumstances of the case.
3. The facts, as per case of the prosecution briefly are that on 29-4-1992 at 7-00 a.m. Complainant Sardara P.W. Alongwith Azam, Muhammad Sharif, Abdul Aziz, Farid, Yara P.Ws., Farzand Ali deceased and Ahmad Khan went as Punchait for conciliation of a dispute of land measuring about 10 acres situated in Chak No,99/D which was jointly allotted to said Azam and his late brother Mozam. When they reached at the Dhari of Farid son of late Mozam located in Khasra No,7, Square No,23, Fazil, Shaman, Hussain, Nazeer, Yousaf and Muhammad Bakhsh with Sotas, Hanif, Ghulam alias Ghoma, Farid appellant, Muhammad Ali with rifle 7 MM, Allah Ditta, Manzoor and Zahoor with gun .12 bore, emerged out of bunkers. Appellant-Farid and accused-Fazil raised ' Lalkara' that enemies had come and would not be spared today whereupon Hanif fired a rifle shot at deceased Farzand Ali which hit on his chest under the neck who turned back but was also fired at by Ghulam alias Ghoma with 7 MM rifle which too hit him on his back side and succumbed to the injuries. Thereafter appellant-Farid fired 'from his 7 MM Rifle at Abdul Aziz on his right temporal region. Allah Ditta also fired with his .12 bore gun which hit on his right side of the head who also fell down on the ground and expired at the spot. Accused-Manzoor fired a gun shot on the face of injured Yara whereas accused-Muhammad Ali also fired from his rifle at him which hit on his right 'Khulha'. Accused- Zahoor fired two successive gun shots with his 12 bore gun which hit P.W. Azam on his both legs and thigh. The matter was reported by the complainant-Sardara and F.I.R. Was lodged at Police Station Malka Hans, District Pakpattan Sharif.
4. The motive behind the occurrence as stated in the F.I.R. Was that Azam had been demanding share of lot from his nephews Farid etc. But they refused to give their share.
5. At the trial, the prosecution examined as many as 16 witnesses.
6. Dr. Faqir Ahmad. (P.W.4) conducted autopsy on the dead bodies of deceased Farzand Ali and Abdul Azii whereas Dr. Sajjad Latif (P.W.9) medically examined injured, namely, Azam (P.W .7) and Muhammad Yar (P.W.10).
7. The appellant in his statement under section 342, Cr.P.C. Admitted the incident and took the plea as under: "The P.Ws. Have made false statements. The disputed land is in our exclusive possession since long.
The complainant party in order to take forcible possession from us of the disputed land launched an attack while armed with fire-arm. In the exercise of right of self-defence of person and property my servant resisted the attack of complainant party."
8. The remaining accused in their respective statements not only denied the case of prosecution, but also pleaded innocence and false implication due to party faction.
8-A. On the conclusion of the trial, the learned trial Court acquitted Fazil, Hussain, Shaman, Naseer, Manzoor, Ghulam alias Ghoma, Yousaf, Muhammad Ali, Hanif and Muhammad Bakhsh from all charges, whereas convicted appellant-Farid and co-accused Allah Ditta under section 302/34, P.P.C. For the murder of Abdul Aziz deceased and sentenced them to death with a fine of Rs,20,000 each or in default whereof to further undergo R.I. For two years. Zahoor co-accused was convicted under section 302/34, P.P.C. And sentenced to imprisonment for life with a fine of Rs,10,000 or in default whereof to further undergo for one year R.I. However, while giving the benefit of doubt, the appellant and his two aforesaid co-accused were acquitted from the charges under section 302/34, P.P.C. For murdering Farzand deceased. The appellant and two co-accused were also convicted under section 324(2)/34, P.P.C. For causing injury to Azam P.W. And were sentenced to suffer two years' R.I. With a fine of Rs,5,000 each or in default whereof to further undergo R.I. For six month:5. They, however, were acquitted from the charges for causing murderous assault on P.W.
Yara. The learned trial Court at the same time forwarded the reference for confirmation of death penalty awarded to appellant-Farid and accused-Allah Ditta.
9. In appeal the learned Division Bench of the Lahore High Court, Multan Bench, maintained the conviction and sentence of death in respect of the appellant-Farid and confirmed his death sentence whereas partly accepted the appeal of the co-accused Allah Ditta and acquitted him from the charges under section 302/34, P.P.C. Whereas maintained the conviction and sentence under section 324/34.
10. We have heard Mr. Zafar Iqbal Chaudhry, learned Advocate Supreme Court for the appellant, Ch. Muhammad Ikram, learned Advocate Supreme Court on behalf of the State and have gone through the recorded proceedings in minute particular.
11. On the quantum of sentence, Mr.Zafar Iqbal Chaudhry, learned Advocate Supreme Court for the appellant mainly stressed that the learned trial Court as well as the learned High Court have not properly appreciated the evidence adduced at the trial and have committed legal error while convicting and sentencing the appellant-Farid. According to him the appellant had from the start of the trial been agitating that he had been in possession of the disputed land and a decree was also passed in his favour on 20-11-1977 which fact was not denied by the complainant party. It was the complainant party who aggressed upon and attempted to dispossess the appellant from the disputed land early in the morning on the date of incident and the appellant finding danger to the possession of his property exercised the right of self-defence which resulted in the unfortunate occurrence. He next contended that the fact that the recovery of about 87 empties of 17 MM and 201 of .12 bore gun from the spot when according to the prosecution case only eight shots were fired from the appellant side, is sufficient to gather in the circumstances that the firing was also made from the complainant party and appellant party acted in its self-defence. According to him this further lends support from the opinion of the five Investigating Officers including the D.S.P. That the complainant party was aggressor which fact admittedly had not been adverted to by the two Courts below while awarding the death sentence to the appellant. He lastly argued that on the same evidence all the other accused have been acquitted while extending them benefit of doubt, the case of the appellant being at par should also had been extended the same benefit because of the above mitigating circumstances, the appellant is entitled to the lesser punishment.
12. On the other hand Ch. Muhammad Ikram, learned Advocate Supreme Court vehemently controverted the above contentions and argued that from the entire case of the prosecution, it is crystal clear that the complainant party was empty-handed and it was the appellant party who launched attack with deadly weapons upon them and caused the death of the two deceased, namely, Abdul Aziz and Farzand Ali and seriously injured P.Ws. Yara and Azam. Had the complainant party been armed with any lethal weapon, they would not have spared the appellant party and would have caused at least some damage to them. Non-presence of even a single scratch on the person of any of them negates the version that the complainant party was aggressor. According to him, the role attributed to the appellant is corroborated by the medical evidence and as such he does not deserve any leniency in the sentence.
13. It is by now a well-settled principle of law that where an accused raises plea of self-defence, of his person or property and wants to bring his case within the ambit of any of the exceptions of section 100, P.P.C. Then onus to prove the same lies upon him. Even according to Article 121 of the Qanun-e-Shahadat Order, 1984, the burden to prove the existence of circumstances bringing the case within any of general exception in Pakistan Penal Code, or within any special exception or proviso contained in any other part of the same Code or any law defining the offence lies upon the accused. Since the appellant in the instant case has pleaded the case to be of two versions, one put forth by him and other by the prosecution, the doctrine of juxtaposition would be applicable.
The right of self-defence of the property or person would become imminent and would remain available to the accused as long as danger to his property or person existed, Admittedly, the appellant has miserably failed to bring on record that the complainant party was armed with deadly weapons such as fire-arm, knife or even a stick or that they acted in such a manner which could raise any reason to believe that the appellant party was being attacked and they were left with no option but to retaliate in self-defence. The plea that the complainant-Sardara, Abdul Aziz and Farzand Ali deceased all unarmed, attempted to assault the appellant party who were equipped with deadly weapons like 7 MM, .12 bore guns and Sotas, does not appeal to a prudent mind to be true and trustworthy. If the complainant party had any intention to attack they would have come armed and had at least caused some injuries to the appellant side. Non-mention of even a small scratch on anyone from the appellant side, falsify their version of having acted in the right of self-defence of their property. Irrespective of the above, the appellant has failed to establish that the complainant party played any overt act to dispossess the appellant from the land.
14. When both versions are examined in juxtaposition the version put forth by the prosecution see ns to be trustworthy, based on unimpeachable and tangible evidence whereas one set up by the appellant does not appeal to be convincing and true as he has not only failed to prove his version of right of self-defence but even in his own defence in his statement uncle section 342, Cr.P.C. He had taken a divergent version by admitting the incident and pleading that the attack was launched upon the complainant party by his servant in the right of self-defence. C.W.2 Masood Iqbal, D.S.P. Saddar, during cross-examination had also admitted that he had not taken down any evidence to find that who was the assailant party and according to his investigation, deceased Frazand Ali and Abdul Aziz were fired at by the aggressor party. Similarly, C.W.4 Mirza Qasim Baig, D.S.P., Special Branch had stated before the learned trial Court that as a result of his investigation, he found appellant Farid and acquitted accused Allah Ditta, Muhammad Bakhsh, and Zahoor involved in the case.
15. Since leave to appeal was granted only on the question of sentence and the learned counsel for the appellant advanced only one contention that the appellant had acted in the right of self- defence which he has failed to establish, therefore, the appellant does not deserve any leniency in the sentence.
16. From what has been discussed above, we do not find any mitigating circumstance to commute the death sentence, a legal and appropriate sentence F awarded by the trial Court and confirmed by the High Court. The same is upheld and criminal appeal is accordingly dismissed.