' ABDUL HAMEED DOGAR, J.---Leave to appeal was granted in this case by this Court to consider the following points:
(1) Whether the guilt of the petitioner has been proved beyond doubt?
(2) Whether the learned trial Court evaluated/appraised the evidence in the correct perspective and in accordance with rules laid down by this Court from time to time for appreciation of evidence in criminal cases?
(3) Whether the Courts have not properly considered the plea of defence and what are the legal implications of the said plea over the guilt of the petitioner?
(4) Whether in the circumstances of the case the penalty of death was the only punishment that could legally be imposed or ends of justice would have met if the sentence of life imprisonment was awarded?
3. The appellants Muhammad Dilbar alias Boota, Khalid Shatique and Khadim Hussain have called in question the judgment dated 9-2-2000 passed by the learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby their Criminal Appeal No,128 of 1997 was dismissed and Murder Reference No,1 of 1998 was accepted, whereas the appeal against acquittal of co- accused Abdul Ghani for the murder of the deceased Muhammad Sarwar was dismissed. But his conviction and sentence for causing injuries to the witnesses were maintained.
4. The facts leading to instant appeal are that on the night of occurrence on 13-11-1994 at about 8/9 p.m., complainant Muhammad Arshad, his father Abdul Ghafoor, his brother Muhammad Sarwar, Sajjad Hussain and sister Mst. Anwar Bibi were present in their Dera situated at their land. Since on the said night the complainant had the turn of water, as such at about 9-00 p.m., he went to get the share of his water at the Nakka but found his uncle, acquitted accused Abdul Ghani, armed with Kassi, his sons i.e, appellants Muhammad Dilbar alias Muhammad Boota with hatchet, Khalid Hussain with Kassi and Khadim Hussain with sickle present at the Nakka of the watercourse, who proclaimed that they would teach him a lesson for getting the water that day, upon which he replied that it was his turn of water as such he will have the same definitely. This infuriated Abdul Ghani who inflicted him repeated Kassi blows hitting on his head and others parts of the body. On the hue and cry of the complainant, his father Abdul Ghafoor, his brother Muhammad Sarwar deceased, Sajjad Hussain and sister Mst. Anwar Bibi came running to rescue him. In the meanwhile P. Ws. Muhammad Arshad and Muhammad Saleem son of Bhola also got attracted at the spot.
Within their sight, appellant Muhammad Dilbar alias Muhammad Boota inflicted hatchet blow to Muhammad Sarwar which hit on his head. Appellant Khadim Hussain inflicted a sickle blow which also hit the head of deceased Muhammad Sarwar. Appellant Khalid Shafique also inflicted Kassi blows on the middle of the head and other parts of the body of deceased Muhammad Sarwar who fell down and succumbed to the injuries. Abdul Ghani caused Kassi blows on the head and other parts of the injured Abdul Ghafoor whereas appellant Muhammad Dilbar alias Boota inflicted hatchet blows on the head and back of injured Sajjad Hussain. Mst. Anwar Bibi intervened but she was not spared and appellant Khadim Hussain inflicted blows with sickle on her head and right upper hip.
5. Motive alleged iii the F.I.R. Is that there existed a dispute about the distribution of land between the complainant and the appellants party.
6. After the registration of case under section 302/34, P.P.C., P.W. Muhammad Safdar, S.-I./S.H.O., Police Station Faqirwali took up the investigation and on 23-11-1994, arrested accused Abdul Ghani and his sons, namely, the appellants. On 24-12-1994, Abdul Ghani while in police custody led to the recovery of a Kassi whereas appellant Khalid Shafique led to the recovery of blood-stained Kassi from his house. Similarly appellant Muhammad Dilbar alias Boota produced blood-stained hatchet from the Ahata of his house, and lastly, appellant Khadim Hussain led to the recovery of a sickle from his house.
7. Dr. Fayyaz Anwar, P.W., noticed seven incised wounds on different parts of the dead body mostly on the head. On the same day, he examined injured Mst. Anwar Bibi, Abdul Ghafoor and Muhammad Arshad and found incised wounds on their persons.
8. After completion of the investigation appellants were sent up to face trial. They denied the charge, pleaded not guilty and claimed trial. In order to prove its case prosecution examined as many as ten witnesses.
9. Ocular account was furnished by complainant Muhammad Arshad and injured P.W. Mst. Anwar Bibi. Chemical Examiner's Reports in positive with regard to the abovementioned articles were produced by the Prosecutor in evidence
10. The appellants in their respective statements under section 342, Cr.P.C. Raised the plea of exercise of right of self-defence and stated as under respectively: ' "I am innocent. Actually on the day of occurrence it was dark night. First of all according to turn of water we bring water to irrigate our land. Akbar Ali is my real uncle. He is of unsound mind, so his land was distributed between my father Abdul Ghani (my co-accused) and my real uncle Abdul Ghafoor into equal share. Our turn starts at evening time even we have not completed our own turn of water when the complainant party came at the spot and tried to stop the water from our own turn. At this we tried to stop them. Even our turn was left 1 hour and 15 minutes of our share. The complainant has abused my father, my co-accused and tried to cut water forcibly. On intervention of my father (my co-accused), he gave the injuries with blunt side of his Kassi. At that time on the hue and cry of my father (my co-accused), Khalid Shafique (my co-accused) came at the spot who was watering the fields, when reached the spot, the complainant party was beating my father Abdul Ghani and was diverting our water to their land. At this, my co-accused Shafique intervened to protect our turn of water and life of my father Abdul Ghani. At this the complainant party also attacked on my co-accued Khalid Shafique. So, at his, when there was no alternative then my co- accused Shafique also to save our turn of water and his own life and life of my father Abdul Ghani, also gave injuries to the complainant party. I was not present at the spot. My co-accused Khadim Hussain who has gone on the round of watercourse when he reached at the spot and he has also been the complainant party not only causing injuries to my co-accused and further there was cutting of our water also. So, he also (Khalid Shafique my co-accused) intervened to protect life of my father Abdul Ghani and our turn of water. He also gave injuries to the complainant party in the right of his private defence of his person as well as his turn of water. He was not armed with any Dattar which is a fabricated allegation. Furthermore, there was no previous enmity between the complainant party and us. Actually this occurrence has taken place on the attack of complainant party. The night was dark. So, in this way, my co-accused Khalid Shafique was also arrested from the spot in injured condition but due to the influence of complainant party and political pressure police has not recorded our version. Furthermore, the police has not even examined my father Abdul Ghani and Khaliq Shafiq my co-accused by the doctor, although my father and Khalid Shafiq my co-accused were injured, their arrest was shown malafidely late when their injuries were healed. Due to influence of complainant party because their son-in-law Muhammad Shafi is very influential person from the complainant side, he managed all these things and we are the poor people. For this reason, the police not recorded our version and even challaned us at the instigation of complainant party. So, Mst. Anwar Bibi was also receiving injuries when she intervening in the scuffle, because it was dark night, so we cannot say with certainty from where Mst. Anwar Bibi received injuries by the complainmt party or the accused party. Complainant party was present at the Dera with pre-planned Scheme."
' They, however, neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any defence.
11. Trial Court vide judgment dated 16-12-1997 convicted the appellants under section 302/34, P.P.C.
For causing Qati-i-Amd and sentenced them to death with a fine of Rs,25,000 each or in default whereof to undergo further R.I. For six month each. A reference for confirmation or otherwise of the death sentence was also forwarded to the learned Lahore High Court. Appellant Khadim Hussain was also separately convicted under sections 337-A(ii) and 337-F(i), P.P.C. For causing injuries to Mst. Anwar Bibi and sentenced to pay Arsh of Rs,8,000 with one year R.I., as Ta'zir in default to undergo S.I. For three months. He was also convicted under section 337-F(i) and sentenced to suffer R.I. For six months as Tazir and to pay Daman of Rs,2,000 or in lieu thereof to undergo S.I. For three months.
12. On appeal, learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, maintained the conviction and sentence of the appellants and accepted the Murder Reference.
13. We have heard Sardar Muhammad Ghazi, learned Advocate Supreme Court for the appellants, whereas M/s. Malik Muhammad Nawaz and M. Zaman Bhatti, learned Advocates Supreme Court addressed this Court for complainant and the State respectively.
14. At the very outset learned counsel for the appellants did not challenge the conviction but pleaded for reduction of sentence. According to him, Courts below have not considered the evidence in its proper prospective and have failed= to appreciate and appraise the plea of right of self-defence specifically agitated by the appellants but on the contrary convicted and sentenced them on extraneous circumstances. He emphasized that the incident occurred all of a sudden over the rotation of water and it was the Complainant party who initiated the incident and caused injuries to acquitted accused Abdul Ghani and appellant Khalid Shafique. Resultantly, appellants acted in exercise of right of their self-defence and inflicted injuries to the complainant party, therefore, they deserve leniency in the sentence. According to him, due to the influence of the complainant party, neither the cross-case of the appellants was registered nor said Abdul Ghani and appellant Khalid Shafique were got medically examined.
15. On the other hand, M/s. Malik Muhammad Nawaz and M. Zaman Bhatti, vehemently controverted the submissions of the appellants' counsel and argued that the judgments of both the Courts below are well-reasoned leaving no room for reconsideration. It is established on record that the appellants with common intention not only brutally killed Muhammad Sarwar but also caused serious injuries to the P.Ws. Namely, Mst. Anwar Bibi, Muhammad Arshad, Abdul Ghafoor and Sajjad Hussain, as such they do not deserve any leniency in the sentence. According to them, ocular evidence is fully corroborated by the medical evidence, evidence of recovery of the crime weapons and also the reports of the Serologist.
16. Since the appellants have not challenged the conviction on merits but have only urged for reduction of sentence as such in order to arrive at a proper conclusion, we will have to examine the version of the appellants keeping the same in juxtaposition to the case of the prosecution.
17. Mere assertion that it was the complainant party who first attacked them and caused injuries to accused Abdul Ghani and appellant Khalid Shafique in the absence of any medical report to such effect, would be of no avail to them. In fact, if they had received injuries, in the incident, it was on their part that they should have disclosed the same to the Magistrate at the time of remand and asked for medical examination and certificate. By not agitating so before any of the concerned authorities, it stood established on record that they were probably not injured at all and raised a false plea. Irrespective of the above, it has been brought on the record that the complainant party and the appellant party had a joint Khata of the disputed land which was not yet partitioned. In such circumstances, they too were not justified to act in the exercise of right of self-defence of their property. The right of private defence of body or property would extend only when a clear danger to person or property becomes imminent. In the instant case, the number and nature of the injuries received by the complainant party suggest that they were the victims of the murderous assault.
There is nothing on record that anyone from the complainant side was armed with lethal, weapon just to create an apprehension in the mind of the appellants that they would be attacked and there was no option for them but to act in self-defence. When a specific plea of right of self-defence is raised, the onus to prove such plea lies upon the party claiming the same which in the case in hand, the appellants have miserably failed to do.
18. The brutal and atrocious manner in which the appellants killed deceased Muhammad Sarwar and caused severe injuries to the abovementioned P.Ws. Does not call for any leniency in the sentence. Moreover, the learned trial Court as well as the learned Lahore High Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration.
19. For the foregoing reasons, there is no good reason to interfere with the concurrent findings of the Courts below. Accordingly, the impugned judgment is maintained and the .