' ABDUL HAMEED DOGAR, J.-This petition for leave to appeal arises out of judgment dated 28-5-2002 passed by a learned Division Bench of the Lahore High Court, Lahore, in Criminal Appeal No,1152 of 2000 whereby conviction and sentence of death recorded by the trial Court under section 302(a), P.P.0 to the petitioner was maintained with compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of failure, he was directed to suffer S,I. For six months more.
2. Briefly stated, the facts are that on 8-5-1999 at about 10-45 A.M. While complainant Mst. Manzoor Bibi (P.W.-5), her son deceased Muhammad Zarif, Ghulam Abbas son of Ghulam Qasim, Irfan son of Ghulam Haider were going to village Tarag from Madad Wala on a tractor which was being driven by Irfan and when they reached at a distance of 1-1/2 kilometres from village Tarag, a red colour car driven by, an unknown person came in front of them. Petitioner Abdul Wahid, so -in-law of complainant, armed with Kalashnikov alighted from it and chaIlenged Muhammad Zarif that he will not be spared today and would be taught a lesson for not giving the share of his land.
Muhammad Zarif de eased alighted from the tractor whereupon the petitioner fired a shot upon him which did not hit him. Thereafter, he fired a second shot striking king on left side of pelvic bone i.e, upper portion of left thigh. They brought Muhammad Zarif in injured condition to Civil Hospital, Isakhel, for treatment but he breathed his last.
3. Motive behind the occurrence was stated to be a dispute over the landed property. The complainant and mother of the petitioner being real sisters inherited the property jointly. On the day of incident, in the morning hours, petitioner and deceased had exchanged hot words over th partition of the land and the deceased gave beating to the petitioner. It was because of that reason, the deceased was done to death.
4. On 8-5-1999 at 6-00 p.m., Dr. Muhibur Rehman, Ho pital, Isakhel (P.W.-3) conducted post- mortem examination on the dead body of Muhammad Zarif and found the following injuries on his person:
(i) A fire-arm wound of entry 3 cm x 1.5 cm in the left mid inguinal region, .7 cm away from anterior superior iliac spine. There was burning around the wound, margins with corresponding holes in Shalwar, Qamiz and Bunyan.
(ii) A fire-arm wound of exit 0.5 cm x 0.5 cm over the left buttock in the upper quadrant, 25 cm away from the anterior superior iliac spine and 2 cm in the lateral side of anal cleft.
(iii) A laceration 3 cm x 2 cm on the extensor side of left forearm 5 cm below the left elbow-joint.
(iv) An old surgical wound scar 17 cm in the left renal area."
5. At the trial, the prosecution examined Anar Khan (P. W.1), Sardar Khan (P.W.2), Dr.Muhibur Rehman (P.W.-3), Faiz Hamid (P.W.4), Mst. Manzoor Bibi (P.W.5); Irfan Khan (P.W.6), Muhammad Amir (P.W.7), Muhammad Mumtaz (P.W.8), Muhammad Ishaq (P.W.9) an Ahmad Yar, S.-I. (P.W.-10).
' For better appreciation of the case, it would be appropriate to reproduce the reply to Q. No,4 of the petitioner from his statement under section 342, Cr.P.C.: ' "Ghulam Abbas and Manzoor Bibi P.Ws. Were not present at the spot. Occurrence had taken place in the way and not in the manner stated by the prosecution. The actual facts are that on 7-5-1999 I took a short leave from Multan Cantt. Where I was serving. I started from Multan at 4-00 p.m. On 7- 5-1999 and reached my village at 10 a.m. In the morning. After breakfast my wife told me that child is not properly urinating; therefore, let us perform circumcion ceremony of the child and she asked me to fetch her mother P.W. And her brother deceased from village Madad Wala. I took my licensed gun for my safety because that area is full of Gundas and proclaimed offenders. I reached Tarag by a public transport and from Tarag I obtained a taxi car. While I was going toward the village Madad Wala at the place of occurrence, the deceased and P.W. Irfan who were riding a tractor met me. I stopped my car and the P.W. Irfan stopped his tractor. I got down the car and the P.W. Irian and the deceased both got down from the tractor. The deceased asked me as to where I was going. I told him that I am going to fetch you and your mother for circumcion ceremony of the child. At this, the deceased replied in a taunting manner that you people are not going to give your sister to him and you are going to fetch his mother. I replied that I being your sister's husband he should behave in a proper manner. The deceased who was rashed type of person, started abusing me, and told me that he would teach a lesson for not giving him the hand of my sister. I again reprimanded him and asked him to behave, at this, the deceased told Irfan P.W. That they should teach me a lesson and they forwarded, advanced towards me and grappled with me. During this scuffle, the deceased snatched my Safa and gave a first blow. I got myself separated and fired in the air to scare away the deceased, but the deceased again grappled with me and during this, the gun went off hitting the deceased on his leg. I never wanted to murder him. The deceased after receiving injury sat down and because of timely fear I came back to my village and then went to the Cantt."
7. He neither examined himself on oath under section 340(2), Cr.P.C. Nor produced any evidence in defence. He, however, was found guilty of the charges and was convicted and sentenced by the trial Court as stated above.
8. Criminal appeal before the Lahore High Court failed, hence this petition for leave to appeal.
9. We have heard Mr. Awan Muhammad Hanif Khan, learned ASC for the petitioner and have gone through the record and the proceedings of the case in minute particulars.
10. At the very outset, learned ASC for the petitioner contended that he will not challenge the merits of the case but would advance arguments only on the quantum of sentence. To substantiate the same, he mainly stressed upon the plea of acting in self-defence raised by the petitioner during the trial and the appellate stage which, according to him, was not acceded to by the forums below being a sufficient mitigating circumstance to reduce the sentence from death to imprisonment for life. He further emphasised that though the petitioner has admitted the incident yet the factor that he caused fire-arm shot at the thigh of the deceased, a non-vital part of the body, thus had no intention to commit the murder, was an additional ground to be taken as a extenuating circumstance to alter the sentence.
11. We are not inclined to agree with the contentions of the petitioner's counsel mainly, for the reason that the petitioner in his statement under section 342, Cr.P.C. In unequivocal term has admitted the incident. He does not deserve any leniency in the sentence as there happened no occasion for him to act in self-defence, particularly when none from the side of the complainant including the deceased was armed with any lethal weapon creating an apprehension in his mind that he would be killed or inflicted a grievous hurt in case not retaliated. Where a plea of exercise of right of self-defence has been specifically raised, then the burden to prove the same lies upon the accused. In view of the provisions of Article 121 of Qanun-e-Shahadat, 1984, it becomes incumbent upon the accused to prove that his case is attracted by any of the exceptions of section 100, P.P.C.
12. Admittedly, petitioner has not been able to bring on record any evidence to substantiate his stance excepting his own words. As against it, the prosecution has successfully established its case beyond any shadow of doubt. Eye-witness account of the incident furnished at the trial has been fully corroborated by medical evidence, motive, dying declaration of the deceased, recovery of indiscriminating articles and the report of Fire-Arm Expert. The next submission also does not appeal'to the mind to be worth considerable as the incident o., the face of it seems to be a premeditated one. On the fateful day a quarrel had taken place in between the petitioner and deceased in the morning over the share of land which culminated into fateful episode. It was at about 10-45 a.m. The petitioner armed with rifle attempted at the life of deceased by firing the first shot which missed and thereafter repeated another shot which hit him and resulted into his death.
Thus, it cannot be termed to be a case of sudden fight.
13. It is well-settled principle of law that in criminal cases initial burden to prove the guilt against the accused lies upon the prosecution but when a specific plea has been raised by the accused in defence then both are to be taken into consideration in its juxtaposition. In such circumstances, the view which is nearer to the truth is to be given weight. Considering the case of the appellant on such touchstone, we are of the considered opinion that the version of the prosecution is true and has been rightly believed by the trial Court as well as the Appellate Court. Petitioner has failed to show even a single mitigating circumstance on record to consider his reduction in the sentence.
Inadvertently, both the Courts below have recorded the conviction under section 302 (a), P.P.C.
Which. Is the punishment of Qatal-e-Amd punishable with death as Qisas, which provisions, in our view, would not apply to this case, but the case of the petitioner would fall under Tazir punishable under section 302(b), P.P.C. Accordingly, while maintaining the conviction under section 302(b), P.P.C. The sentence of death is also maintained.
14. Accordingly, finding no merit in the petition, while maintaining the impugned judgment, the same is dismissed and leave to appeal refused.