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Petitioner: SHER AHMAD VS Respondent: STATE
1988 S C M R 591
1988 S C M R 591
Present: Aslam Riaz Hussain, Abdul Kadir Sheikh, Javid Iqbal and Saad Saood Jan, JJ
SHER AHMAD--Appellant
versus
THE STATE Respondent
Criminal Appeal No.50 of 1985; decided on 9th February, 1988.
(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench, dated 26th November, 1984 passed in Criminal Appeal No. 80 of 1983/Murder Reference No. 96 of 1983).
(a) Penal Code (XLV of 1860)--
---Ss.302 & 307 read with S.34--Leave to appeal--Sentence--Leave to appeal granted only to consider question of sentence.
(b) Penal Code (XLV of 1860)
--Ss.302 & 307--Sentence--Case of prosecution that although litigation had taken place liver ruptured--Sentence of death awarded to accused, held, was quite proper and well-deserved--Impugned judgment of High Court called for no interference--Appeal dismissed.
Sardar Muhammad Ishaq Khan, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.
Raja Abdul Ghafoor, Advocate Supreme Court instructed by Rao Muhammad Yousuf Khan, Advocate-on-Record for the State.
Date of hearing: 9th February, 1988.
JUDGMENT
JAVID IQBAL, J.--The appellant Sher Ahmad alongwith his brother Mohammad Afsar was tried by the Additional Sessions Judge Attock for offences under section 302/307/34, P.P.C. and vide his judgment dated 25th May, 1983 both of them were convicted under section 302/34, P.P.C. for causing the murder of Shaukat Hayat deceased and under section 307/34, P.P.C. for making murderous assault on Mohammad Afsar son of Wazir Khan P.W. brother of the deceased. Sher Ahmad appellant was sentenced -to death plus fine whereas Mohammad Afsar was sentenced to imprisonment for life plus fine under section 302/34, P.P.C. Both of them were further sentenced to one year's R.I. each under section 307/34, P.P.C. On appeal the Lahore High Court Rawalpindi Bench Rawalpindi vide its judgment dated 26th November, 1984 maintained the conviction and sentence awarded to Sher Ahmad appellant under section 302 P.P.C. but acquitted him from the charge under section 307/34, P.P.C. So far as his brother Mohammad Afsar is concerned, he was given the benefit of doubt and acquitted. Leave to appeal was granted to Sher Ahmad appellant in the instant case in order to consider as to whether the sentence of death awarded to the appellant in the circumstances of the case was proper or not when the motive set up by the prosecution was remote and the occurrence was followed by an exchange of abuses between the two parties.
Briefly the facts are that on 29th August, 1982 sometime in the morning the deceased and Mohammad Afsar acquitted co-accused quarreled in Attock Town on account of previous litigation between them which had taken place 7/8 years ago. However, they were separated by the people. But it is alleged that on that very day in the evening ,Moharomad Afsar complainant went to see his father who was residing with his younger brother i.e. the deceased. In his presence at about 6 p.m. the deceased went out of his house to bring cigarettes from the shop. When he reached the nearby house of one Mohammad Sarwar, there was heard the notice of an alarm of quarrel which attracted both Mohammad Afsar complainant and his father Wazir Khan. They rushed to the spot in the street and saw the appellant and his brother armed with revolvers abusing the deceased. They were abusing the deceased and shouting that they would teach him a lesson for the previous insult. The deceased abused them in return whereupon the appellant fired a shot at him through his revolver which hit the deceased on his chest and he fell down. In the meantime Mohammad Afsar complainant tried to advance forward in order to rescue his brother but the brother of the appellant (Mohammad Afsar acquitted co-accused) fired at him. However, Mohammad Afsar complainant took shelter behind a wall and was not injured. The two other eye-witnesses were also attracted to the spot who saw the occurrence but the accused party ran away firing in the air. The deceased was taken to the hospital in an injured condition but he died on reaching the hospital.
The F.I.R. in this case was lodged by Mohammad Afsar complainant at 7-15 p.m. on the same day. The appellant and his brother were arrested on 31st August, 1982. On 9th September, 1982 revolver was recovered at the instance of the appellant. There "are three eye-witnesses of the occurrence produced namely Mohammad Afsar complainant, Arshad Ali and Wazir Khan.
Before us learned counsel for the appellant argues that 7/8 years prior to the present occurrence there took place a quarrel between the deceased and Mohammad Afsar acquitted co-accused etc. The case was registered at the instance of the deceased and that the accused party in that case were acquitted. Learned counsel argues that the previous quarrel which had taken place was 7/8 years old and there had been a compromise between the parties. According to the learned counsel therefore the motive set up by 'the prosecution was too remote and should have not been relied upon in the instant case. It was next submitted that admittedly the eye-witnesses had arrived at the spot when the abuses were being exchanged between the parties and that it was because of the exchange of the abuses that the appellant might have been suddenly provoked to fire at the deceased through his revolver. In this background, according to the learned counsel, when the immediate cause of occurrence was not known and it was followed by an exchange of abuses between the parties, the sentence of death awarded to the appellant was not proper and that the sentence of imprisonment for life in such circumstances should have been sufficient to meet the ends of justice.
We have carefully considered the arguments of the learned counsel. Leave to appeal was granted in this case only to consider the question of sentence awarded to the appellant. The case of the prosecution is that although litigation had taken place between the parties 7/8 years ago, quarrel in respect of the same re-emerged in the morning of the day of occurrence when the parties were separated. The next point is that the appellant was armed with a revolver and even if there was exchange of abuses between them there was no reason why the appellant should have whipped out the revolver which he was carrying and to have fired a shot from a very close range hitting the deceased in the chest. According to the medical evidence there was blackening around the wound and under the injury both the lungs, the walls and paritonium had been damaged. Even the liver was ruptured. In that view of the matter in our considered opinion the sentence of death awarded to the appellant under section 302, P.P.C. was quite proper and well-deserved. The impugned judgment of the High Court calls for no interference.
The result is that this appeal is dismissed
S.Q./S-101/S Appeal dismissed