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Petitioner: ALAM SHER VS Respondent: STATE
1988 S C M R 844
1988 S C M R 844
Present: Aslam Riaz Hussain, Abdul Kadir Shaikh, Javid Iqbal, Saad Saood Jan and Ali Hussain Qazilbash, JJ
ALAM SHER and another‑‑Appellants
versus
THE STATE‑‑Respondent
Criminal Appeal No.76 of 1984, decided on 9th March, 1988
(On appeal from the judgment/order of Lahore High Court, Lahore, dated 10‑10‑1983 in Criminal Appeal No.208 of 1981).
Penal Code (XLV of 1860)‑‑
‑‑‑S.302/34‑‑Leave to appeal was granted to reappraise prosecution evidence particularly with regard to defence version set up by accused‑‑Prosecution evidence considered in juxta‑position with version of accused leading to conclusion that injuries found on person of deceased not finding proper explanation in statement of accused‑ Explanation regarding injuries with sharp‑edged weapon by accused lacking much‑‑One of injuries on head of deceased by a blunt weapon had done much damage and according to medical opinion same was individually sufficient in ordinary course of nature to have caused death of deceased‑‑Plea of self‑defence put forth by accused neither inspiring confidence nor advancing case of accused in any manner‑ Conviction and sentence maintained in circumstances.
Ghulam Dastgir, Advocate‑on‑Record for Appellants.
Abdul Ghafoor, Advocate Supreme Court and Rao M.Yousaf, Advocate‑on‑Record for the State.
Date of hearing: 9th March, 1988.
JUDGMENT
ABDUL KADIR SHAIKH, J.‑‑This appeal, by leave, is directed against judgment of Lahore High Court dated 10‑10‑1983 by which an appeal filed by the two appellants herein was dismissed, and in result conviction recorded against them by the Additional Sessions Judge, Faisalabad, under Section 302/34, P.P. C. and the sentence of life imprisonment and fine of Rs.10,000 imposed upon them were upheld.
The prosecution story, in brief, is that Ismail (deceased), brother of Amir Ali, the first informant, went on a bull‑cart alongwith Mathela to the house of his father‑in‑law, Muhammad, to fetch cots which he had got prepared for the marriage of his sister. Ismail had taken a rifle with himself as due to enmity with appellants, he ,apprehended danger from them. As he did not return till 11 a.m., Amir Ali went out to enquire about his whereabouts. He saw his brother coming alongwith Mathela on the bull‑cart which was loaded with cots. Suddenly, the two appellants and their brother Shahamand came from behind and attacked Ismail. It is said that while Alam Sher appellant took Ismail into Japha, Ismail in order to rescue himself from the grip fired his rifle which hit a she‑donkey which was moving about in the Bazar. Ahmad appellant who was armed with knife stabbed Ismail with the result that the victim fell down. Shahamand co‑accused who was acquitted by the High Court is said to have snatched rifle from Ismail and gave a blow with the butt of the rifle on the head of Ismail. The culprits then ran away as Amir Ali, Mathela, Gehla and Abdullah rushed to the spot.
The motive for the crime stated was that Mst.Fateh Bibi sister of Ismail (deceased) was given in Nikah to Alam Sher but Rukhsati had not yet taken place. Afterwards, relations between the parties got strained, and Ismail compelled Alam Sher appellant to divorce his sister. Due to this, Alam Sher was annoyed. In addition, it is said that Alam Sher and his party‑men had killed three cattle‑heads of Ismail by administering poison to them, and the dispute was referred to Panchayat with the result that Alam Sher and his party‑men had to pay Rs.15,000 as compensation to Ismail.
At the trial, the prosecution examined Amir Ali and Abdullah as eye‑witnesses, who fully supported the version of the incident stated in the FIR which has been mentioned above. In addition to the ocular testimony, reliance was placed on the circumstantial evidence of recovery of blood‑stained knife from the house of Ahmad appellant at his instance, which according to the Chemical Analyser's report was stained with human blood.
Appellants denied the prosecution case. Ahmad appellant, however, gave the version of the incident as under:‑
"At the time of occurrence, I was going to my house with fodder loaded on she‑ass and when I reached near the Dera of Gehla Lumberdar the deceased fired at me from behind and luckily I was saved and the bullet hit my she‑ass. I looked back and under sudden and grave provocation and in exercise of right of self‑defence of person and property, I gave blow on the chest of the deceased with plain sickle and the deceased fell down. None of the P.Ws. was present at that time. I am innocent."
Learned Additional Sessions Judge who tried the case believed the prosecution version as to the ocular as well as the circumstantial evidence, and he rejected the defence plea set up by Ahmad appellant for several reasons mentioned by him in the judgment.
On appeal at the instance 'of the convicts, learned Judge in the High Court on re‑appraisal of the prosecution case fully agreed with the views that prevailed with the learned trial Judge and dismissed the appeal so far as appellants were concerned. Learned Judge, however, gave benefit of doubt to the co‑convict Shahamand, brother of the appellants and acquitted him of the charges.
Leave to appeal was granted by this Court on a joint petition filed by the appellants, through jail, to re‑appraise the prosecution evidence, particularly with regard to the defence version set up by Ahmad appellant.
After having gone through the record of the case, we find that no exception can be taken with the view that prevailed with the learned trial Judge and the learned Judge of the High Court as to the evidence produced by the prosecution in support of the charges levelled against the appellants.
With regard to the defence plea set up in the case, learned Judge in the High Court has observed as under:‑----
"With this assessment of the prosecution evidence when the same is considered in juxta‑position with the version put forth by Ahmad appellant, the facts which come to light are that the injuries found on the person of the deceased do not find proper explanation in the statement of Ahmad appellant. According to him, he had attacked the deceased after he was fired at, from a distance of 40 yards, going with the she donkey. Firstly it does not seem possible to believe that a person armed with sickle only could have run from a distance of 40 yards to attack a person armed with rifle who has already fired a shot which had hit the she‑donkey. The other thing is that the deceased in that case would have been better placed as even if it is to be granted for the sake of argument that the rifle had no other bullet in its chamber, he could, if not had succeeded in hitting the appellant, could have easily warded off the attack by sickle, which is a very small weapon, as compared to the rifle. The injuries found on the dead body of the deceased with a sharp‑edged weapon, could not have been caused by a sickle. Thus, the explanation regarding the injuries of sharp‑edged weapon by Ahmad appellant is lacking much, what to say of blunt‑weapon injuries on the dead body of the deceased, regarding which he has not stated anything and about which it can be safely assumed that they could not have been caused with a sickle. One of the injuries on the head by a blunt‑weapon had done much damage, and according to the opinion of the doctor, this injury was sufficient individually in ordinary course of nature to have caused death of the deceased, but even ignoring this fact, the other thing is that according to the doctor, the she‑donkey was fired at from back side, which means that while the deceased was going towards north, the she‑donkey was going, or was being taken towards south. In that case it can be assumed that the two must have crossed each other. If the deceased had to fire, he would have done it while the owner of the she‑donkey was coming in front of him or while he was passing by.
For the reasons enumerated above, no doubt is left in my mind that the plea advanced by Ahmad appellant does not inspire confidence nor does it advance the case of the appellants in any manner."
We whole‑heartedly agree with his views and find no merit in this appeal. It is accordingly dismissed.
M.Y.H./A‑194/S Appeal dismissed.