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Petitioner: AHMAD NAWAZ VS Respondent: KHAN ZAMAN
1988 S C M R 494
1988 S C M R 494
Present: Aslam Riaz Hussain, Javid Iqbal and Saad Saood Jan, JJ
AHMAD NAWAZ--Petitioner
versus
KHAN ZAMAN and others--Respondents
Petition for Leave to Appeal No.277 of 1984, decided on 16th January, 1!88 8.
(On appeal from the judgment and order of the Lahore High Court, Lahore dated 24th March, 1984 in Murder Reference No.124 of 1981/ Criminal Appeal No.116 of 1981).
Penal Code (XLV of 1860)--
---S.302/34--Constitution of Pakistan (1973), Art. 185(3)--Appreciation of evidence-- Conflicting versions of occurrence--Acceptance of defence version--Accused sustaining fire-arm injuries--Prosecution witnesses being interested and hostile. disbelieved-- Conflicting versions of incident given by prosecution and defence--Defence version being supported by medical evidence and record indicating that F. I. R. lodged by accused was prior in time--High Court's acceptance of defence version in circumstances held was justified--No ground having been made out for interference, leave to appeal refused.
Raja Muhammad Anwar, Senior Advocate Supreme Court instructed by Muhammad Aslam Choudhry, Advocate-on-Record for Petitioner.
M . B . Zaman, Advocate Supreme Court instructed by M.A. Qureshi, Advocate Supreme Court for Respondents Nos.l and 2.
Dil Muhammad, Advocate Supreme Court for Respondent No.3.
Date of hearing: 16th January, 1988.
ORDER
JAVID IQBAL, J.--This petition for leave to appeal has been, filed by Ahmad Nawaz petitioner and is directed against the judgment dated 24th March, 1984 of the Lahore High Court Lahore.
Briefly the facts are that Khan Zaman and Fatoi Khan respondents were charged under section 302/34, P.P.C. and vide judgment dated 25 April, 1981 of the Additional Sessions Judge Attock both of them were convicted under the aforesaid sections and Khan Zaman respondent was sentenced to death plus fine whereas Fatoi Khan respondent was sentenced to imprisonment for life plus fine. On appeal the Lahore High Court, Lahore vide the impugned judgment acquitted both the respondents.
The deceased in the instant case is Mehr Khan who is father of Ahmad Nawaz petitioner. The occurrence took place on 17 August, 1980 at 7-30 a. m. in Kotha Dhok Dakhali, Police Station Lawa, District Attock. The F.I.R. was lodged by Safdar Ahmad PW. Both the respondents were arrested on 19 July, 1980 in the Hospital Talagang. From Khan Zaman respondent was recovered human blood-stained Vahola whereas from Fatoi Khan respondent was recovered a stick not stained with blood. There are two eye-witnesses of the occurrence namely Safdar Ahmad and Lal Khan P.Ws. Both of them were related to the deceased and had been considered as interested witnesses. According to the prosecution version the motive was that the deceased had purchased some land from one Nur Khan brother-in-law of the two respondents. At the behest of the two respondents one Mehl Khan brought a pre-emption suit which was decreed in his favour. The possession of the disputed land was with the deceased and the two respondents wanted to take forcible possession from him. Consequently on the fateful day the two, respondents chased the deceased while being armed with Vahola and stick. When they reached close to him the deceased fired at them with his licensed pistol which he was carrying. Zaman Khan respondent was hit by a shot. Then the two respondents caused 12 injuries to the deceased as a result of which he died. The defence version in this case as given by Khan Zaman respondent is that he was attacked and injured at the hands of the deceased by a shot. He defended himself in order to save his life and thus caused injuries to the deceased in the exercise of his right of self-defence. Thereafter immediately after the occurrence it was he who first went to the police station to lodge F.I.R. giving full details of the occurrence. Thus according to the defence the occurrence had taken place in the manner given in his F.I.R. Ex.DB and that at that time the eye-witnesses produced were not present at the spot. Just as there are blunt weapon injuries on the person of the deceased which led to his death, in the same way there is a fire-arm injury on the person of Khan Zaman respondent.
Learned counsel for the petitioner argues that the occurrence was witnessed by the eye-witnesses and in accordance with their version the deceased had fired shots at the respondents in order to save his life while the respondents were chasing him armed with Vahola and stick. He is stated to have fired three shots out of which two missed and one hit Khan Zaman respondent. Thereafter they way-laid the deceased and caused so many injuries to him until he died. He further submitted that the defence version should have not been relied upon.
We have carefully considered the arguments of the learned counsel. The eye-witnesses have been rightly disbelieved in this case as they were interested and hostile. In this background there were; two versions of the occurrence one given by the prosecution and the other by the defence. The defence version is supported by the medical evidence and fire-arm injury on the person of Khan Zaman respondent. The record also indicates that his F.I.R. lodged at the police station was prior in time. Out of the two versions the High Court accepted the defence version and in the circumstances in our view no ground is made out for interference. The petition is therefore, dismissed.
M.I. /A-157/S Petition dismissed.