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Petitioner: ABDUL SATTAR VS Respondent: STATE
1988 S C M R 866
1988 S C M R 866
Present: Aslam Riaz Hussain, Actg. C. J. and Javid Iqbal, J
ABDUL SATTAR and others‑‑Petitioners
versus
THE STATE‑‑Respondent
Petition for Leave to Appeal No.136 of 1987, decided on 29th February, 1988.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 11th March, 1987 in Criminal Appeal No.442 of 1985).
Penal Code (XLV of 1860)‑‑
‑‑‑Ss.302 & 307 read with 5.149‑‑Counter‑versions of occurrence‑ Evidence‑‑ Contentions (i) that there was no justification on part of High Court to arrive at conclusion that defence version was unacceptable or that the complainant party was not aggressor who had opened the attack, and (ii) that uncorroborated ocular testimony in the background of long standing enmity between parties should not have been relied upon‑‑Leave to appeal granted to consider whether defence version had been properly appraised in accordance with established principles of safe administration of criminal justice.
Attaullah Sajjad, Senior Advocate Supreme Court instructed by Rana M.A.Qadri, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing: 29th February, 1988.
ORDER
JAVID IQBAL, J.‑‑The petitioners have filed this petition for leave to appeal in the following circumstances: They alongwith Muhammad Aslam were tried for offences under section 302/307/149, .P.P.C. and vide judgment dated 6th July, 1983 of the Additional Sessions Judge Gujranwala, except Muhammad Aslam co‑accused, all the present petitioners were convicted under section 302/149, P.P.C. and each of them was sentenced to imprisonment for life plus fine. They were also convicted under section 307/149, P.P.C. and each of them was sentenced to four years' R.I. plus fine. On appeal the Lahore High Court, Lahore maintained their convictions as well as sentences, and dismissed their appeal.
There are two deceased in the instant case who are real brothers namely Muhammad Tahir and Muhammad Din. The injured‑person is Mazhar Hussain P.W.10 who is son of Muhammad Tahir deceased. The occurrence took place at 4 p. m. on 6th March, 1983 in the fields of Village Trigri District Gujranwala. The recoveries in this case are not of any corroborative value. There are three eye‑witnesses produced by the prosecution namely Muhammad Shamoon P.W.9 brother of the two deceased, Mazhar Hussain P.W.10 injured son of Muhammad Tahir deceased and Muhammad Akbar P.W.11 not related. The motive for the occurrence is that there was dispute between the parties about the possession of some land allotted to each of the parties in the course of the consolidation proceedings. Thus, there had been enmity existing between them since 1966. The prosecution case is that the accused party waylaid the complainant side while they were armed with dangs and launched their attack. Thus, they caused injuries to the two deceased as well as injured Mazhar Hussain P.W. While leaving the place of occurrence Hassan Muhammad petitioner picked up the licensed gun of Muhammad Din deceased alongwith belt of cartridges.
It is submitted by the learned counsel for the petitioners that from the very outset there were two versions of the same incident, one given by the prosecution and the other put up by the defence. It was next submitted that Liaqat petitioner had sustained injuries in the course of the occurrence. According to the medical evidence he had one incised wound in the abdomen and the other incised wound on the right parietal region. The abdomen wound was declared as grievous. This injury had not been explained by the complainant side in the F.I.R. From the beginning the case of the defence was that some of the accused persons namely Muhammad Aslam (acquitted), Abdul Sattar, Hassan Muhammad and Muhammad Ashraf petitioners were not present on the spot and had been falsely implicated. However, Muhammad Arshad, Abdul Jabbar, Muhammad Afzal and Liaqat petitioners were present on the spot when the complainant side attacked them and injuries were caused to Liaqat petitioner. Thus, in retaliation and in the exercise of their right of self‑defence only these petitioners caused injuries to the two deceased as well as Mazhar Hussain P.W. According to the medical evidence Muhammad Din deceased had as many as nine injuries caused with blunt weapon on different parts of his body mainly on the head, whereas Muhammad Tahir deceased also had nine injuries caused with blunt weapon on different parts of body mostly on the head. Mazhar Hussain P.W. had 6 injuries caused with blunt weapon on his person and one incised wound. Learned counsel submitted that the learned Single Judge in para 22 of the main judgment (page 20 of the paper-book) has observed that there were two versions of the occurrence as four of the petitioners had taken a clear stand of having acted in self‑defence. Thus, the learned Judge examined both the versions in juxtaposition. He also noted that Liaqat petitioner was found injured and no mention about his injuries had been made in the F.I.R. It was further noted that one of the deceased was carrying a gun at the time of attack. Nevertheless it was submitted that there was no justification on the, part of the learned Judge to arrive at the conclusion that the defence version was unacceptable or that the complainant party were not the aggressors who had opened the attack. It was also argued that reliance had been placed exclusively on the ocular testimony in this case which has been disbelieved by the trial Court in respect of Mohammad Aslam co‑accused who was acquitted on the finding of the trial Judge that he had been falsely implicated. Consequently the argument of the learned counsel is‑ that the uncorroborated ocular testimony in the background of enmity existing between the parties since 1966 should have not been relied upon.
We grant leave in this case in order to consider as to whether the defence version had been properly appraised in this case in accordance with the well‑established principles of safe administration of criminal justice.
S.Q./A‑182/S Leave granted.