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Jail Petition No.‑ 81/R of 1983, heard on 22nd November 1983.

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Murder‑‑Evidence ‑‑Leave to appeal‑‑Granted to re‑appraise evidence on record. ‑‑[Evidence].

Date of hearing: 10th October, 1983.

J.‑‑ Petitioners Alam Sher and Ahmed, alongwith Shahmand were tried by the learned Additional Sessions Judge, Faisalabad under section 302/34, P.P.C. for committing the murder of Ismail on 30‑5‑1979 at about 11 a.m. near the Dera of Gehla, Lambardar in Chak No. 189/R.B. Chak Jhumra Police Station. All the three accused were convicted and sentenced to life imprisonment and a fine of Rs. 10,000 each, in default, to undergo R.I. for two years, vide judgment dated 26‑2‑1981. Amount of fine, if recovered, was ordered to be paid to the heirs of the deceased. Appeal filed in the Lahore High Court resulted in dismissal as regards Alam Sher and Ahmad but Shahmand was given the benefit of doubt and was acquitted vide judgment, dated 10‑10‑1983.

2. I have gone through the evidence and find that Amir Ali, brother of the deceased and Abdullah, who had enmity with the appellants, furnished ocular account, although appearance of Amir Ali at the spot at the relevant time does seem to be a miraculous co‑incident. The other witnesses Mumtaz and Gehla have not been produced as they were abandonded by the prosecution as unnecessary. Amir Ali stated that he saw that P.W. Methela was driving the bullock‑cart and his deceased brother Ismail was moving alongwith the cart when the three accused/ petitioners namely Alam Sher, Ahmad and Shahmand (acquitted accused) appeared. Alam Sher caught hold of the deceased who, in order to rescue himself, fired a shot with his rifle killing a she‑donkey standing close by. Thereafter Ahmad petitioner who had a knife, stabbed the deceased. The acquitted accused Shahmand is also said to have snatched the deceased's rifle and gave a blow to him with the butt of the rifle. It is admitted at all hands that the deceased was armed with a rifle which he used during the scuffle with the accused, whereas the defence version is that seeing the petitioner Alam Sher the deceased fired at him who escaped unhurt and thereafter he used a knife to defend himself.

3. The bullet fired by the deceased had hit a she‑donkey, which was found lying dead at the spot. On examination of its careers Dr. M. Bashir Veterinary Officer, then posted at Veterinary Hospital in Chak No. 106/‑R.B., Tehsil Faisalabad, found a gunshot wound on its right buttock about I" and another I" gunshot wound on its right flank near the 16th rib. This being the case I would grant leave to re‑appraise the evidence on record.

S. Q. Leave granted.

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