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Criminal petition No. 176‑R of 1982, decided on 21st May, 1985
(On appeal from the Judgment and order, dated 10‑11‑1982 of the Peshawar High Court, Circuit Bench Abbottabad, passed in Criminal Appeal No. 88 of 1981).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑Different version from complainant and defence sides‑‑Plea of self‑defence rejected by trial Court but given full effect by High Court on basis of evidence on record‑‑Conclusion drawn being un exceptionable, petition for leave to appeal dismissed.
S.M. Zafar, Senior Advocate Supreme Court with M. Bilal, Advocate, Supreme Court and Khan Imtiaz Muhammad Khan, Advocate -on‑Record for Petitioner.
M. Ishaque Khan, Advocate Supreme Court with M.A. Siddiqui, Advocate‑on‑Record for Respondents Nos.l to 3.
Date of hearing: 21st May, 1985.
This petition is directed against the acquittal of Shamas Gul, Muhammad Gul, brothers inter se, and Sharif Gul son of Shamas Gul, who were tried alongwith Alif Gul for the murder of Ahmad Fayaz at 9.30 a.m. on the 30th of May, 1980, inside the Market of Sher Ahmad, situate at Chandni Chauk, Haripur, by firing pistol shots.
The trial Court acquitted Alif Khan, but convicted the others under section 302, P.P.C. read with section 34, P.P.C. and sentenced them each to imprisonment for life and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for two years.
Before the trial Court there were two different versions. From the complainant side it was alleged that deceased Ahmad Fayaz went to the oven situate inside the Market of Sher Ahmad for bringing bread, and there at the instance of Alif Gul, those convicted by the trial Court fired effective pistol shots at the deceased causing him fatal injuries as a result of which he died. The other version was, as given by Sharin Gul when he was examined under section 342, Cr.P.C, that Muhammad Nawaz, the only eye‑witness in the case, owed Rs.137 on account of articles purchased from his shop. On the fateful morning he again went to purchase certain articles on credit which led to an argument and Muhammad Nawaz called him a cheat, upon which Sharif Gul, his brother, gave him fists blows. He thereafter went and again came back armed with a pistol, but some persons present there prevented him from using the weapon. Thereafter Sharif Gul went to the oven for warming up a tin of vegetable oil and again at that place Muhammad Nawaz, Chan Muhammad and Ahmad Fayaz who was armed with a dagger stabbed Sharif Gul thrice while Muhammad Nawaz fired his pistol shot at him but the bullet went stray. Sharif Gul, in the meantime, raised a cry which attracted him and on seeing him being assaulted he fired two or three pistol shots at Ahmad Fayaz to save his brother from being further injured. Sharif Gul had two incised injuries, one on the abdomen and the other on the back of his thigh.
The trial Court rejected the plea of self‑defence on the ground that when the shots were fired by Sharif Gul, Ahmad Fayaz had retreated after causing the blows and in that event there was no danger of any further blows being caused to Sharif Gul. It did not occur to the trial Court that the mere retreat by no means would have reduced the danger so long as the deceased and the others were armed and were in a position to inflict further blows. The High Court did not place implicit reliance on the testimony of Muhammad Nawaz as, in its opinion, he was the person who was responsible for this episode; and therefore, had a motive to implicate as many persons as he could involve. While considering the plea of self‑defence, the High Court came to the conclusion that it was the complainant party which was the aggressor as it was motivated to take revenge on account of the earlier insult caused to Muhammad Nawaz and, accordingly, gave full effect to the plea of self‑defence as it was obvious from the evidence on record.
Mr. S.M. Zafar, the learned counsel for the petitioner was not able to point out any error in this conclusion drawn by the High Court which, in our view, is unexceptionable.
Therefore, there is no merit in this petition, which is dismissed.
M. I. Petition dismissed.
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