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Criminal Petition for Special Leave to Appeal No. 382 of 1980, decided on 17th October, 1981.

(Against judgment of Lahore High Court, Lahore, dated 4‑5‑1980 passed in Criminal Appeal No. 601 of 1978).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Penal Code (XLV of 1860), S. 302/149‑‑Leave to appeal granted to re‑appraise evidence for considering whether defence version was possible and reasons given by High Court for rejecting same were correct.

S.M. Zafar with Ziauddin, Advocates Supreme Court and Tanvir Ahmad Advocate‑on‑Record for Petitioner

Nemo for the State.

Date of hearing: 17th October, 1981.

Allah Yar petitioner was tried along with some others, i.e. his two brothers Ghulam Farid and Najabat and his relatives, namely, Muhammad Sher, Riaz Hussain alias Nawaza, Inayat and Haider, inter alia, for an offence under sections 302/149, P.P.C. by Additional Sessions Judge, Faisalabad. By his judgment, dated 12‑5‑1978, the trial Judge acquitted 6 co‑accused but convicted Allah Yar petitioner under section 302, P . P. C . and sentenced him to death. Allah Yar filed appeal before the High Court against his conviction. The complainant also filed a Revision against acquittal of the co‑accused. The High Court dismissed the Revision as well as the appeal, maintained the conviction and confirmed the death sentence of Allah Yar, petitioner.

2. The occurrence in question took place at about 6‑30 a.m. on 18‑10‑1975, in a village in Tehsil Jaranwala. Shahmand P.W.6, a cousin of the deceased lodged an F.I.R. about the incident at 6‑45 a.m. The version as given by him in the F.I.R. is, briefly, that early in the morning he (Shahmand P.W.6) was going to Rana Muhammad Ashraf in Chak No.193/R‑B in the company of Mohabat (deceased). Hidayat P.W.9, Sadiq P.W.10, Zulfiquar, Noor Muhammad, Saeed and Sardar (given up P.Ws.). The Dera of Allah Yar, accused‑petitioner fell in the way. When they reached near his Dera, the abovementioned accused including Allah Yar petitioner, who were sitting behind some thick Sarkanda bushes, suddenly emerged there from behind. Allah Yar petitioner was armed with a .12 bore gun, while one of the remaining (acquitted) accused Najabat, was armed with a rifle, Nawaz, Inayat, and Haider with guns, and Farid and Bashir with Dangs. They shouted that they would teach them (the members of the complainant party) a lesson for involving them in a false case about the abduction and murder of Mian Khan, and started firing at them. The complainant party also started firing in return, but when they (members of the complainant party) were retreating towards their village a shot fired by Allah Yar through his .12 bore gun hit Mohabat (deceased) on the right upper arm, which after crossing the arm pierced through his body as a result whereof he fell down and died at the spot.

The motive for the occurrence is stated to be that about 5/6 months earlier Allah Yar, etc., had abducted Mian Khan a close relative of the complainant party and murdered him, on which Allah Yar, etc. had got a case under section 364, P.P.C. registered against the accused party which, it is alleged, the accused had deeply resented and it is for this reason that they had attacked Mohabat Khan, etc.

3. On the same day, Allah Yar petitioner also lodged a report at the Police Station which was recorded by the same S.I. (Mushtaq Ahmad) who had recorded the F.I.R. on the statement of Muhammad P.W.6. According to this report at about 6‑30 a.m., on the day of occurrence, Allah Yar had gone to the Dhari of his nephew Muhammad Sher to milch the buffalo which he had tied there. His brothers Najabat, Farid and Muhammad Sher were also present there. Soon after his arrival Shahmand (armed with a gun) Mohabat (deceased) and Sardar (both armed with guns) Zulfiqar, Sadiq, Noor Muhammad and Hidayat (all armed with Lathis), emerged from behind the nearby Sarkanda bushes and shouted that they had come to avenge the abduction of their relative Mian Khan. Thereafter, they started firing at Allah Yar, etc. who also started firing in return. One shot fired by Allah Yar hit Mohabat (deceased), as a result of which he fell down and died at the spot.

The motive for the attack as given in this F.I.R, was that 5/6 months prior to the occurrence Mian Khan a cousin of Shahmand and Zulfiqar, had disappeared and they suspected Allah Yar, etc. of having abducted and killed him. They, therefore, got a case under section 364, P.P.C., registered against them. It was alleged by Allah Yar that Shahmand, etc. had mounted an attack on him and his companions in order to avenge the above mentioned murder.

4. At the trial, the prosecution case was supported by Shahmand, Hidayat and Sadiq, eye‑witnesses. All of them stated that it was the shot fired by Allah Yar which had hit the deceased. Their testimony was supported by the recovery of a .12 bore gun from Allah Yar which matched with some of the crime empties recovered from the spot, according to which the post‑mortem examination revealed the following injuries on the body of Mohabat (deceased):‑

(1) A wound of inlet 1/3" x 1/6" x chest cavity deep on right outer side of chest, 5" below Axilla just behind mild auxiliary line;

(2) A wound of outlet x 1/4 on the left side of chest, 1" below axilla just opposite to this injury there were marks of echymosis x 1/6" on inner side of left upper arm;

(3) An inlet wound 1/4 x 1/6" muscle deep on back and outer side of right upper arm 4" above right elbow;

(4) An outlet exit wound x on the left side of the chest corresponding to injury No.3 above.

The accused pleaded not guilty. Allah Yar, however, gave a counter version. He admitted having lodged in F.I.R. about the same incident on the same day (gist of which has been reproduced in para. No.3 above). He, however, submitted that the portion of the F.I.R. lodged by him, wherein, he had admitted that it was the shot fired by him which hit Mohabat deceased had been included therein on the suggestion of the police.

Believing the prosecution evidence, the learned trial Court convicted and sentenced Allah Yar as mentioned above, and the High Court upheld the same.

Hence the present Petition for Leave to Appeal.

5. The learned counsel for the petitioner submitted that Allah Yar has not only admitted the occurrence but has also given a counter version: He pointed out that the counter‑version put forward by Allah Yar (petitioner) the time of occurrence is the same as given in the prosecution version. The factum of cross‑firing by the parties at each is also admitted and the motive is also the same. The only difference is that each side has alleged that the other was the aggressor. The petitioner's counsel, therefore, submitted that the only question before the Court was to determine as to which of the two versions is more likely to be correct. On considering the two versions in juxtaposition, it is possible that the defence version may be correct. He submitted by a look at the motive as alleged by the accused party is more plausible and it is the complainant party that had the real grievance and was more likely to have made the attack, and the mere fact that during the incident, one of the assailants (namely, Mohabat deceased) himself lost his life, could not be treated as a proof of the assertion that it is Allah Yar petitioner and his companions, who had ambushed them. In support of his contention he also submitted that the story about the accused‑petitioner and his partymen having ambushed Shahmand, etc. is patently false because they could not possibly have known that the complainant party would be passing by the Dera of Allah Yar on their way to Chak No.193‑RB at that particular time and as such they could not possibly be hiding in ambush, waiting to attack him.

He also adverted our attention to the medical evidence and pointed out that according to the prosecution version the deceased had been hit by a gunshot fired by Allah Yar petitioner which after penetrating his right upper arm pierced through his entire body and went out from the opposite side. He submitted that if the gunshot had been fired at from a very short range, a large number of pellets would have entered the arm and it would have caused a much larger wound of entry and scratching and blackening, would also have been present. On the other hand, if the shot had been fired from a longer distance, say 10/15 ft., more than one pellets would definitely have hit the deceased, which is not the case, and finally that if the shot had been fired from a longer distance and the dispersal of the pellets was so much that it was possible that only one pellet could have hit the deceased, then in that case, the pellet would not have been left with sufficient force to pass through the arm of the deceased and then pierce his entire body as it did. He therefore, submitted that it is evident that the shot in question had been fired through a rifle which only could have enough velocity to pierce through the deceased's body. He submitted further that the reasoning of the learned High Court that if the rifle bullet had pierced the body it would have caused a bigger hole than that noticed by the doctor during the post‑mortem examination, is incorrect. After referring to Modi's Medical Jurisprudence he pointed out that it was quite possible for a rifle bullet to have resulted in injuries of the dimension found on the body of the deceased during the autopsy.

6. Having heard the learned counsel, we feel that this is a fit case for considering whether the defence version was possible and the reasons given by the learned Division Bench of the High Court for rejecting the same are correct. Leave is, therefore, granted to reappraise the evidence for the said purpose.

M.Y.H. Leave granted.

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