2002 PLP 1399 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑This is complainant's petition seeking leave to appeal against the judgment dated 28‑5‑2001 of the Lahore High Court through which on acceptance of appeal filed by the respondent, his conviction and sentence of life imprisonment has been set aside and he has been acquitted.

2. The case of the prosecution was that Shamsher, respondent, armed with gun, his father Ghulam Hussain empty‑handed approached the cattle shed of the complainant and fired at Liaqat, deceased on account of which he died.

3. The respondent was tried for the murder of Liaqat deceased and the trial Court after assessing the evidence of the prosecution convicted him under section 302(b), P.P.C. and sentenced him to life imprisonment through judgment, dated 30‑6‑1998 against which appeal filed by him has been accepted.

4. The case has been decided in detail in paragraphs Nos.9 and 10 of the impugned judgment by the learned Judge of the High Court, which are reproduced below in extenso: "

9. When the prosecution case and the defence version are viewed by keeping in view the statement made by Dr. Akhtar Mehmood, I find that defence version appears to be more plausible as compared to the prosecution case. According to the complainant, if Shamsher alongwith his father who was of course empty‑handed had come with an intention of committing murder of Liaqat deceased after making preparations and arming themselves then how they could be apprehended after Shamsher had tired a shot at Liaqat deceased and he was still possessed with gun and ammunition. The story that there was a scuffle in between the parties and after receipt of the gun fire, these two persons were apprehended, does not appear to be acceptable. Had the appellant come to launch an attack, his father would not have accompanied him empty‑handed and after they had launched the attack then there was nothing to prevent them from firing a second shot. A person carrying a gun and also having ammunition alongwith him, could possibly not be apprehended by the witnesses, as stated by them. As against that the defence version that there was a scuffle in between the parties and during this scuffle a fire was shot, as a result of which, Liaqat lost his life is materially supported by the attending circumstances e.g. Liaqat received one injury which has blackening around the wound, it thus indicates that same had been caused from a close range. This fact coupled with the circumstance that how the deceased could succeed in snatching the gun, proves a long way that they had not come with intention to commit murder. Had the appellant come with intention of attack and Liaqat had been caused injury with fire‑arm then there was no reason with the prosecution to have waited for one day to lodge the report. The occurrence took place in this case on 17‑8‑1996 at 8‑00 a.m. whereas the matter was reported to the police on 18‑8‑1996 at 9‑30 a.m. This delay in lodging the F.I.R. also lends to an inference that the appellant was not aggressor but subsequently when the condition of injured deteriorated, the matter was reported by coming forward with a story which does not conform to the circumstances as emerged from the record. The defence has also explained and it is admitted by the complainant that in the vicinity and near the Dera of the appellant pigs were found in abundance. Keeping licensed gun by the appellant or his father was thus quite natural.

10. In view of the above discussion and after assessing and analysing the prosecution as well as the defence version, I find that defence version appears to be more plausible as against complainant's accusation. Accordingly, I find that prosecution has not been able to prove case against the appellant. The appeal is accepted, conviction and sentence as recorded by the learned Sessions Judge, is set aside. The appellant shall be released from jail, if not required in any criminal case. "

5. It has been found keeping in view the number of injuries sustained by Ghulam Hussain father of the respondent who was empty‑handed and fire arm injuries suffered by the deceased that the same were tired from a very close range, therefore, it was held that the respondent Shamsher did not approach the Dera of the complainant with the intention to commit murder. It was on account of scuffle at the spot that the gun of respondent triggered of and it hit Liaqat deceased and the story of the prosecution that after sustaining the injuries of fire‑arm the deceased got hold Shemsher and injuries were caused to Ghulam Hussain was found to be not plausible.

6. The judgment impugned is based on correct and elaborate appraisal of evidence which satisfies the principles laid down by the superior Courts for safe administration of criminal justice, therefore, it was rightly held that the incident did not take place in the manner as mentioned in the F.I.R. and assailant party did not have any intention to commit murder.

7. Resultantly, this petition being meritless, is hereby dismissed and leave refused. Q.M.H./M.A.K./A‑212/S Petition dismissed.