1990 PLP 327 (SCMR)

Date of hearing: 25th September, 1989. JAVID IQBAL, J.‑‑In this petition for leave to appeal the death sentence awarded to the petitioner has already been commuted under the general amnesty granted by the President of Pakistan but learned counsel submits that in the instant case the petitioner Saifullah Khan was wrongly convicted and sentenced. The petitioner alongwith four others namely Murtaza Khan, Mehr Khan, Nur Khan and Ahmad Khan was tried under sections 148, 302/149 and 307/149, P.P.C. by the Sessions Judge Mianwali who vide judgment dated 17th December, 1984 acquitted Ahmad Khan co‑accused but convicted the others including the present petitioner under sections 302/34 and 307/34, P.P.C. The petitioner was awarded death sentence plus fine under section 302/34, P.P.C. Murtaza Khan, Mehr Khan and Nur Khan were awarded sentence of life imprisonment plus fine each under section 302/34, P.P.C. All of them including the petitioner were also convicted under section 307/34, P.P.C. and each of them was sentenced to 7 years' R.I. plus fine. The sentences were to run concurrently. On appeal except for the petitioner whose convictions and sentences under sections 302 and 307, P.P.C. recorded by the trial Court were maintained, the others were acquitted. Learned counsel took us through certain portions of the impugned judgment in which in paragraph 18 it is recorded as follows: "The defence version which was suggested to the above eye‑witnesses in their cross‑examination was that on the day of occurrence the cattle of Alam Sher PW strayed into the fields of Saifullah Khan appellant (petitioner) who rounded them up for taking them to the cattle pond. Alam Sher PW and Ghulam Muhammad deceased attacked Saifullah Khan appellant (petitioner). Ghulam Muhammad deceased fired a shot at Saifullah Khan appellant (petitioner) but it missed. Saifullah Khan appellant (petitioner) in self‑defence also fired a shot hitting Alam Sher PW and the deceased. Both the witnesses refuted the above suggestion." It is submitted that thereafter the learned Judges of the High Court formulated the question which required determination as to which of the two versions i.e. of the prosecution and the defence was more probable. Considering the said question they arrived at the following conclusion given in paragraph 21 of the impugned judgment: "On considering the two versions in juxtaposition coupled with the salient circumstances, it appears more probable that it was at the time of occurrence that the cattle of Alam Sher PW strayed into the field of Saifullah Khan appellant (petitioner) and on the objection of Saifullah Khan appellant (petitioner) an altercation ensued between the two during the course of which Saifullah Khan appellant (petitioner) fired from his firearm as a result of which Alam Sher PW and the deceased sustained injuries. Fateh Khan PW admitted in his cross‑examination that Alam Sher and the deceased had been fired at from a distance of 13 Karms. This distance explains the spread of the pellets causing four injuries to Alam Sher PW and one to the deceased. We are therefore inclined to accept the version suggested by the defence to the eye witnesses in their cross‑examination." Learned counsel argues that if the version suggested by the defence to the eye‑witnesses in the cross‑examination was accepted, then how could the conviction and sentence of the petitioner be sustained as in that view of the matter the petitioner had fired the shot hitting Alam Sher PW and the deceased in the exercise of his right of self‑defence. Leave is granted in this case to examine the question as to whether the petitioner had acted in the exercise of his right of self‑defence. N.H.Q/S-477/S Leave granted.