1972 PLP 189 (SCMR)

SAJJAD AHMAD, J.‑The petitioners, who are closely related inter se, were tried along with two others, namely, Raza Khan and Kachkol, for the murder of Sartaj, and for the attempted murder of P.. W. Sikandar. Raza Khan and Kachkol were acquitted, but the petitioners were convicted on both the counts of murder and attempted murder, and also, in addition, for having committed rioting with deadly weapons as members of an unlawful assembly. Each of the three petitioners was sentenced to trans portation for life for the murder of Sartaj, and sentenced to undergo rigorous imprisonment for a period of 3 years under section 307/34, P. P. C. for attempting on the life of Sikandar. An appeal preferred to the High Court was dismissed, leading to this petition for special leave to appeal. Sartaj, deceased, suffered a large number of pellet injuries mostly in his abdominal region. Sikandar escaped unhurt. The two petitioners were also found to have received pellet injuries. Hamidullah had a fire‑arm grazing wound on left foot 3" x 3/4" muscle deep. Khyberai had a grazing fire‑arm wound on left foot on lateral aspect. The learned counsel appearing for the petitioners, has referred us to the observations of the trial Judge as well as of the High Court; wherein they have accepted the prosecution version not without reservation, stating that the P. Ws. have not spoken the whole truth and their testimony is not free from exaggeration. Nonetheless, the story of the prosecution, as given by the eye witnesses, has been accepted on the ground that although they are relation witnesses, they do not bear any enmity to the petitioners to implicate them on a capital charge. The ultimate conclusion of the learned Judges of the High Court, on their analysis of the evidence, is that both sides had come prepared to have a trial of strength, and in the circumstances neither party was entitled to the right of self‑defence. The learned counsel for the petitioners has submitted that the blame lay on the complainant side for having opened the attack on the petitioners, as the complainant party had been offended a short time earlier by the refusal of the petitioners to refund their loan. We are of the opinion that if the complainant party had come to the spot with the set design of opening fire on the petitioners in anticipation of their visit to the bazaar, the latter would have suffered a much more severe grief and not escaped with just one pellet injury each. It was for the petitioners to prove the plea of self‑defence if they wanted to avail of it‑ from the circumstances of the occurrence or from the prosecution evidence. The sole basis on which this plea is urged, appears to be the two injuries suffered by the two petitioners, which are not explained by the prosecution, but that, in our view, is not enough to uphold the contention of the learned counsel, and that the aggression lay with the complainant party. We are of the opinion that both the Courts below have, on a correct appraisal of the evidence, come to the conclusion rightly that the three petitioners between themselves in furtherance of their common intention, were responsible for causing the death of the deceased and also for ineffectively firing at Sikandar. No substantial reason has been disclosed to persuade us to re‑assess the evidence by re‑opening this case, and we reject the prayer for leave to appeal. The petition is dismissed. Leave refused.