1989SCMR713 (PLP)

SHAFIUR RAHMAN, J.--Allah Ditta, the complainant in a case lodged by him against the respondent lftikhar Hussain Shah and his cousin Kazim Shah vide F.I.R. No.75, Police Station Shorkot, District Jhang dated 30th of May, 1979, seeks leave to appeal against the judgments of the Lahore High Court dated 1-10-1984, whereby Iftikhar Hussain Shah, respondent was acquitted of the charges under section 302/307/34, P.P.C. and his convictions under section 302, P.P.C. in Criminal Petition No.350 of 1984 and under section 13 of the Arms Ordinance in Criminal Petition No.351 of 1984 were set aside by the High Court.

2. The prosecution case against the respondent and his associate Kazim Shah was that on the 30th May, 1979 at about 11-00 a.m. when Said deceased, a son of the complainant Allah Ditta, was on his way to cut fodder, was attacked by the respondent who was armed with a Revolver and his companion who was armed with a Lathi . The respondent Iftikhar Hussain Shah allegedly fired thrice hitting Said only once and when Said fell injured, Kazim gave him.Wo Lathi blows. Riaz P.W.7 a grandson of Allah Ditta rushed from the vicinity and gave a Sota blow to Iftikhar Shah who was given two Lathi blows by Kazim Shah. Thereafter Iftikhar Shah and his companion escaped from the scene. Said died at the spot. A report of the occurrence was lodged by Allah Ditta at the Police Station at 1-00 p.m. During the course of investigation Iftikhar Hussain Shah on the 5th of June, 1979 led to his house and got recovered a Revolver Exh. P.5 with three crime empties and three live cartridges in its chamber which was taken into possession. Dr. Munawar Hussain Chaudhry, P.W.1 found on autopsy a fire-arm oval shape wound on the dead body of Said and two contusions and an abrasion. Riaz P.W.7 had an abrasion on the forehead. The respondent Iftikhar Hussain Shah had a lacerated wound on the head, a contusion on the shoulder and an abrasion on the back of right hand. From the accused side, Mureed Abbas was found to have six injuries and Tabarrak Hussain Shah three injuries.

3. The respondent put forward a counter-version pleading that the cattle of the deceased had trespassed into his crop and damaged it. He wanted to take them to the cattle-pond but complainant party picked up a row over it and in that Said received a Sota blow. When he was returning from his field to his house he was attacked by the deceased and his rel4tives one of whom Ameer had a pistol and they all attacked him. About the manner in which the occurrence took place he stated as follows:- "At that time Amir son of Hidayat was armed with a pistol. He fired two shots at me but luckily I was saved. Tabarrak Hussain Shah, in order to save me, gave a Sota blow to said Amir, as a result of which the pistol fell down. Said deceased was giving Sota blows to me at that time. I picked up that pistol and in order to save my life I fired one shot at the deceased. Had I not done so, I would have been killed at the spot. Tabarrak Hussairt Shah and Murid Abbas, who had come to save me, were also injured by Said and his relatives."

4. The trial Court, it appears, did not apply the correct principles in appraising the prosecution case and the plea of the respondent. This will appear clearly from the reasoning given by the trial Court which are reproduced in its own words hereunder:- (i) "Actually there is no need to discuss the veracity of these witnesses or the merit of their testimony for the incident is not denied by the accused even. What is to be examined is as to in what manner had the incident " taken place whether the version given by the accused fits in the facts and circumstances of the case or the one put forth by the prosecution sounds plausible and acceptable." (ii) "The version of the accused before the police was not exactly like that there he had owned the pistol to be already in his possession and he had named as companions of Saeed deceased, Murad and Ahmad and Rashid sons of Hidayat and Riaz son of Rashid who were all armed with Sotas . Actually in his first statement made before the police he had taken up the brief plea that he had fired at Saeed in order to save his own life and had not caused him fatal injuries intentionally and with a pre meditation. An injury had been suffered by Iftikhar Shah accused on his right hand with a blunt weapon which fact would demonstrate that the other party had caused him this injury to make the pistol fall from his right hand." (iii) "Actually if so many persons, all armed with Lathis, had gone to attack Iftikhar Shah, there was no reason why he should have escaped with three simple injuries. Thus, the version of the accused seems to be a fabrication and the injuries received by Tabarrak Hussain Shah and Murid Abbas Shah appear to be manufactured ones." (iv) "However, the crime empties secured from the spot have been found to match with pistol, Exh. P.5, the recovery of which had been made at the instance of Iftikhar Shah accused. This is a very valuable corroborative piece of evidence and links the accused with the commission of crime and in fact Iftikhar Shah himself admits to have made use of the pistol in firing at the deceased.

5. What the trial Court omitted in appraising the evidence was that two live cartridges Exh.P.8/1-2 were collected from the spot and taken into possession and not the three crime empties. The empties were recovered along with the Revolver and therefore, their matching could not be of avail to the prosecution. Similarly the statement of the accused made before the Police could not be taken into consideration for incriminating him. Where there are two versions of the occurrence, the one given by the prosecution and the other by the accused, the veracity of the witnesses had to be tested, and prosecution case to be found not only plausible but proved beyond reasonable doubt. 6.Necessarily the learned Judge in the High Court had to reappraise the entire evidence and he came to the conclusion that the defence version was plausible and the prosecution version was not free from reasonable doubt. The reasons given were that the occurrence had taken place on the path from the house of the accused to his fields. We find that there was no field of the complainant party in the vicinity, that injuries to other associates of the respondent were suppressed and the injury attributed by the complainant to Kazim Shah was not found there. The motive was also there for the complainant party to attack the respondent rather than for the respondent to attack the complainant. Besides, we find that if the accused were already armed with a revolver or pistol and had come out to attack it would have been difficult, if not impossible, to give them blows with a Lathi either before or after one had fired the shot because it would not have been possible for any one to come so close.

7. We find that the questions raised by the learned counsel relate to appraisal of evidence and no provision or principle of law has been violated by the a High Court in undertaking the same. The recovery of the Revolver and its possession by the respondent has been found to be suspect. Hence leave to appeal is refused in both the matters. MA.K./A-409/S Leave refused.