ALAM SHER Versus STATE
This criminal appeal challenged the Lahore High Court's judgment upholding the appellants' conviction and sentences under Section 302/34 of the Pakistan Penal Code 1860 for murder. The prosecution alleged that the appellants attacked the deceased, Ismail, due to prior enmity, with one appellant stabbing him and another acting in concert. The appellants denied the charges, with one appellant asserting a plea of self-defence, claiming he acted after the deceased fired at him. The Supreme Court reviewed the evidence, including ocular testimony and the recovery of a blood-stained knife. The Court affirmed the lower courts' findings, holding that the defence version was inconsistent with the medical evidence and the physical circumstances of the incident. Specifically, the Court found the self-defence plea implausible given the nature of the injuries and the mechanics of the attack. Consequently, the Supreme Court dismissed the appeal, finding no merit in the challenge to the concurrent findings of the trial court and the High Court regarding the appellants' guilt.
- Can a plea of self-defence be sustained when it is contradicted by the medical evidence and the physical circumstances of the crime?
- Is the appellate court justified in dismissing an appeal where the trial court and the High Court have concurrently appreciated the evidence and found no merit in the defence version?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
1. ABDUL KADIR SHAIKH, J. ‑‑This appeal, by leave, is directed against judgment of Lahore High Court dated 10‑10‑1983 by which an appeal filed by the two appellants herein was dismissed, and in result conviction recorded against them by the Additional Sessions Judge, Faisalabad, under Section 302/34, P.P. C. and the sentence of life imprisonment and fine of Rs.10,000 imposed upon them were upheld.
2. The prosecution story, in brief, is that Ismail (deceased), brother of Amir Ali, the first informant, went on a bull‑cart alongwith Mathela to the house of his father‑in‑law, Muhammad, to fetch cots which he had got prepared for the marriage of his sister. Ismail had taken a rifle with himself as due to enmity with appellants, he ,apprehended danger from them. As he did not return till 11 a.m., Amir Ali went out to enquire about his whereabouts. He saw his brother coming alongwith Mathela on the bull‑cart which was loaded with cots. Suddenly, the two appellants and their brother Shahamand came from behind and attacked Ismail. It is said that while Alam Sher appellant took Ismail into Japha, Ismail in order to rescue himself from the grip fired his rifle which hit a she‑donkey which was moving about in the Bazar. Ahmad appellant who was armed with knife stabbed Ismail with the result that the victim fell down. Shahamand co‑accused who was acquitted by the High Court is said to have snatched rifle from Ismail and gave a blow with the butt of the rifle on the head of Ismail. The culprits then ran away as Amir Ali, Mathela, Gehla and Abdullah rushed to the spot.
3. The motive for the crime stated was that Mst.Fateh Bibi sister of Ismail (deceased) was given in Nikah to Alam Sher but Rukhsati had not yet taken place. Afterwards, relations between the parties got strained, and Ismail compelled Alam Sher appellant to divorce his sister. Due to this, Alam Sher was annoyed. In addition, it is said that Alam Sher and his party‑men had killed three cattle‑heads of Ismail by administering poison to them, and the dispute was referred to Panchayat with the result that Alam Sher and his party‑men had to pay Rs.15,000 as compensation to Ismail.
4. At the trial, the prosecution examined Amir Ali and Abdullah as eye‑witnesses, who fully supported the version of the incident stated in the FIR which has been mentioned above. In addition to the ocular testimony, reliance was placed on the circumstantial evidence of recovery of blood‑stained knife from the house of Ahmad appellant at his instance, which according to the Chemical Analyser's report was stained with human blood.
5. Appellants denied the prosecution case. Ahmad appellant, however, gave the version of the incident as under:‑
6. "At the time of occurrence, I was going to my house with fodder loaded on she‑ass and when I reached near the Dera of Gehla Lumberdar the deceased fired at me from behind and luckily I was saved and the bullet hit my she‑ass. I looked back and under sudden and grave provocation and in exercise of right of self‑defence of person and property, I gave blow on the chest of the deceased with plain sickle and the deceased fell down. None of the P.Ws. was present at that time. I am innocent."
7. Learned Additional Sessions Judge who tried the case believed the prosecution version as to the ocular as well as the circumstantial evidence, and he rejected the defence plea set up by Ahmad appellant for several reasons mentioned by him in the judgment.
8. On appeal at the instance 'of the convicts, learned Judge in the High Court on re‑appraisal of the prosecution case fully agreed with the views that prevailed with the learned trial Judge and dismissed the appeal so far as appellants were concerned. Learned Judge, however, gave benefit of doubt to the co‑convict Shahamand, brother of the appellants and acquitted him of the charges.
9. Leave to appeal was granted by this Court on a joint petition filed by the appellants, through jail, to re‑appraise the prosecution evidence, particularly with regard to the defence version set up by Ahmad appellant.
10. After having gone through the record of the case, we find that no exception can be taken with the view that prevailed with the learned trial Judge and the learned Judge of the High Court as to the evidence produced by the prosecution in support of the charges levelled against the appellants.
11. With regard to the defence plea set up in the case, learned Judge in the High Court has observed as under:‑----
12. "With this assessment of the prosecution evidence when the same is considered in juxta‑position with the version put forth by Ahmad appellant, the facts which come to light are that the injuries found on the person of the deceased do not find proper explanation in the statement of Ahmad appellant. According to him, he had attacked the deceased after he was fired at, from a distance of 40 yards, going with the she donkey. Firstly it does not seem possible to believe that a person armed with sickle only could have run from a distance of 40 yards to attack a person armed with rifle who has already fired a shot which had hit the she‑donkey. The other thing is that the deceased in that case would have been better placed as even if it is to be granted for the sake of argument that the rifle had no other bullet in its chamber, he could, if not had succeeded in hitting the appellant, could have easily warded off the attack by sickle, which is a very small weapon, as compared to the rifle. The injuries found on the dead body of the deceased with a sharp‑edged weapon, could not have been caused by a sickle. Thus, the explanation regarding the injuries of sharp‑edged weapon by Ahmad appellant is lacking much, what to say of blunt‑weapon injuries on the dead body of the deceased, regarding which he has not stated anything and about which it can be safely assumed that they could not have been caused with a sickle. One of the injuries on the head by a blunt‑weapon had done much damage, and according to the opinion of the doctor, this injury was sufficient individually in ordinary course of nature to have caused death of the deceased, but even ignoring this fact, the other thing is that according to the doctor, the she‑donkey was fired at from back side, which means that while the deceased was going towards north, the she‑donkey was going, or was being taken towards south. In that case it can be assumed that the two must have crossed each other. If the deceased had to fire, he would have done it while the owner of the she‑donkey was coming in front of him or while he was passing by.
13. For the reasons enumerated above, no doubt is left in my mind that the plea advanced by Ahmad appellant does not inspire confidence nor does it advance the case of the appellants in any manner."
14. We whole‑heartedly agree with his views and find no merit in this appeal. It is accordingly dismissed.
15. M.Y.H./A‑194/S Appeal dismissed.