MUHAM MA D ASLAM vs NAZIR alias NAJI AND 4 OTHERS

ORDER

' MIAN BURHANUDDIN KHAN, J.-By this petition leave is sought to appeal against the judgment and order of the Lahore High Court dated 18-11-1979 passed in Criminal Appeal No, 535 of 1978.

2. Nazir alias Naji, Muhammad Abbas, Siddique, Qurban and Muhammad Sharif (since dead) were charged for the murder of Faiz Ahmad. All the accused/respondents were convicted and sentenced to life imprisonment and fine of Rs, 2,000 in default, to 3 months' R. I. Each by the Additional Sessions Judge, Sahiwal vide judgment dated 8-5-1978. Against their conviction and sentence the four respondents filed appeal in the Lahore High Court and a learned Single Judge vide judgment dated 18-11-1979 acquitted all the accused. The complainant Muhammad Aslam has now filed this petition seeking leave to appeal against the judgment of the learned High Court.

3. According to the prosecution one Hasan, brother of Abbas and Siddiq accused, was murdered two years prior to the present occurrence and Faiz Ahmad, deceased, alongwith others, was charged for his murder. On the day of occurrence i. e. 23-4-1973 at about 7-30 a. m. The deceased Faiz Ahmad, who was on bail in the murder case of Hasan, was proceeding to attend the Court in that case, alongwith Muhammad Aslam, petitioner. Both were riding a bicycle and were going along the canal bank followed by Chiragh Din, P. W. (not produced) and Muhammad Jamil, P. W.

12. When they reached near Burji No, 116, they were fired at from the northern hank of the canal. The deceased Faiz Abmad and Muhammad Aslam jumped from the bicycle and ran for shelter. They saw Sharif, accused (since dead) and Siddique getting up from behind the bushes on the southern bank of the canal. The two accused fired at Faiz Ahmad who was hit in his abdomen. The deceased, who was carrying a double barrel gun of Chiragh Din, fired in return which hit Sharif accused who died on the spot. Thereafter, it is alleged that the other accused/respondents Nazir, Abbas and Qurban came, crossed over to the southern side of the canal, and fired at Faiz Ahmad deceased from close quarter as a result of which Faiz Ahmad also died on the spot. The accused then lifted the body of Muhammad Sharif accused and went away from the spot.

4. Learned counsel for the petitioner contended that the judgment of the learned High Court Judge is based on misreading of evidence ; holding that there is conflict between the medical evidence and the ocular testimony. To substantiate his argument the learned counsel urged that Faiz Ahmad deceased had received 20 gunfire injuries some of which were caused from close range as there was burning and charring around the injuries. This proves that the injuries on the person of the deceased Faiz Ahmad were, firstly, caused from a distance, and after he was incapacitated, the assailants approached him and fired more shots. The injury on the abdomen, it was further argued, would not have completely disabled the deceased so as to render him unfit to fire in self-defence with his gun. This was also the opinion of the doctor who performed the post-mortem examination.

Hence, the finding of the learned Judge that the deceased Faiz Ahmad died instantaneously and, therefore, he could not have fired in self-defence, is based on misreading of the medical evidence.

It was further contended that the finding of the learned High Court Judge regarding the nature of injuries on Faiz Ahmad deceased, were caused by pellets is also contradicted by the recovery of two 7 mm. Empties from near the place where the deceased was lying dead and two empties from across the canal would show that the other accused namely Nazir and Siddiq had used rifles in the commission of the offence and the medical evidence does not belie this statement of the P. Ws. As the doctor had not made any categorical statement excluding the injuries on the deceased having been caused by rifle bullet.

5. We have gone through the evidence, with the assistance of the learned counsel for the petitioner, and have also considered the judgment of the learned High Court. We find that the finding of the learned Judge is based on proper appraisal of the prosecution evidence. It is admitted fact that Muhammad Sharif accused died from the side of the accused party during the same transaction.

He had one fire-arm wound of entrance 2" outside the left nipple ; one fire-arm wound of entrance below the left nipple ; one fire-arm wound of entrance 3" below left nipple and another similar wound 5' outside the left nipple and twenty-eight fire-arm wounds of entrance scattered in an area of 13" x 9' extending from tip of left shoulder to 3" below the crease of left elbow on the outer side of left upper arm. All this indicates that he was fired at and hit by more than one and it cannot be accepted that the deceased Faiz Ahmad, having sustained gunfire injuries, would have been able to fire himself in self-defence. It appears, in the circumstances of this case, that there was a chance encounter between the parties because both the parties were proceeding to the Court in connection with the murder of Hasan, and during this sudden encounter they fired at each other. It cannot be believed that the other accused, who were accompanying Muhammad Sharif, and were as stated by the prosecution, armed with 7 mm. Rifles would have left the companion of Faiz Ahmad deceased unharmed when they had actually laid in ambush. We find no merit in this petition which is, consequently, dismissed.