SHER ALI vs THE STATE
This matter concerns a review petition filed by Sher Ali against a Supreme Court judgment that upheld his conviction and death sentence for murder. The petitioner, along with co-accused Gul Nawaz, was convicted for the murder of Fazal-ur-Rahman and causing injury to a prosecution witness, Shirin Jan. While the appellate court had previously commuted the death sentence of the co-accused, Gul Nawaz, to life imprisonment on the basis that he did not fire at the deceased, the petitioner's death sentence was maintained due to direct evidence of his involvement in the fatal shooting. The core legal question was whether the petitioner's conviction and sentence warranted review in light of the evidence presented. Upon re-examining the testimony of the eye-witness, Shirin Jan, the Court found that the evidence clearly established the petitioner's role in firing at the deceased, distinguishing his culpability from that of the co-accused. Consequently, the Court held that the previous findings were sound and dismissed the review petition, affirming the original conviction and sentence.
- Does the evidence of an eye-witness identifying a specific accused as the shooter justify maintaining a death sentence while commuting the sentence of a co-accused?
- Can a review petition be dismissed if the findings of the original judgment are based on consistent eye-witness testimony?
- Is a delay in filing a review petition excusable when the matter involves a death sentence?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
ORDER
MIAN BURHANUDDIN KHAN, J.-This petition is barred by time by 61 days but as it involved the death sentence awarded to the petitioner, the delay is A condoned.
2. The petition is directed against the judgment of this Court, dated 14-12-1982 whereby Criminal Appeal 63 of 1979 filed by the present petitioner Sher Ali was dismissed.
3. Sher Ali, petitioner, alongwith Gul Nawaz and Mir Nawaz absconder, had been charged for the murder of Fazal-ur-Rahman and during the same incident Shirin Jan P.W. Also sustained gun-shot wound on 11-2-1976 at about 3 p.m. In the limits of village Begokhel, District Bannu. Sher Ali and Mir Nawaz were charged for effectively firing at the deceased. Gul Nawaz was charged for firing at Shirin Jan, Sher Ali and Gul Nawaz were both sentenced to death under section 302/34, P.P.C. And a fine of Rs, 1,000 or in default, to one year R. I. ; and were also awarded 7 years' R. I. Under section 307/34, P.P.C. And a fine of Rs, 500 or in default, six months' R. I. Their appeal was dismissed by the High Court on 22-3-1978. Leave was granted vide order of this Court dated 2-5-1979.
4. After hearing the Appeal No, 63 of 19.79 it was held that Gul Nawaz did not fire at the deceased in spite of the fact that he was equally armed like the other accused and instead he had fired a shot at Aida Jan P.W. Thus, he was not directly responsible for the death of Fazlur Rahman deceased, and, therefore, his death sentence was altered to imprisonment for life and a fine of Rs, 10,000, or in default, to suffer 5 years' R. I. And another sum of Rs, 1,000 as compensation under section 544-A, Cr. P.C. Or in default to six months' R. I.
5. It was held in the order sought to be reviewed that there is a direct charge against petitioner for having effectively fired at the deceased, and, B therefore, his case is distinguishable from that of Gul Nawaz. Consequently the death sentence awarded to Sher Ali petitioner, was upheld.
6. We have gone through the evidence and find that the finding by this Court are based on the evidence of eye-witness Shirin Jan who had lodged the report in the case in the Police Station, Lakki Marwat. In this report it was stated that Mir Nawaz and Sher Ali both fired at the deceased Fazalur Rahman, he rushed towards his brother-t be deceased when Gul Nawaz fired at him injuring him on his right elbow. The same is the statement of this witness at the trial. Having relied on this statement, we find no force in this Review Petition which is, accordingly, dismissed.