1. HAMOODUR RAHMAN, C. J.-The petitioner was put up for trial along with his uncle Fazal Elahi under section 302/34, P. P. C. For the murder of two persons in the fields of Maira Nowshera.
2. The trial Court acquitted Fazal Elahi but convicted the petitioner on two counts under section 302, P.
3. P. C. And sentenced him to death. On appeal and reference, a Division Bench of the Peshawar High Court has dismissed the appeal and confirmed the sentence of death.
4. The petitioner now seeks special leave to appeal.
5. Learned counsel appearing in support of the petition has contended that the High Court has erred in law in holding that the plea of self-defence could not be raised as an alternative plea after a plea of alibi had failed. This is not the ground on which the learned Judges of the High Court rejected She plea of self-defence. The plea has been rejected, because it was felt that there was in this case no provocation of such a grave nature as to cause any apprehension of death or grievous hurt to the petitioner from persons who were empty-handed.
6. Besides the petitioner never raised any plea of alibi in his examination under section 342, Cr. P. C. In fact, the evidence is that the petitioner was not there originally when the quarrel took place between Taza Gut and Fazal Ehahi, the uncle of the petitioner, during which fist blows were also exchanged. They were separated by Subhanuddin (P. W. 8), Fazal Elahi went towards his own field while the others towards their kotha. After the separation, the petitioner arrived there with a shot- gun from Risalpur side and then at the bidding of his uncle Fazal Elahi first fired at Wali Gut and then at Quresh Gut when the latter came there to protest.
7. On these facts, the prosecution version given by two witnesses and in the two dying declarations of Quresh Gut, one recorded at the police station and the other nearly an hour later at the hospital by the doctor which has been found to be reliable, clearly showed that the petitioner fired deliberately at the bidding of his uncle. This is not a case in which can be said that the petitioner fired to save his uncle finding him being overpowered by the deceased. Actually the fighters had been separated and they were going away each his own way when the petitioner arrived and opened fire.
8. This was not a case of any grave or sudden provocation. The petitioner had not seen his uncle being beaten. He could not, therefore, claim that he acted under grave and sudden provocation.
9. The High Court has, therefore, right in holding that the plea of self-defence was not available to the petitioner.
10. His presence had been amply established upon the prosecution evidence.
11. Learned counsel says that the oral testimony of the two witnesses should not have been accepted, because, one of them was not named in the first dying declaration and the other was not named in the second dying declaration. Not only the value of the dying declarations themselves, it is urged, was diminished by this contradiction but it also rendered the ocular testimony of the witnesses doubtful. In the circumstances the High Court, it is said, was wrong in relying upon the dying declarations, merely because they both charged the present petitioner as the person who fired the fatal shots.
12. We have examined the evidence of the eye-witnesses with the assistance of the learned counsel and perused the dying declarations. In the first dying declaration it has been mentioned that other persons also came but in the second dying declaration it has been said that Subhanuddin was near him when he protested against the killing of Wali Gut. The dying declaration does not say that none of the other witnesses was there. There is no contradiction, therefore, either between the two dying declarations themselves or between them and the ocular testimony.
13. Out of the eye-witnesses Tama Gut (P. W. 11) was the father of the deceased Wali Gut but Subhanuddin (P. W. 8) was not related to either side. The only suggestion made to him was that he was giving evidence in this case, because, Quresh Gut, one of the murdered persons, had given evidence in his favour in a fight which he had with one Safdar and Mokammil Shah, sons of Abdul Halim, on an earlier occasion. He denied the suggestion, but no effort was made by the prosecution to show what connection Safdar or Mokammil Shah or their father Halim had with the petitioner. No enmity against the accused ha3, therefore, been suggested so far as this witness is concerned.
14. On this evidence, we are of the view that the High Court has rightly come to the conclusion that the guilt of the petitioner had been established beyond any reasonable doubt.
15. This petition is, accordingly, dismissed.