1988 PLP 487 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal has been filed by Ghulam Mustafa petitioner and is directed against the judgment of the Lahore High Court, Lahore dated 20th November, 1983 whereby the convictions as well as sentence awarded to Rashid Javid respondent were altered: The background is that Arshad Javid respondent alongwith three others was tried under section 302/34, P.P.C. for the murder of Muhammad Asif but the trial Court vide its judgment dated 5 May 1981 only sentenced Arshad Javid respondent to death plus fine under section 302, P.P.C. whereas it acquitted the co-accused. On appeal by Arshad Javid convict before the High Court his conviction was altered to section 304, Part I, P.P.C. and sentence was altered from death to ten years' R.I. plus fine. The deceased in this case as stated is Muhammad Asif. The occurrence took place at 2-30 p.m. on 25 July, 1980 in Hakim Sharif Street, Daska. Ghulam Mustafa petitioner lodged F.I.R. and he is maternal-uncle of the deceased. Arshad Javid respondent was arrested on 28 July, 1980 and at his instance was recovered human blood-stained Chhuri. The recovery has been relied upon. There are three eye-witnesses of the occurrence namely Ghulam Mustafa (petitioner) and Ghulam Murtaza both maternal-uncles of the deceased as well as Umar Din. The motive is that the present occurrence took place due to a fight between children. The prosecution version is that sister of the present petitioner namely Mst. Safia Begum had an adopted son called Shahid, who picked up a quarrel with Afzal son of Sabir and this Afzal is brother of Riaz Ahmad acquitted co-accused. The noise attracted the deceased as well as Mst. Safia Begum. The prosecution version further is that after exchange of abuses the parties were separated. Arshad Javid respondent and Muhammad Riaz acquitted co-accused left threatening with dire consequences. Thereafter at 2-30 p. m. on the same day when the deceased was proceeding to the house of Mst. Safia Begum, respondent Arshad Javid who was armed with a Chhuri alongwith his acquitted co-accused attacked the deceased. The deceased received a Chhuri blow in his abdomen and consequently died in the hospital. The reason why the Lahore High Court, Lahore altered the conviction and sentence of the aforesaid respondent is that the analysis of the evidence in this case revealed that the two separate incidents were not probable and that only one incident or occurrence took place between the parties. However it had been split into two incidents in order to introduce premeditation. The conclusion of the High Court is that over the children's fight a sudden fight ensued in which Arshad Javid respondent received an injury at the hands of the deceased and in retaliation he inflicted the solitary fatal blow to the deceased. Learned counsel for the petitioner attempted to argue that since the said respondent was carrying a Chhuri, the murder was premeditated because he should have not been expected to carry a Chhuri. The Chhuri is stated to be one foot long including the handle, which may have been carried by Arshad Javid respondent. In any case another view of the appraisal of evidence may be possible but this would not be a good ground for interference. In that view of the matter in our considered opinion no case is made out for the grant of leave. The petition is therefore dismissed. S.Q./G-61/S Petition dismissed.