1989SCMR929 (PLP)

SHAD SAOOD JAN, J.‑‑The respondent, Shahmand alias Shaman, was convicted by the Additional Sessions Judge, Sahiwal, of an offence under section 302 of Pakistan Penal Code for causing the death of Shah Muhammad and was sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,

000. On appeal, a learned Single Judge of the Lahore High Court upheld the finding of the trial Court that the respondent was responsible for causing the death of Shah Muhammad but altered his conviction to one under section 325 of the Pakistan Penal Code and reduced his substantive sentence to rigorous imprisonment for a period of seven years. The petitioner, who is the son of Shah Muhammad, has x filed this petition for leave to appeal from the judgment of the High Court.

2. The post‑mortem examination of Shah Muhammad deceased reveals that he had received the following injuries:‑, (1) A lacerated wound 5 c.m. x 1 c.m. x bone deep on the left side of head 7 c.m. above the ear. (2) A lacerated wound 2 c.m. x 3 c.m. through and through on the left ear. (3) Multiple contusions with swelling in an area of 10 c.m. x 8 c.m. on the outer and upper part of the left neck. (4) An abrasion 1 c.m. x 1 c.m. on the right side of forehead. (5) A lacerated wound 1 c.m. x 1 c.m. x skin deep on the back and left side of head. (6) A lacerated wound 4 c.m. x 2 c.m. x muscle deep on the back and upper part of left forearm. Both the bones underneath were fractured. According to the doctor, the deceased had died on account of shock and internal haemorrhage resulting from injuries Nos.l and 6 and that these had been inflicted by a blunt weapon. He further opined that the injuries were collectively sufficient to cause death in the ordinary course of nature. It was the case of the prosecution that the respondent had struck the deceased with a Sota.

3. The learned Single Judge in the High Court observed that from the injuries found on the body of the deceased and the weapon used for inflicting them, the intention to kill could not be ascribed to the respondent. In this context, he observed:‑ "The intention can also be gathered from the weapon used and the acts done. The weapon of offence in this case was admittedly a Sota, which had been removed from a ;Phaura'. Phaura attached to the Sota would have been a very deadly weapon. It was an ordinary `Kikar' Sota with which the appellant chose to cause injuries. Except injury on the arm, none of the other injuries had caused any fracture. Although three injuries were found to have been caused on the head, but one of them was an abrasion while the other two were only skin deep. According to the doctor there was no fracture beneath injury No.1 which was the cause of death coupled with injury No.6. In the circumstances it is difficult to hold that the appellant had intention or knowledge to kill his own uncle:' Accordingly, he acquitted the respondent of the offence under section 302 but convicted him of the offence under section 325 of the Pakistan Penal Code.

4. In support of this petition it is contended that the learned Single Judge erred in holding that the injuries found on the person of the deceased did not indicate an intention to kill on the part of the respondent. Looking at the dimension of the injuries it would seem that the Sota used by the respondent was not a thin stick as would appear from the judgment of the learned Single Judge. The injuries were mostly located on the head and the neck. The deceased was 60/65 years at the time of his death. Taking into consideration the fact that the respondent had repeatedly struck an elderly person on the head and the neck, prima facie an intention to kill could be easily attributed to him. The learned Single Judge was therefore not right in acquitting him of the charge under section 302 of the Pakistan Penal Code. 5.The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted. Let a warrant of arrest, bail able in the sum of Rs.25,000, with two sureties in the like amount, returnable to the District Magistrate, Sahiwal, issue against Shahmand alias Shahmand respondent. M.Y.H./M‑757/S Leave granted.