1984 PLP 678 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑This Petition by Sattar Khan petitioner/ complainant is directed against the acquittal .of Yousaf Khan and Yaqoob Khan, and for enhancement of the sentence of Rashid Khan.

2. The facts, briefly, are that Rashid Khan respondent was tried along with his father Yousaf Khan and his uncle Yaqoob Khan for the murder of Ali Aksar. The learned trial Judge acquitted the two co‑accused of Rashid Khan but convicted him under section 302, P. P. C. for which he was sentenced, inter alia, to imprisonment for life. On appeal the High Court altered his conviction from 302, P. P. C. to one under section W4‑I, P. P. C. and sentenced him to 4 years' R. I., plus a fine of Rs. 2,000 (or one year's R. I. in default). Criminal Revision of Sattar Khan complainant for the enhance ment of the sentence of Rashid Khan was, however, dismissed by the High Court. Hence the present petition by Sattar Khan complainant.

3. Motive for the occurrence, according to the prosecution was that Yousuf Khan respondent suspected the deceased of having illict relations with Mst. Kaneez Begum his (Rashid Khan's) wife. A quarrel had also taken place between the parties 6/6 months prior to the incident as a result of which counter‑case had been got registered by the parties against each other. It is alleged that on 25‑6‑1977 at 5‑30 p.m. when Sattar Khan complainant (P. W. 8) was coming, alongwith him son Ali Aksar (deceased), from the Sadar side to his house, the above‑named accused came out. Rashid Khan and Yousaf Khan were armed with chhuris while Yaqoob Khan was empty‑handed. Yaqoob Khan raised a lalkara and caught hold of Ali Aksar while Rashid Khan and Yousaf Khan gave one chhuri blow each to the deceased. Akbar Khan P. W. 9, Akram Khan P. W. 10 and Khawas Khan P. W. 11, were attracted to the spot on the noise and witnessed the occurrence. It is alleged that Yaqoob Khan threw stones at the witnesses one of which fell on the head of Akbar Khan (P. W.) causing him an injury. The accused, thereafter, left the place of occurrence. Ali Aksar died as a result of the injuries received by him. The F. I. R. was lodged by his father Sattar Khan complainant, at police Post R. A. Bazar, at 7 p. m.

4. During the investigation the accused were arrested and chhuris (P. 5) and (P. 6) were recovered from Rashid Khan and Yousaf Khan accused, respectively. The medical examination revealed two stab injuries on the deceased. Akhtar Khan (P. W. 9) was found to have one lacerated wound on his head.

5. At the trial the prosecution relied on the testimony of the above noted eye‑witnesses, i.e Sattar Than P. W. 8 (father of the deceased) ; Akbar Khan (P. W. 9) ; Akram Khan (P. W. 10) and Khawas Khan (P. W. 11); evidence of motive, recoveries and the medical evidence.

6. Yousaf Khan and Yaqoob Khan denied their participation in the occurrence. Rashid Khan respondent, however, admitted his participation and gave a different version which, briefly stated, was that the deceased had illicit relations with his wife; that a quarrel took place and litigation had started between the parties on this account; that at about 5‑00 p.m. on the day of occurrence, when he came to his house he found the deceased and his (Rashid Khan's) wife in an objectionable position. He abused the deceased who ran out and came into the street. Rashid Khan tried to catch hold of him, but the deceased who was armed with stick started beating him with it. He (Rashid Khan) thereupon picked up a chhuri from a nearby Rehri and in the exercise of right of self‑defence inflicted injuries on him. Akbar Khan p, W. 9 who was armed with a stick also gave him a blow with it. He (Rashid Khan) thereupon threw stones on Akbar Khan P. W. which struck and injured him. We have heard the learned counsel for the petitioner. He has not been able to urge anything in support of this petition. He only submitted that the defence version has not been fully proved because it is not supported by any corroboratory evidence. We, have therefore; ourselves gone through the impugned judgment and find that the learned High Court was justified to disbelieving them, inter alia, on the ground that they are closely related to the' deceased and there is serious hostility between the parties. Since the High Court has based his (Rashid Khan's) conviction solely on the statement of the accused which had to be accepted in its entirety. Considering the plea raised by the accused/respondent we feel that the High Court had rightly converted the offence to one under section 304‑1, P. P. C. In view of the fact that Ali Aksar (deceased), according to the prosecution itself, had illicit relations with the wife of Rashid Khan accused/ respondent the fact that the incident had taken place near the house of the respondent together with the defence version given by the aforesaid Rashid Khan accused respondent which appears to be correct, we feel that the High Court was justified in awarding him the sentence of 4 years' R. I. only. The petition is, therefore, dismissed as having no force. M. Z. M. Petition dismissed.