1996SCMR482 (PLP)

Ch. Muhammad Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner (in Cr. P. No. 40 of 1994). Nemo for the State (in Cr. P. No. 22 of 1994). Date of hearing: 23rd April, 1994. SAIDUZZAMAN SIDDIQUI, J.‑‑‑By this consolidated judgment we propose to dispose of abovementioned two criminal petitions which are directed against the judgment of Lahore High Court dated 22‑12‑1993, confirming the conviction and sentences awarded to the petitioners in Cr.P.L.A. No.22 of 1994 in a case under section 302/307/323/34, P.P.C. and dismissing the Criminal Revision Application filed by the petitioner in Cr.P.L.A. No.40 of 1994 for enhancement of the sentences of the petitioners in Cr.P.L.A. No.22 of 1994 under section 302/34, P.P.C. (For the sake of convenience, I will hereinbefore refer in this judgment the petitioners in Petition No.22 of 1994 as 'the convicts' and the petitioner in Petition No.40 of 1994 as 'the complainant' only). The convicts were tried by the Sessions Judge, Attock for committing murder of one Muhammad Ishaq and for launching murderous assault on complainant. The convicts were found guilty of the offence under section 302/34, P.P.C. and they were awarded life imprisonment and fine of Rs.10,000 or in default of payment of fine to undergo R.I. for three years. It was ordered that 1/4th of the fine, on recovery, be given to the legal heirs of the deceased as compensation. One of the convicts, namely; Sualiheen, was also found guilty under section 323, P.P.C. and was sentenced to 6 months' R.I. and fine of Rs.800 with further direction that in default of payment of fine he will suffer further R.I. .for 2 months. The fine, on realization, was ordered to be paid to the complainant by way of compensation. On appeal, the High Court by judgment dated 22‑12‑1993 maintained the above conviction and sentences of the convicts and dismissed the Criminal Revision Application filed by the complainant in the case for enhancement of the sentences of the convicts under section 302/34, P.P.C. The convicts as well as the complainant have sought leave to appeal against the above judgment of the High Court. According to the prosecution, the incident took place on 9‑11‑1982 at about 3‑30 p.m. in Mauza Tajabaja, District Attock, near Qutba More which is stated to be at a distance of about five miles from Police Station Hazro. At the relevant time the complainant Amir Afsar, who was a student of 2nd year in Government Degree College, Attock, was coming on foot after attending the celebrations of Iqbal Day in his college. When he reached near the land of one Sher Afzal he saw his uncle Muhammad Ishaq (deceased) coming alongwith bullock‑cart loaded with manure. When the deceased reached near the sugar‑cane field of one Miskeen Shah, the convicts emerged from the field. Convict No.l (Sualiheen) was armed with hatchet while convicts Nos.2 and 3 were armed with spears. Convict No.3 raised ' Lalkara' that the deceased should not be spared and in consequence thereof the convicts gave number of injuries on various parts of the person of the deceased with their respective weapons, as a result thereof he fell down on the ground. Complainant Amir Afsar when tried to intervene and save his uncle, was also caused injuries by petitioner Sualiheen with reverse side of the hatchet on the head and near his right ear and back of right ear. On alarm raised by, the complainant, Muhammad Rafiq son of Banaras Khan (P.W.10) and Muhammad Rafiq` son of Ahmad Khan (given up P.W.) were attracted 'to the spot who also witnessed the incident. The convicts on seeing the P.Ws. fled away from the scene alongwith their respective weapons. The motive for the murder was alleged to be criminal case between the parties. Deceased Muhammad Ishaq succumbed to his injuries in the hospital while Amir Afsar complainant was examined by the doctor and treated for the injuries suffered by him. The medical evidence in the case shows that the deceased suffered as many' as 13 injuries out of which 3 injuries were abrasions, one contused wound, 7 incised wounds and one stab wound. Injuries Nos.4, 7 and 9 which were incised wounds, were declared by the doctor as grievous injuries and dangerous to life while rest of the injuries were described as simple injuries. It was also opined by the doctor that except injuries Nos. l, 2 and 11 all other injuries were caused by sharp‑edged weapon while injuries Nos. l, 2 and 11 were caused by blunt weapon. Injured P.W. Amir Afsar was found to have suffered 3 injuries which were caused by blunt weapon and were declared as simple injuries. Both, the trial Court as well as High Court, found ocular testimony in the case as confidence inspiring which also found corroboration from the recoveries of the crime weapons on the pointation of the convicts and accordingly the convictions and sentences awarded by the trial Court were upheld by the High Court. The learned counsel for the convicts while assailing the judgment of High Court contended that the medical evidence in the case did not support the ocular testimony' inasmuch as according to the prosecution, convicts Nos.2 and 3 were allegedly armed with spears while only one stab wound was found on the person of the deceased. It is also contended by the learned counsel for the convicts that the statement given by convict No.3 Muhammad Taj, under section 342, Cr.P.C. was not properly considered by the learned Judges of the High Court, which according to the learned counsel was more in consonance with the facts of the case and should have been preferred as against the prosecution story. After hearing the learned counsel for the convicts we find that neither the Courts below have misread the evidence on record nor there is any infirmity in the reasoning given by the two Courts below in holding the convicts guilty of the offence under sections 302/34, P.P.C. and 323, P.P.C. The numbers of injuries suffered by the deceased clearly show that the participants in the offence were more than one person. The learned counsel for the convicts made an attempt to show that the incised wounds suffered by the deceased could not have been caused by a spear and the fact that the deceased had suffered only one stab wound goes to show that the statement made by respondent No.3 under section 342, Cr.P.C. that he alone participated in the incident was more nearer to the truth. We have gone through the statement of the doctor in the case and find that in his examination‑in‑chief he has clearly stated that injuries Nos.3 to 10 and 13 were caused by sharp‑edged weapon while injuries Nos. l, 2 and 11 were caused with blunt weapon. In cross‑examination he further stated that these injuries could be caused by Chhuri' knife or spear or such type of light sharp?edged weapon. The learned counsel for the petitioners is unable to demonstrate that the above statement made by the doctor was not in conformity with any statement contained in any book of medical jurisprudence or that for any other reason, the statement could not be believed by the two Courts below. As earlier observed by us, petitioner No.3 claimed that he caused injuries all alone to the deceased but both the Courts below have reached the conclusion that the injuries were caused by more than one person and this conclusion reached by the 2 Courts below is neither perverse nor contrary to the evidence on record. We, therefore, find no substance in Criminal Petition No.22 of 1994 which is, I accordingly dismissed. The other petition, namely; Criminal Petition No.40 of 1994 has been filed by the complainant Amir Afsar with the prayer that leave to appeal may be granted against the judgment of the learned Judges of the High Court dismissing the Criminal Revision Application filed by him for enhancement of the sentences a of the respondents. The petition is barred by 79 days. The reasons given by the complainant for not filing the appeal against the rejection of Revision Application are stated in the application for condonation of delay as under:‑‑ "(3) That the petitioner was away in connection with his business at Karachi and where he fell ill and admitted before the private practitioner Doctor for 2 months and after fully recovered the health of the petitioner came at Rawalpindi on 1‑3‑1994; (4) That the petitioner was informed by his counsel that the case has been decided by the Hon'ble High Court so I rushed to the High Court premises apply for certified copy of the judgment to the Copying Branch the same day. (5) That the petitioner does not know about time filing petition before the Hon'ble Supreme Court of Pakistan. The petitioner thought that six days is filing petition before the Supreme Court. (6) That the delay is not intentional but due to the reasons beyond the control of the petitioner. " The above reasons given by the petitioner for condonation of delay are not convincing and no case for condonation of delay has been made out. Even otherwise, we find that the 2 Courts below keeping in view the circumstances of the case rightly awarded lesser punishment to the respondents under section 302/34,, P.P.C. No case for interference with the order of the High Court is made out. Both the petitions are, accordingly, dismissed. N.H.Q./S‑916/S ???????????????????????????????????????????????????????????????????? Leave refused.