1989 PLP 1157 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal is barred by 8 days and is directed against the judgment of the Lahore High Court, Lahore, dated 13th October, 1986 whereby the conviction of Muhammad Waryam and Muhammad Iqbal respondents was altered from one under section 302, P.P.C. to that under section 304, Part II, P.P.C., and sentence of each was reduced from death to ten years' R.I. plus fine. Briefly the facts are that the two respondents were tried for an offence under section 302/34, P.P.C. and the trial Court convicted them under the aforesaid sections and sentenced each of them to death plus fine. On appeal of the convicts their conviction was altered and the sentence reduced as stated above. The deceased in this case is Wali Muhammad. The occurrence took place at 6 p.m. on 16th November, 1981 in the area of village Kassowal. The F.I.R. was lodged on the same day after some time. The respondents were arrested two days later. Danda was recovered from Muhammad Iqbal respondent and hatchet was recovered from Muhammad Waryam respondent. The eye witnesses are Muhammad Bakhsh complainant‑petitioner, Kabir and Sikandar. The motive is that Mst. Nuran wife of the deceased who was also sister of the respondents left the house of her husband who had refused to let the minor son Allah Bakhsh to accompany Mst. Nuran. The deceased went to bring her back but she would not go. She insisted on the restoration of her son which the deceased had refused to do. According to the medical evidence the deceased had 12 injuries in the form of contusions. He had been severely beaten up with blunt weapon. The findings of the High Court are that the ocular testimony was supported by the medical evidence and motive etc. but the reason for altering the conviction and sentence given is that Muhammad Waryam respondent by refraining to use the hatchet from its sharp‑edged side did not intend to cause death of the deceased but in the circumstances of the case both the respondents only intended to give beating to him. It was on the basis of this reasoning that the High Court proceeded to make the offence fall within the purview of section 304, Part II, P.P.C. instead of section 302, P.P.C. and accordingly reduced the sentence awarded to the respondents. Learned counsel for the petitioner argued before us that the use of the blunt side of hatchet in a case of this nature would not be a good ground for altering the sentence while according to the medical evidence the injuries which led to the death of the deceased had been caused on the head. After hearing the learned counsel we condone the delay and grant leave in this case to examine the question whether it was not a case under section 304, Part 11, P.P.C. but a case under section 302, P.P.C. If the aforesaid two respondents have already undergone their sentence and released from jail then bailable warrants amounting to Rs.20,000 each with one surety in the like amount be issued against them to the satisfaction of District Magistrate concerned. If they have not yet been released and are undergoing their sentence, then they shall not be released until the disposal of this appeal. M.BA./M‑794/S Leave granted.