1972 PLP 425 (SCMR)

WAHEEDUDDIN AHMAD, J.‑Respondents Nos. 1 to 6 were challaned on the basis of F. I. R. No. 132 dated the 26th June 1969, under sections 302, 307/ 149 and 148, P. P. C. They were sentenced to 7 years' R. I. under section 304, Part 1/149, P. P. C. and to one year's R. I. under section 148, P. P. C. by judgment dated the 25th November 1970. Muhammad Khan son of Sarfraz Khan was further convicted to one year's R. I. under section 324, P. P. C. The respondents filed two appeals in the Lahore High Court, which were accepted by a learned Single Judge of the High Court, by a single judgment dated the 7th July 1971. The petitioner seeks permission to file an appeal against the said judgment. The prosecution case is that the respondents, who are inter related, bore grudge against Noor Khan deceased. About 15/20 days before the occurrence, Saifullah son of the deceased had beaten Pehlwan and Mehr Khan sons of Nawaz, brothers of Muhammad Khan accused son of Nawaz, regarding which a criminal case was pending. It is alleged that the respondents in order to avenge the beating given to Pehlwan and Mehr Khan, murdered Noor Khan on the 26th June 1969 at about 6‑15 a.m. In this connection it is alleged that deceased Noor Khan and his daughter Mst. Noor Fatima P. W. 10 were assaulted by the respondents in front of the house of the deceased. Muhammad Khan son of Sarfraz Khan, who was armed with a gun, fired at the deceased. The shot, instead of hitting him, hit his daughter Mst. Noor Fatima P. W.

10. She sustained a lacerated wound 1/4"x.1/4"x 1 " on the medial aspect of right forearm just below the elbow. Noor Khan thereafter was given blows by the respondents with their sticks. The first stick blow was given by Wazir Khan followed by Muhammad Khan son of Nawaz Khan. He received another blow on the head at the hands of Habibullah before he fell to the ground. The respondents, except Muhammad Khan son of Sarfraz Khan, showered more blows on him. The occurrence was witnessed by Bhai Khan P. W. 8 uncle of the deceased and Yaqub Khan P. W. 9, his brother. The deceased and, his daughter were removed to Police Station Saddar, Miawali and report, Exh. P. N. was lodged by the deceased at 9‑15 a.m. The prosecution case rested‑ (a) on the evidence of motive, (b) the dying declaration, Exh. P .M., and (c) the testimony of the three eye‑witnesses, including Mst. Noor Fatima, the injured. The case of the prosecution was accepted by the trial Court and the respondents were convicted. The High Court, on hearing the appeals, came to the conclusion that it cannot be believed that Muhammad Khan son of Sarfraz Khan, who had actually aimed his gun at the deceased, had accidentally hit the latter's daughter. Reference the hand of the deceased was caused by a blunt weapon. The High Court further held that the medical evidence does not support the alleged time of occurrence. The deceased was examined by the doctor in the first instance at 11‑00 a.m. and the duration of the injuries as given by the doctor was three to nine hours. On this evidence, the High Court came to the conclusion that the contention of the respondents that the occurrence had taken place in the early hours of the morning cannot be ruled out. The High Court also doubted the venue of occurrence. It further referred to the fact that the shirt on the person of Mst. Noor Fatima which was got blood‑stained, was not taken into possession by the police. The High Court further held that there are two sets of accused in the case who lived at different places and there is no evidences available on the point that they stayed for the night in village Shahbaz Khel with the other co‑accused or joined them early in the morning before the attack was made on the deceased. The High Court was further impressed by the fact that not a single disinterested person was available to support the prosecution case. Mian Qurban Sadiq Ikram, learned counsel for the petitioner, has contended that the High Court has been impressed by the fact that the venue of the occurrence was not the place where it was described. According to the learned counsel, blood‑stained earth was recovered from the place of occurrence. He referred us to the statement of P. W. 6 Umar Khan F. C. to show that one parcel of blood‑stained earth was given to him by Ghulam Hussain A. S. I. He also referred to the statement of P. W. 14 Ghulam Hussain to show that he inspected the spot and took into possession the blood‑stained earth vide Memo. Exh. P. D. and made it into a sealed parcel. The learned counsel further contended that Mst. Noor Fatima being an injured person, her statement should have been believed and the conviction of the respondents should have been upheld. After considering the contentions of the petitioners we are satisfied that the conclusion reached by the High Court cannot be considered to be perverse or so unreasonable that they could not be reached by a reasonable person. In our opinion, the High Court was wrong in holding that blood‑stained earth was not recovered from the spot. But this being not the only reason, we do not think that it will be proper to interfere in this matter on this ground. The High Court has given other reasons which are plausible. In these circumstances, we do not consider it a fit case for interference. The petition is dismissed. Petition dismissed.