1991 PLP 2268 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the complainant to examine whether the Lahore High Court by the impugned order dated 25‑6‑1984 correctly maintained the conviction of the two respondents Muhammad Nawaz and Sarfaraz under section 304, Part 11 of the Pakistan Penal Code, instead of under section 302, P.P.C.

2. The parties were not inimical to each other but they had a difference over the continued engagement of a carpenter in the village. On the 3rd of October, 1982, there had taken place on altercation between Rabnawaz and Abdullah deceased in which Rabnawaz had been injured by Abdullah deceased. The next morning, while Abdullah deceased was in his field, Muhammad Nawaz‑ brother of Rabnawaz Sarfraz, Gulab, Allah Bakhsh armed with Sotis came there while Sullah was empty handed. They called out and attacked the deceased Abdullah for the injuries that he had caused to Rabnawaz the earlier day. Muhammad Nawaz and Sarfraz gave a blow each on his head, Gulab a Sota blow on his leg and Allah Bakhsh on his back. Sullah gave fist and kick blow to the deceased.

3. Abdullah deceased went to the police station in injured condition and lodged a report about the occurrence at 6‑30 p.m. the same day, naming these persons for attack on him giving out the motive also. The respondents and their co‑accused denied the occurrence and their participation and alleged the case against them to be the result of enmity. The trial Court after the examination of the injuries received by him, the background of the dispute and the manner in which the occurrence took place came to the conclusion that it was not a case of common intention to cause the death of Abdullah, that the attack on him was made. The following facts were‑ taken into consideration by the trial Court for recording their conviction under section 304, Part 11, P.P.C.:‑

"(i) Two of the sticks recovered at least seem to have been broken from the tree on the way, the other two which were carried by Nawaz and Sarfraz were not capable of causing one fatal blow each. (ii) Injury No.l which proved fatal has not been specifically attributed to anyone of the accused. (iii) ...there was no outstanding enmity between these accused and the deceased." Reliance was placed on the decisions of Lahore High Court in Anwar and another v. The State (P L D 1965 Lah. 378) and Shah Muhammad v. The State (P L D 1970 Lah. 757) and these two respondents were convicted under section 304/34, P.P.C. and sentenced each to 8 years, R.I. and a tine of Rs.4,000 which if recovered was ordered to be paid as compensation to the heirs of the deceased.

4. The State filed an appeal against acquittal of one of the co‑accused (Sullah) and conviction under section 304, Part‑II, P.P.C. of others which was dismissed by the following observations of the High Court:‑

"There are set principles which justify interference in the judgment of acquittal or for awarding lesser sentences. Learned Law Officer has not been able to bring his case in any one of these principles. The appeal is accordingly dismissed."

5. A Petition for leave to appeal was filed against all the five accused but the petitioner having not seriously pressed in so far as Gulab, Allah Bakhsh and Sullah are concerned, leave to appeal was granted only against Muhammad Nawaz and Sarfraz.

6. After hearing the learned counsel for the appellant/complainant, we find that no interference in the order of the High Court and the trial Court is called for. In determining the nature of the offence committed, the trial Court has taken into consideration the gravity of the enmity existing between the parties, the immediate cause of the occurrence, the nature of the weapons used and the circumstances in which the occurrence took place. All these factors are relevant' for determining the nature of offence and extent of liability. The principles well recognised for the safe administration of criminal justice have been kept in view and the benefit whatever arising out of the situation and the evidence brought by the prosecution has been extended to the accused. In doing so no principle of law l has been violated.

7. The appeal is dismissed. The bail bonds are discharged. M.BA./K‑175/S Appeal dismissed.