1987 PLP 2039 (SCMR)

JAVID IQBAL, J.‑‑Leave to appeal is being sought against the judgment dated 3rd November, 1982 passed by a learned Single Judge of the Lahore High Court, Lahore in Criminal Appeal No.788 of 1979. The facts are that Mohammad Sarwar and Shaukat Ali petitioners were both tried for murdering Mohammad Yaqub and for causing injuries to Manzur Ahmad PW8 and Mohammad Shafi PW

10. The trial Court vide its judgment dated 31st May 1979 convicted Mohammad Sarwar petitioner under section 302, PPC and sentenced him to imprisonment for life plus fine whereas it convicted Shaukat Ali petitioner only under section 307 PPC and sentenced him to 5 years RI plus fine. In the High Court a learned Single Judge vide his judgment dated 3rd November, 1982 upheld the conviction in both the cases and also maintained the sentences awarded to both the petitioners. The occurrence took place at 6 p.m. on 12th September, 1978 in Mohallah Rahmanpura, Police Station Baghbanpura, District Gujranwala. The FIR was lodged at 8‑45 p.m. on the same day by Manzoor Ahmad PW uncle of the deceased. Both the petitioners were arrested on 13th September 1978. At the instance of the petitioners human blood‑stained Khanjar and hatchet were recovered. Mohammad Sarwar petitioner is stated to have carried the Khanjar whereas Shaukat Ali petitioner was armed with a hatchet. The prosecution produced three eye‑witnesses of the occurrence out of which two are injured namely Manzur Ahmad and Mohammad Shafi PWs. Mohammad Shafi PW is Phupha of the deceased. The third witness Mohammad Mansha PW.9 is first cousin of the deceased and he has not been relied upon. Manzur Ahmad PW had one simple injury on his person caused with a sharp‑edged weapon whereas Mohammad Shafi PW had one simple injury caused with blunt weapon. The motive is that there existed business rivalry between the parties but the immediate cause of the occurrence was that Shaukat Ali petitioner had snapped the kite of Mohammad Mansha PW. The prosecution version is that on the fateful day Mohammad Mansha PW aged 9/10 years was flying a kite from the roof of his house. Shaukat Ali petitioner snapped it whereupon the deceased went and complained to Mohammad Sarwar petitioner brother of Shaukat Ali petitioner. Since already there was background of business rivalry between them, Mohammad Sarwar petitioner started hurling abuses at the deceased who abused in return. Thereupon Mohammad Sarwar petitioner went inside his house and came out with a Khanjar in his hand accompanied by Shaukat Ali petitioner armed with a hatchet, both of them raising Lalkaras. On hearing alarm Mohammad Salim (not produced) and Mohammad Shafi PW were attracted to the spot. Muhammad Sarwar petitioner gave a Khanjar blow on the chest of the deceased who fell down. Thereafter when Manzur Ahmad PW advanced forward to save him Shaukat Ali petitioner gave him a hatchet blow which fell on his forehead. Mohammad Shafi PW also tried to intervene and in the process suffered an injury. Thereafter the accused party ran away. The deceased died before reaching the hospital. Learned counsel for the petitioners attempted to argue that this was a case of provocation and sudden fight as the deceased has hurled abuses at Mohammad Sarwar petitioner. We do not find any force in this argument of the learned counsel. The kite of the complainant side had been snapped by Shaukat Ali petitioner. The deceased had only complained to his brother Mohammad Sarwar petitioner. It was Mohammad Sarwar petitioner who started abusing him and when the deceased retaliated by returning the abuses, both the petitioners had attacked the deceased and the PWs. We have gone through the impugned judgment and the record. In our view no case is made out for re‑appraisal, of evidence. This petition is accordingly dismissed. M. I. /M‑202/S Petition dismissed.