1990 PLP 1048 (SCMR)

Date of hearing: 10th January, 1990. ABDUL SHAKURUL SALAM, J.‑‑‑Muhammad Akhtar alongwith two others, was tried under section 302/34, P.P.C. for the murder of Abdul Sattar alias Kala by the learned Additional Sessions Judge, Multan, who vide his order dated 5‑2‑1984 found the petitioner guilty under section 302 PPC and sentenced him to death subject to confirmation by the High Court and also to pay a fine of Rs.10,000 half of which was to be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. and in default of payment of the fine to suffer rigorous imprisonment for a period of three years. The other two co- accused were acquitted giving them the benefit of doubt. The convict Muhammad Akhtar filed Criminal Appeal No. 28 of 1984 against his sentence and Reference for confirmation of the sentence of death bore Murder Reference No. 54 of 1984. Both the matters were taken up by the learned Division Bench of the Lahore High Court, Multan Bench, Multan, and found that the incident had taken place suddenly as a result of quarrel and convict appellant had no intention to commit murder. His conviction under section 302, P.P.C. was set aside and he was found guilty under section 304, Part I, P.P.C. and sentenced to 10 years' rigorous imprisonment plus a fine of Rs.3,000, in default thereof to suffer rigorous imprisonment for one year. The complainant‑petitioner, father of the deceased, has applied for leave to appeal against the said judgment of the High Court and for restoration of the order of the learned trial Court. The learned counsel for the petitioner has contended that the learned Courts below erred in law in disbelieving the ocular evidence corroborated by the recovery of the blood‑stained knife P 5 on the pointing of the accused respondent. The defence plea was that accused‑respondent had acted in self‑defence as the deceased had attempted to hit him with a knife and he in order to save himself from the second attempt picked up a knife from a nearby fruit‑cart, gave a single blow to the deceased. He also filed a detailed statement Ex. D. 3 and produced three witnesses. The learned Division Bench of the High Court has re‑appraised the entire evidence on the record. The location of the occurrence deposed to by the eye‑witnesses was found to be in conflict with the documentary, evidence contemporaneously prepared i.e. the inquest report and by its author. Presence of the eye‑witnesses at the place of occurrence was not accepted. Interest and past animosity were accepted. The learned counsel for the petitioner has not pointed out any legal or other defect in the appraisement of the evidence of the prosecution. The finding in juxtaposition with the defence that the incident had taken place suddenly and, in fact, is a chance encounter is unexceptionable. The deceased was a desperado and was involved in criminal cases as admitted by his. father, the complainant. Therefore, we find no legal infirmity in the order of the learned Division Bench of the High Court in setting aside the conviction under section 302, P.P.C. and convicting the accused‑respondent under section 304, Part 1, P.P.C. He has been sentenced to rigorous imprisonment for 10 years plus a fine of Rs.3,000, in default thereof to suffer rigorous imprisonment for one year. The fine if realized shall. be paid to the heirs of the deceased. Since it was not so mentioned, except with this modification, the judgment of the High Court calls for no interference. The petition is, accordingly, dismissed. N.H.Q./A‑691/5 Petition dismissed.