1990 PLP 1279 (SCMR)

M. Nawaz Abbasi, Assistant Advocate‑General Punjab and Rao M. Yousaf Khan, Advocate‑on‑ Record for the State. Date of hearing: 7th March, 1990. ABDUL QADEER CHAUDHRY, J.‑‑Leave to appeal is sought against the judgment of the Lahore High Court dated 13‑6‑1987 whereby the conviction of the respondents was altered. .

2. The facts, in brief, are that a case was registered against the respondents at the Police Station Noor Shah, District Sahiwal, for the murder of Jalal deceased on 21‑12‑1982 at about 10 a.m. According to the prosecution, Wali Dad complainant and his younger brother Jalal deceased were going to their Dhari from their house. When they reached near the house of Ahmad accused, both the respondents came there. Noor Ahmad was armed with a Phaura while Ahmad had a stick. Ahmed raised a Lalkara that Jalal should not be spared upon which Noor Ahmad gave a Phaura blow on the head of Jalal as a result of which he fell on the ground. Wali Dad raised alarm and tried to rescue his brother but he was given two stick blows by Ahmed accused. The occurrence was witnessed by Khan Muhammad (P.W. 9) and Dulley Khan (not produced). Jalal was taken to the hospital where he was got admitted. The motive for the offence was that about 30/35 years ago an uncle of the accused persons had murdered the maternal -uncle of the complainant. He was convicted and executed. The parties were on inimical terms with each other on that score.

3. After the usual investigation, the accused were challaned in the Court. At the trial, the prosecution relied on the ocular evidence, the evidence of motive and the evidence of recoveries. Noor Ahmed respondent when examined under Section 342, Cr.P.C. put up a plea that the deceased had first attacked him with a hatchet and caused injuries on his forehead and while he was trying to give another blow, he caused injuries to the deceased in exercise of right of self defence. The trial Court by means of judgment dated 22‑4‑1984 found both the accused guilty 'under Sections 302/34, P.P.C. and 307/34, P.P.C. and convicted both of them accordingly. With regard to the offence under section 302/34, P.P.C., Noor Ahmad accused was awarded the sentence of death and Ahmed accused was sentenced to imprisonment for life. Each of them was ordered to pay fine of Rs.20,000 or in default thereof to suffer R.I. for three years. In addition, each of them was ordered to pay compensation of Rs.10,000 to the legal heirs of the deceased and in default thereof to suffer six months' R.I. With regard to the offence under section 307/34, P.P.C., each of the two accused was awarded three years' R.I. and fine of Rs. 1,000, in default of which each of them was to suffer six months' R.I.

4. The respondents Nos.l and 2 being aggrieved, filed an appeal in the Lahore High Court and the matter was also scrutinised for the confirmation of death sentence under section 374, Cr.P.C. The learned Division Bench of the Lahore High Court vide judgment dated 13‑6‑1987 altered the conviction of Noor Ahmad accused under section 302, P.P.C. to one under section 304, Part II, P.P.C. and sentenced him to 7 years' R.I. and fine of Rs.20,000 in default of which he was to suffer two years' R.I. Out of the fine, Rs.15,000 were ordered to be paid as compensation to‑the heirs of the deceased. Benefit of section 382‑B, Cr.P.C. was also allowed to the respondent. His conviction under section 307/34, P.P.C. was set aside. The conviction of Ahmed respondent under Section 302, P.P.C. was set aside while his conviction under section 307, P.P.C. was altered to one under section 323, P.P.C. and his sentence was reduced to R.I. for one year.

5. We have heard the learned counsel for the petitioner. He contended that the learned High Court has not correctly scrutinised the evidence on record. The High Court has believed the presence of both the eye‑witnesses at the time of the occurrence and accepted that they had given the correct version. The injury to the deceased was given on vital part of the body therefore, there was no justification for altering the conviction of the two respondents. The learned High Court has misread the evidence.

6. We have considered the arguments of the learned counsel. The motive as alleged by the prosecution was disbelieved by the High court for the sound reasons. According to the prosecution, about 30/35 years back an uncle of the accused persons had murdered Nawab a maternal‑uncle of the complainant and the deceased. He was prosecuted and punished for death and for that reason, the parties were inimical to each other. It cannot be believed that the accused persons had nourished their motive for such a long time in spite of the fact that they were residing in the same vicinity and had the chance to attack the complainant and the deceased. There is no allegation that during these 30/35 years the accused persons had committed any criminal act. Therefore, the High Court has rightly disbelieved the motive. As regards the ocular testimony, the High Court has considered the case of the prosecution and defence in juxta‑position and then came to the conclusion that it was a sudden fight and there was no motive to take the life of the deceased. In coming to this conclusion, the High Court has observed as hereunder:

"From the facts and circumstances of the case, it appears that the assault on the deceased was committed on a sudden quarrel without pre meditation, and it was the individual act of Nur Ahmad appellant. Wali Dad complainant, who was following the deceased at a distance of ten Karams, stated that he had seen the accused quarrelling with Jalal deceased. He could not tell what was precisely the cause for the quarrel and stated that the "quarrel was that we had long‑standing enmity between us." In view of our observations made heretofore while dealing with the question of motive, we are not inclined to accept this so‑called long‑standing enmity as the cause for the quarrel. It appears that something happened at the spur of moment resulting in a sudden quarrel during which Nur Ahmad appellant gave a blow to the deceased with Phaura which was already with him. Phaura is an agricultural implement. Had there been a pre‑arranged plan to kill the deceased, the accused would have come armed with such weapons as are generally used for making the assault. Nur Ahmed accused did not repeat the blow, although he could conveniently strike the deceased again before the arrival of the eye‑witnesses. The deceased succumbed to his injury three days after the occurrence. In the circumstances, the intention to kill cannot be attributed to Nur Ahmed accused:"

7. There was only one injury on the person of the deceased. The accused had not repeated the attack. The High Court has assessed the evidence and considered the plea advanced by the accused. It cannot be said that the High Court has made departure in assessing the evidence on record. The judgment of the High Court is neither perverse nor capricious. Therefore, we do not consider it a fit case for appraisal of the evidence afresh. Leave to appeal is refused and the petition is dismissed. N.H.Q./W‑85/S Petition dismissed.