1989 PLP 1268 (SCMR)

JAVID IQBAL, J.‑‑Both these criminal petitions namely Criminal Petition for Leave to Appeal No.240 of 1985 and Criminal Petition for Leave to Appeal No.241 of 1985 are connected and therefore these are being taken up together. Both these petitions are directed against the same judgment of the Lahore High Court, Lahore, dated 7th April, 1985 whereby conviction of Muhammad alias Mamma respondent was altered from under section 302, P.P.C. to section 304, Part I, P.P.C. and his sentence of death was altered to ten years' R.I. plus fine. His conviction under section 323, P.P.C. and sentence thereunder were set aside and revision petition filed by the present petitioner against the acquittal of three co‑accused was dismissed. Thus Criminal Petition No.240 of 1985 seeks enhancement in the case of Muhammad alias Mamma respondent of his sentence even if section 304, Part I, P.P.C. was to be kept in tact, whereas Criminal Petition No.241 of 1985 seeks setting aside the acquittal of the three co accused of Muhammad alias Mamma namely Mali, Falak Sher and. Lala respondents. Briefly the facts are that Muhammad alias Mamma and A aforesaid three acquitted co‑accused were tried for offences under section 302/307/34, P.P.C. and vide judgment of the trial Court Muhammad alias Mamma respondent was convicted under section 302, P.P.C. and sentenced to death plus fine. He was also convicted under section 323, P.P.C. and sentenced to one year's R.I. plus fine. His other three co‑accused were acquitted. Muhammad alias Mamma respondent appealed and the High Court altered his conviction and sentence as stated above, whereas it dismissed the revision against acquittal c I the three co accused, filed by the petitioner. The deceased in this case is Muhammad Abdullah and the injured person is Sher Muhammad. The occurrence took place at Peshiwela on 17th November, 1981 in Village Kot Lala, District Jhang. F.I.R. was lodged by the petitioner who is real brother of the deceased at 7‑20 p.m. on the same day. From Muhammad alias Mamma respondent and his three other companions Sotas were recovered but none of them was blood-stained. Therefore, recoveries are of no corroborative value. There are two eye‑w.(nesses of the occurrence namely the present petitioner and Sher Muhammad, both real brothers of the deceased. According to the medical evidence the deceased had received two injuries with blunt weapon one on the head and the other on the left shoulder. The head injury proved fatal as he died in the hospital. Sher Muhammad had three injuries caused with blunt weapon but simple in nature. The motive set up by the prosecution is that Lala respondent brought his buffaloes for grazing in the land of the petitioner who told him to take away his buffaloes. Lala respondent took away the buffaloes holding out a threat. On the same day after some time vi‑en the deceased and the petitioner were cutting paddy in their field while Sher Muhammad was bringing his cattle towards the field for grazing the respondents armed with Sotas attacked them. The head injury was received by the deceased at the hands of Muhammad respondent. The findings of the High Court are that it was a case of two versions and that the two rival versions should have been placed in juxtaposition by the trial Court to arrive at a proper conclusion regarding the truth or falsity of one or the other. The High Court after carefully perusing the record and assessing the evidence in the case of the two versions arrived at the conclusion that the injuries had been received by the deceased and Sher Muhammad during the occurrence but since there was no independent corroboration to connect the three co accused with the common intention of crime, their acquittal was quite proper and on this point the judgment of the lower Court was upheld. In respect of Muhammad alias Mamma respondent the High Court arrived at the conclusion that his own admission connected him with the killing of the deceased and injuries to Sher Muhammad P.W. However, the finding is that in the circumstances of the case the possibility could not be ruled out that the cattle involved in the case might have been rounded up by Muhammad alias Mamma respondent for taking them to the cattle pound and this being snatched by the deceased and Sher Muhammad, became the immediate cause of the occurrence as Sher Muhammad P.W. was passing his cattle through the vacant land of the accused side. It was in this background that the conviction of Muhammad alias Mamma respondent was altered from under section 302, P.P.C. to section 304, Part I, P.P.C. and his sentence of death was reduced to ten years R.I. plus fine. Learned counsel for the petitioner attempted to argue before us that the prosecution version was the correct version and it should have been relied upon. His reasoning is that in the attack not only Muhammad alias Mamma respondent but the three acquitted co‑accused had also participated but we do not find any force in these arguments of the learned counsel. After perusal of the impugned judgment and the record, in our opinion no interference is called for in the impugned judgment of the High Court. The result is that both criminal petitions, namely, Criminal Petitions for Leave to Appeal Nos. 240 and 241 of 1985 are here dismissed. Criminal Petition No.241 of 1985 in any case is barred by 16 days, and in the absence of any sufficient cause for condoning the delay, the petition is also' B dismissed on that ground. A.A./M‑822/S Petition dismissed.