1990 PLP 425 (SCMR)

Ss.302 & 304, Part 1--Constitution of Pakistan (1973), Art.] 185(3)--Accused alleged to have pelted stone on the deceased which hit on his forehead--Other blows were inflicted on deceased while he was lying and were landed on his forearm and leg--Such blows were not on vital part of the body but proved fatal- Nobody was present to save the deceased from the accused--Accused if had intention to kill deceased he could have easily delivered blows on the vital parts of the body as well--Accused had the knowledge that the injuries so inflicted to deceased could cause his death--Held, acquittal of accused from charge under S.302, P.P.C. and his conviction under S.304, Part 1 by High Court were based on sound reasons--Petition for leave to appeal dismissed. Sh. Shaukat Ali, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner. Nemo for Respondents. Date of hearing: 4th March, 1989. S.USMAN ALI SHAH, J.--The respondent Murid Ahmad was tried by the Sessions Judge, Khushab under section 302, P.P.C. for the murder of his real brother Mian Ahmad on a dispute of cutting a `beri' tree. Ultimately, the Sessions Judge found him guilty of the offence, convicted him under section 302, P.P.C. and sentenced him to life imprisonment with fine of Rs.10,000 or in default of payment to suffer further R.I. for two years. He was also given the benefit of section 382-B, Cr.P.C. He filed appeal against his conviction and sentence, whereas Mst. Zainab petitioner herein (wife of the deceased) filed criminal revision for enhancement of his sentence from life imprisonment to death. The learned High Court acquitted the accused from section 302, P.P.C. but convicted him under sectiori304, Part-II of P.P.C. and sentenced him to 10 years R.I. with fine of Rs.10,000 or in default of payment to undergo further R.I. for two years. He was directed to pay compensation of Rs.5,000 to the heirs of the deceased. He was also given the benefit of section 382-B, Cr.P.C. The criminal revision of the petitioner was dismissed, vide impugned judgment. Hence this petition for leave to appeal. We have gone through the impugned judgment and heard the learned counsel for the petitioner. In this case Murid Ahmad respondent had killed his real brother Mian Ahmad. The learned counsel for the petitioner urged that charge against the respondent No.2 under section 302, P.P.C. had been fully proved and there was no reasonable ground for the High Court to acquit him from the charge under section 302, P.P.C. and convict him under section 304 Part-1, P.P.C. On a careful examination of the relevant portion of the judgment of the High Court, we find ourselves in agreement with the view taken by it. The question is whether the accused had the intention to kill his real brother or he had the knowledge to do so. The respondent No.2 is alleged to have pelted stone on the deceased which hit on his forehead. The other blows which he inflicted on him while he was lying, were landed on his forearm and leg, which according to the medical evidence were not on vital part of the body but proved fatal. The evidence shows that there was nobody around him to save the deceased from the accused. If he had the intention to kill him, he could have easily delivered blows on the vital parts of his body as well. Thus, it is obvious that the accused had the knowledge that the injuries so inflicted to the deceased can cause his death. Thus, the reason recorded by the High Court, acquitting the accused from the charges under section 302, P.P.C. and convicting him under section 304 Part-I, P.P.C. and sentencing him as such is based on sound reasons. Under the circumstances, we are of the opinion that this petition has no force, which is accordingly dismissed and leave to appeal is refused. M.A.K./Z-71 / S Petition dismissed.