1971 PLP 647 (SCMR)

MUHAMMAD YAQUB ALI, J.‑This will dispose of Petitions for Special Leave to Appeals Nos. 178 of 1967 and 182 and 221 of 1969. The first petition by Fazal Elahi is directed against the order of the High Court dated the 23rd May 1967, dismissing Criminal Appeal No. 295 of 1967 filed by the State and Criminal Revision No. 580 of 1967 preferred by the petitioner against the acquittal of Ali Azmat, respondent, of the charge ‑under section 302 read with section 34, P. P. C. for the murder of his son Nazir Ahmad. Criminal Petition No. 182 is by Habib Khan against the order of the High Court dated the 25th March 1969, dismissing the appeal preferred by him from his conviction under section 302, P. P. C. and sentence to transportation for life for the murder of the aforesaid Nazir Ahmad. Petition No. 221 is also by Fazal Elahi calling in question the award of lesser sentence to Habib Khan for the aforesaid offence. Fazal Elahi, petitioner, has a workshop in Dhok Ratta, a suburb of Rawalpindi. Across the lane is the Ihata of the accused and in between runs a public sewer. On the morning of the 28th May 1966, Fazal Elahi, petitioner, and Nazir Ahmad, deceased, raised the bank of the sewer on their side with the result that the sullage water overflowed towards the Ihata of the accused. While the petitioner and the deceased were still busy in raising the embankment the accused came there and protested. This led to a quarrel in the course of which Ali Azmat, respondent held the deceased in his arms while Habib Khan, his brother, took out knife from the fold of his shalwar and gave a blow with it on the side of the deceased. Habib was disarmed of the knife by one of the eye‑witnesses whereupon both the accused ran away. The learned Judges in the Courts below concluded that Ali Azmat had quarrelled with the deceased without knowing that his brother Habib Khan was armed with a knife and will cause an injury with it to the deceased. The element of common intention on the part of Ali Azmat was, therefore, eliminated and Ali Azmat was acquitted. As to the sentence awarded to Habib Khan the circumstances in which the occurrence took place made out that there was no premeditation on the part of Habib Khan which justified the lesser sentence of transportation particularly as only one blow was given and there was no attempt to repeat the injury to the deceased or to assault Fazal Elahi, petitioner. Both the petitions by Fazal Elahi have, therefore, little force. The petition by Habib Khan, respondent, for leave to appeal against his conviction has likewise little substance. He admitted that the deceased received the fatal injury at his hand. It was, however, claimed that the deceased was holding knife and wanted to attack him with it whereupon he thrust his hand back and it resulted hand in the fatal injury to the deceased. The plea was, on its face, false and rightly rejected by the Courts below. The medical evidence showed that the deceased suffered an injury two inches deep which cut the peritoneum; the intestines and the mesentary through and through. The shirt and the jacket which the deceased were wearing also bore corresponding cuts. The injury was thus caused by a deliberate and forceful blow and did not result from a mere push of the hand of the deceased. All the three petitions are, accordingly, dismissed. Leave refused.