1969 PLP 599 (SCMR)

Tassaduque Hussain, Senior Advocate Federal Court (S. A. Karim, Advocate Federal Court with him) instructed by V. H. Naqvi, Attorney for Appellants. Abdul Aziz Khan, Advocate‑General Punjab (C. M. Sharif, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent. Date of hearing : 27th April 1953. AKRAM, J.‑This is an appeal with our leave by the three appellants, Khushi Muhammad and his two sons, Muhammad Shafi and Muhammad Sharif, who were convicted and sentenced to death by the Additional Sessions Judge of Gujrat, for inflicting upon their co‑villager a number of lathi blows which resulted in his subsequent death. An appeal from the said conviction and sentence was taken to the High Court of Judicature at Lahore, but the conviction was upheld and only the sentence of death passed on Khushi Muhammad was reduced to that of transportation for life ; the sentences of death passed on Muhammad Shafi and Muhammad Sharif were confirmed under section 374, Cr. P. C. In the present appeal before us counsel for the appellants urged that the inference of a common intention to cause death was unjustified in the absence of any direct or circumstantial evidence to show previous concert or arrangement as between the appellants. Reliance in this connection was placed upon the judgment in the case of Mahbub Shah v. King Emperor (L R 721 H 148) ; but intention is mental condition and has often to be gathered from the facts and the surrounding circumstances of the case. One cannot always expect direct evidence to be forthcoming on a matter of this nature. The High Court in its judgment has observed as follows :‑ "But the fact that the deceased was pursued in a determined manner by these three accused from Chah Nawan till he was felled down in the village at a distance of some 332 karams from the well, indicates that after the altercation, these three appellants did form a common intention to cause such bodily injuries to the deceased as were likely to cause his death and they had no justification for incurring that risk. As many as five injuries were inflicted on the hand of the deceased, two of which were grievous in character and caused an extensive fracture of his skull." We see no good reason to interfere with the conclusion arrived at by the High Court. Regarding the question of sentence, however, it has been pointed out to us that the act was not a premeditated one; that the appellants "carried sticks which villagers ordinarily have with them" that the incident was the outcome of a sudden frenzy which had developed in the course of a mutual assault ; that for the same offence Khushi Muhammad has been sentenced to transportation for life. There seems to be a modicum of substance in the above submission, but the question of quantum of punishment is for the consideration of the Executive Authorities ; the sentence being a legal sentence, it is not for this Court to interfere with it. The appellants, if so advised, may seek for relief in proper quarters. We dismiss the appeal. Appeal dismissed.