1985 PLP 1820 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This petition arises out of F.I.R. lodged by petitioner with Mirwah Police Station, District Khairpur on 12‑5‑1977 about the murder of his nephew Gul Sher. According to petitioner, he and Gul Sher were cultivating their land on the day of incident when a flock of sheep entered their sugarcane cultivation and started damaging the crop They collected the sheep for taking the animals to the cattle pond, but in the meanwhile Ali Dino and Lal Dino came and called upon them to leave the sheep. On their refusal, Ali Dino gave Lathi blows to petitioner and Lai Dino attacked Gul Sher with his hatchet. By this time, however, P.Ws. Ghulam Muhammad, Sodho and Nazul came running and intervened, where after the assailants left for their village with the sheep. Gul Sher injured was taken to the hospital for treatment, but he died on the following morning. Petitioner who was also injured in the incident went to lodge report of the crime at the Police Station soon thereafter. At the trial, the prosecution case was sought to be supported by the ocular testimony of petitioner and the eye‑witnesses Ghulam Muhammad, Sodho and Nazul. P.Ws. Hussain flux and Gul Bahar who were informed of the incident soon after the occurrence took place were also produced as witnesses in corroboration of the ocular testimony. The prosecution also relied on the recoveries of weapons of offence from the accused soon after their arrest. Learned Sessions Judge, Khairpur who tried the case held both tire accused guilty under section 302/307/34 and section 24 of the Cattle Trespass Act, and whereas he sentenced Ali Dino accused to imprisonment for life, he awarded death sentence to Lal Dino accused. The accused were also awarded certain sentences of jail and of fine. On a joint appeal filed by the convicts, and on reference of the death sentence imposed on Lal Dino, learned Judges of the Division Bench of Sind High Court held that on the facts and circumstances proved in evidence, Ali Dino cannot be held guilty on the murder charge on the ground of vicarious liability under section 34 of the Pakistan Penal Code and he, therefore, acquitted him of this charge, and also altered his conviction under section 307/34, P.P.C. to one under section 323 of the Pakistan Penal Code and awarded him one year's rigorous imprisonment thereunder. The conviction of Lai Dino accused was upheld under section 302 of the Pakistan Penal Code but the death sentence imposed upon him was reduced to life imprisonment was, however, acquitted of the charge under section 307/34 of the Pakistan Penal Code. The convictions of both the accused under section 24 of the Cattle Trespass Act were maintained. Petitioner being aggrieved by the acquittal of Ali Dino accused of the charge under section 302/34 of the Pakistan Penal Code and also under section 307/34, P.P.C. and in the case of Lai Dino accused, of the reduction of sentence under section 302, P.P.C. and also of acquittal under section 307/34, P.P.C., has filed this petition seeking that the judgment recorded by the learned Sessions Judge be upheld. After having heard the learned counsel for the petitioner in support of the petition, we are clearly of the view that the appraisal of evidence made by the learned Judges in the High Court does not offend any provision of law or well‑settled principles so as to justify interference by this Court. The basic questions on the arguments addressed by the learned counsel are whether the mischief of section 34, P.P.C. on the facts and circumstances proved in tire case was attracted so far as the charge under section 302, P.P.C. against Ali Dino accused is concerned, and also whether the offence under the charge under section 307, P.P.C. against both the accused full under section 323, P.P.C. against one only, namely, Ali Dino. The learned Judges on re‑appraisal of the evidence‑ have given findings in this' behalf which are in accord with well‑settled principles. There is, therefore, no merit in this petition. It is dismissed. M.I. Petition dismissed.