P L D 1981 Supreme Court 243 (PLP)

MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 9-4-1979 of the Lahore High Court whereby an appeal and reference arising out of the decision in a murder case were disposed of. The learned Division Bench, while altering the conviction of Bashir Ahmad and Ismail, respondents, from 302/34 and 307/34, P. P. C. to 304, Part II and 323, P. P. C. respectively, reduced the sentences and awarded 7 years' R. I. to Bashir Ahmed under section 304, Part 11 and 1 year's R.1. to Ismail under section 323, P. P. C.

2. Habibur Rehman (complainant), the real brother of Ghulam Farid deceased, has challenged the judgment of the High Court with the prayer that the finding of guilty on charge of murder and attempted murder as also the sentence of death arid imprisonment for life awarded to the two respondents be restored.

3. According to the prosecution, Bashir Ahmed (respondent) had caused a solitary sota blow on the head of Ghulam Farid which resulted in latter's death, while Ismail caused a sota blow on the head of Zakir P. W. which resulted in a simple hurt. None of the respondents repeated the blow on either of the injured. Ghulam Farid expired on the following morning.

4. The findings with regard to the motive, intention and knowledge of the accused by the High Court were :-- "That from the evidence on the record it is difficult to ascertain what was the immediate cause of ,the occurrence or in other words - what was the precise motivation which induced the two appellants to attack the deceased and Zakir (P. W. 6) ; that it is a case where each appellant struck one blow only and that also to a different person ; that it was possibly not a premeditated attack and that most likely it was a sudden affair". that section 34, P. P. C. on account of the circumstances of the case was not attracted ; that the parties were closely related to each other and there was no previous enmity between them that Bashir Ahmed, respondent, "while attacking the deceased had no knowledge to kill him". However, the medical evidence indicated that "he could be fixed with the knowledge that the blow being inflicted was likely" to cause death: that the case was not covered by clause thirdly and 4thly of section 300, P. P. C.

5. Learned counsel for the petitioner has contended that the use of a sota by Basbir Ahmed, respondent, on the head of Ghulam Farid deceased with such a force as to result in a depressed fracture of frontal and parietal bones of the head of Farid is enough to demonstrate that the element of intention was there and, in any case, even if he did not repeat the blow, it should have been presumed that the assailant namely Bashir knew that his act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, therefore, his case would fall under clause 4thly of section 300, P. P. C. for which his conviction under section 302, P. P. C. should have been maintained. In the alternative, he has argued- that the maximum sentence under section 304-11 should have been awarded.

6. As has already been noted, Bashir Ahmed (respondent) caused only one blow with a blunt weapon to the deceased (Ghulam Farid). No hard and. fast rule can be laid down as to which provision of law would attracted in cases like the present. one. The motive, intention positive or negative, the imminence and likelihood of the results, the knowledge about the probabilities or likelihood, nature of the weapon nsed, locale, nature and number of the injuries and similar other aspects of the conduct of the assailants as also the position of the victim, together with other circumstances which could be relevant in this behalf, can be the determining factors.

7. In this case although . the weapon used by Bashir Ahmed has been 6 described as a sota giving an impression as if it was a typical blunt weapon used by the villagers as a weapon of offence and defence in village fights, in reality, it was not a sota but a short stick of shishim wood which could and might. have been picked up on a flare-up developing suddenly. Its length as mentioned in the memo. of recovery is about 4 feet. The results produced by the blow inflicted by Beshir with this lathi are not such from which irresistible or even highly probable conclusions could be drawn that the lathi was either very heavy one or that the force used was formidable.

8. The requirements of clause "4thly" of section 300, P. P. C. are much more than those existing in the present case. It is essential for the said clause to be attracted- (a) that the accused should have clear knowledge ; (b) that his act is so imminently dangerous ; (c) that it must in all probability cause death or such bodily injury as is likely to cause death, but in this last mentioned alternative, also, it will be essential to establish the other controlling factors analysed above. These conditions not having been satisfied in this case, there is no justifica tion for granting leave to appeal on the first question raised by the learned) counsel.

9. The sentence of seven years awarded under section 304-II, P. P. C. is neither illegal nor inappropriate. - There is no force in., the second contention either. We, therefore, do not find any justification for interference with the sentence.

10. This petition is without force and is accordingly dismissed. s. A. ii. petition dismissed,