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Criminal Petition for Special Leave to Appeal No. 31-P of 1967, decided on 28th March 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 3rd November 1967, in Revision No. 49 of 1967).
S. 302-Murder--Z and S making joint attack with knives on deceased---Z causing fatal injuries awarded transportation for life whereas S convicted under S. 324, P. P. C. and sentenced to 1 year's R. I. only---Special leave to appeal granted to consider whether S did- not share common intention with Z.
Khan Abdul Qayyum Khan, Senior Advocate Supreme Court (Khan Abdur Rauf Khan, Advocate Supreme Court with hire) instructed by Safdar Hussain, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing: 28th March 1968.
Muhammad Zubair and Ghulam Sabir, respondents, were charged under section 302/34, P. P. C. for the murder of one Abdul Aziz butcher of Mohalla Mehr Badhu, Peshawar City. The occurrence had taken place on 19-5-1966 at about 10 p. m., in Bazar Tingaran and was witnessed by Ghulam Sabir, P. W. 10 Sadiq Ali, P. 11 and Abdul Majid. C. W. 1. The deceased was standing near the shop of P. W. 10 when the two respondents armed with knives arrived there anal one after the other caused injuries to hurt as a result of which he died in the hospital on 25-5-1966.
The trial Judge found the eye-witnesses as wholly independent observing that none of them had any relationship with the deceas ed and had "no axe of their own to grind against any of the two accused". It was, however, found that the fatal injuries were caused by Muhammad Zubair while Muhammad Sabir had succeeded in inflicting only simple injuries with the knife he carried. The prosecution story that the respondents had arrived at the spot with open knives was further considered to be an exaggeration and consequent upon it Muhammad Zubair alone hold guilty under section 302 and sentenced to transportation while Muhammad Sabir was found guilty of the offence under section 324 and awarded rigorous imprisonment for one year.
A revision petition filed by tire present petitioner in the High Court against the acquittal of Muhammad sabir under section 30, P. P. C. and award of lesser penalty to Muhammad Zubair was dismissed by the High Court on the view that section 34 was on the facts found not applicable and that the deceased had taunted Muhammad Zubair as a pickpocket as a result of which the latter attacked him with the knife which in the circumstances constituted a mitigating circumstance.
On hearing the learned counsel and taking into consideration the facts found by the Courts below we are clearly of the view that no case is made out for interference with the sentence awarded to Muhammad Zubair. The sentence is legal and it is not sown that in the circumstances a grave miscarriage of justice has taken place to call for interference.
The nature of the offence committed by Muhammad Sabir respondent, however, requires Consideration. He attacked the deceased with a knife after Muhammad Zubair, his companion, had applied repeated injuries with a knife an his vital parts with sufficient severity. Question is whether in the circumstances he did not share the common intention with Muhammad Zubair to kill the deceased.
The petition against Muhammad Zubair is dismissed, but leave to appeal against Muhammad Sabir is granted. Bailable warrants in the sum of Rs. 10,000 (rupees ten thousand only) with two sureties in the like amount to the satisfaction of the District Magistrate, Peshawar, to issue.
Petition partly accepted.
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