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Criminal Appeal No. 9 of 1951, decided on 29th October 1951.

(On appeal from the judgment and order dated the 22nd December 1949 in Criminal Appeal No. 21 of 1950, of the High Court of Judicature at Lahore).

Ss. 300 & 302‑Accused intending to kill A, causing death of B instead‑Accused, nevertheless, held, guilty of murder.

A. A. K. Lodhi, Advocate Federal Court instructed by Muhammad Siddiq, Attorney for Appellant.

Abdul Aziz Khan, Advocate‑General of the Punjab (S. A. Mahmud, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 29th October 1951.

In this case special leave to appeal wag granted on the question whether in the circumstances found by the High Court the offence committed was murder or something short of murder. Having heard learned counsel for the appellant and perused the record we are satisfied that the death caused in this case was nothing but murder and that this appeal must be disallowed.

Havildar Ghulam Muhammad is the second husband of Mst. Sunar Khatoon, who has from her first husband a daughter, named Mst. Amir Khatoon who is married to her Ali appellant Who 4lsp has another wife.

Both Havildar Ghulam Muhammad and the appellant belong to village Jabi. The former was employed in the Army at Rawalpaindi and had come on leave to Jahi with his wife Mst. Sunar Khatoon a few days before the occurrence. As Mst. Amir Khatoon was being mat‑treated by the appellant she went over to the house of her mother and Ghulam Muhammad.

On 7th July 1947 Havildar Ghulam Muhammad and his wife left Jabi for Rawalpindi. They took a bus for Khushab and Mst. Amir Khatoon accompanied them. When the bus reached the village of Hadali, midway between Khushab and Jabi, the driver found the road blocked by a heavy log of wood. He slowed down the vehicle and while he was attempting to pass by the log the appellant who was standing on one side of the void armed with a rifle, with fifteen‑sixteen other men armed with various weapons including a rifle, signalled him to stop. Ghulam Muhammad, however, urged the driver to proceed on saying that he apprehended harm from the appellant. While the bus was attempting to move away the appellant fired his rifle. The bullet went through the wall of the body of the bus and passel through the right thigh of Mian Muhammad shattering his femur into pieces, two of the pieces striking the thigh of Ghulam Muhammad who was sitting next to Mian Muhammad. The bus, however, moved on and before it reached Khushab Mian Muhammad had died.

The appellant was granted leave to appeal because the learned Judges of the High Court had found it to be a possibility that the appellant intended to shoot at the wheel of the bus in order to disable it and not at any particular person. After reading the evidence, however, it seems to us to be clear that though the original object of the appellant was to kidnap his wife by causing the bus to stop, he did fire his rifle at Ghulam Muhammad after the driver refused to stop the bus and in so doing caused the death of Mian Muhammad. According to Ghulam Muhammad the appellant fired his rifle from a distance of about two karams and this allegation receives corroboration from the evidence of Raja Adalat Khan, Election Tehsildar, who found marks of gun‑powder around the hole in the body of the bus. That being so it can be safely inferred that the appellant aimed at and intended to murder Ghulam Muhammad, but that the bullet hit Mian Muhammad who was sitting next to Ghulam Muhammad. We, therefore, see no reason to interfere with the conviction and dismiss this appeal.

Appeal dismissed.

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