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AND

A. No. 305/1981

AHMAD ALI‑Petitioner

AND OTHERS‑Respondent

Criminal Petitions for Special Leave to Appeal Nos. 294 and 305 of 1981, decided on 17th February, 1982.

(Against the judgment of the Lahore High Court dated 1‑6‑81 in Criminal Appeal No. 164/1980). .

Art. 185(3) read with Penal Code (XLV of 1860), Ss. 307/149 & 325/149 ‑ Contention that convicts could not be held guilty and in any case High Court could not while altering conviction from S. 307/149 to one under Ss. 325/149 enhance sentence, contravening thereby S. 423 (1) (b) of Criminal Procedure Code, 1898‑Held: Substantial questions of law raised and require examination‑Leave to appeal granted‑Criminal Procedure Code (V of 1898), S. 4231970 S C M R 840(b). [Sentence].

Dalmir v. State 1970 S C M R 840 ref.

Nemat Ullah Khan, Advocate Supreme Court and Iqbal Ahmed Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Cr. P. S. L. A. No. 305/81

Zafar Pasha Chaudhry, Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 17th February, 1982.

SHAFI‑UR‑REHMAN, J.

‑Abdur Rashid along with four others was convicted by the trial Court under sections 302/149, 307/149 and 148, P. P. C. and sentenced to life imprisonment for the first, three years' R. I. for the second and one year's R. I. for the third offence apart from fine imposed. On appeal the High Court altered their convictions to one under sec tion 325/149 (two counts) and sentenced them to seven years' R. I. On each count apart from fine, which on realization was to be paid as compensation. Their conviction and sentence under section 148, P. P. C. was maintained.

2. The complainant, as well as the convicts, have by separate petitions sought leave to appeal against this judgment of the High Court. The complainant's case is that the convicts having caused as many as thirteen injuries by lathis to one and twelve to the other resulting in the death of the victim could not be held to have intended anything different from the death of the victim. He has relied on Dalmir v. State (1970 SCMR 840), and plain language of section 300, P. P. C. The learned counsel for the convicts has on the other hand pleaded that the convicts could not be held guilty at all, and in any case the High Court could not while altering conviction from 307/149, P. P. C. to one under section 325/149, enhance the sentence from three years' R. I. to seven years' R. I., thereby contravening section 423(l)(b) of Criminal procedure Code.

3. We find that substantial questions of law require examination and leave to appeal is granted in both the petitions. As the sentence may expire, in the meantime, let these appeals be heard within a year from today.

Leave granted.

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