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Criminal Petition for Special Leave to Appeal No. 35‑R of 1980, decided on 8th October, 1980.

(On appeal from the judgment and order dated the 14th June, 1980 of the Lahore High Court, Lahore, in Criminal Appeal No. 273 of 1980).

Penal Code (XLV of 1860)‑

--S. 307‑Murderous assault‑Sentence‑Mitigation‑Contention that petitioner having suffered agony of trial for 5 years entitled him to reduction in sentence‑Petitioner having remained on bail through out except for a period of 20 days, no ground, held, made out for reduction in sentence.‑[Sentence].

Agha Aziz Ahmad, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 8th October, 1980.

FAKHRUDDIN G. EHRAHIM, J.

‑‑.This petition for special leave to appeal is directed against the judgment dated 14‑6‑1980 made by a learned Single Judge of the Lahore High Court in Criminal Appeal No. 273 of 1980 dismissing petitioner's appeal against his conviction under section 307, P. P. C. for committing murderous assault upon Fazal Hussain P. W. 1 and sentence of four and a half years and a fine of Rs. 1,000 or in default to undergo further R. I. for six months made by the learned Magistrate, Gujrat, vide his judgment dated 3‑3‑1980.

The limited argument in support of this petition relates only to the sentence.

Mr. Agha Aziz Ahmad, learned counsel for the petitioner; contended that the case against the petitioner was that one of the injuries caused to P. W. 1 Fazal Hussain was grievous but evidence was limited to certain simple injuries only which would at best make out a case under section 324, P. P. C. The finding of the two Courts that one of the said injuries, viz. injuries No. 2 was grievous, it was argued, was based on medical evidence of P. W. 3, Dr. Sami Tariq, while it was alleged that it was Dr. Altaf Hussain Rathore who had on the basis of an X‑ray examination found this injury to be grievous vide his report Exh. P. E., but Dr. Rathore was not examined. The finding of the trial Court is that Dr. Sami Tariq who bad conducted the medical examination, while appearing as P. W. 3, had stated that injury No. 2 was subsequently found dangerous to life. The learned counsel has not placed before us either a copy of Exh. P. E. or a copy of deposition of P. W. 3, Dr. Sami Tariq. The finding of the High Court is that according to the evidence of Dr. Sami Tariq, Injury No. 2 was on X‑ray examination, found to be grievous. It would, therefore, appear that Dr. Sami Tariq was the first person who examined the injured and bad given his finding that the injury No. 2 was grievous on X‑ray examination. It is, therefore, incorrect that there was no evidence that injury No. 2 caused on the person of P. W. 1 was grievous. We have also noticed that no such ground was urged in the appeal before the High Court and we would, therefore, be disinclined to permit the petitioner to raise this plea in the present leave petition.

It was next contended that the petitioner has suffered agony of trial for 5 years which would justify reduction in his sentence. The petitioner was, however, throughout on bail except for a period of 20 days. No ground is, therefore, made out for reduction in the petitioner's sentence.

There is, therefore, no merit in this petition and it is accordingly dismissed.

Petition dismissed.

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