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Criminal Petition No. 34‑R of 1983, decided on 7th February, 1984.

(On appeal from the judgment and order dated 15th May, 1983 of the Lahore High Court Rawalpindi Bench, in Criminal Appeal No. 689 of 1978 and Criminal Revision No. 685 of 1978).

‑‑‑Art. 185(3)‑‑‑Penal Code (XLV of 1860). S. 304 read with Ss. 302 & 149‑Murder‑Concurrent findings of Courts below negativing inten tion of accused to kill‑Contention that accused should have been tried on capital charge and that not having been done so Supreme Court should order a retrial on such charge‑‑‑Held, without merit Refusal of petitioner‑Complainant's prayer, for retrial of accused, by High Court‑Held, unexceptionable‑Leave to appeal refused.

Ch. Akhtar Ali, Advocate‑on‑Record Supreme Court of Pakistan, for Petitioner.

Nemo for Respondents.

Date of hearing : 7th February, 1984.

‑The respondents herein were tried by the Additional Sessions Judge, Campbellpur on charges under sections 148, 304 and 323 read with 1.49, P. P. C. by a section 30 Magistrate for causing the murder of Fateh Khan and simple injuries to Muhammad Yousuf, Noor Sultan and Muhammad Hussain. They were accordingly convicted and sentenced to suffer two years' rigorous imprisonment, seven years' rigorous imprisonment and fine, and six months' rigorous imprisonment, respectively on the above‑noted counts.

It appears that while the trial was proceeding, the petitioner, who is a complainant, motioned to the Magistrate for altering the charge to sec tion 302, P. P. C. but his prayer was refused on the ground that the circum stances of the case did not disclose any intention on the part of the respon dents to kill the deceased. The matter was agitated in revision on the ground that under sections 227 and 347 of the Criminal Procedure Code, but the Additional Sessions Judge held that the charge can be altered at any stage of the proceedings if the evidence so warrants although at this stage it was not proper to do so.

The respondents appealed against their conviction and the petitioner also filed a revision questioning their trial and conviction under section 304 read with section 149, P. P. C. The High Court on an appraisal of the evidence came to the conclusion that it was respondent Khadim Hussain who gave a single fatal blow to the deceased which caused his death, and, accord ingly his conviction was altered to under section 304, Part 11 as it was of the opinion that the motive imputed did not reflect that this respondent Would have so prompted as to kill the deceased. Here it may be mentioned that the daughter of the deceased was married to Muhammad Hussain son of Lal Khan, who, it was alleged, had misbehaved with her upon which she left his house and came to reside with her deceased father who had reprimanded him. This was alleged to be the reason for the scuffle. The finding of the High Court in regard to intention appears to be founded‑on this trivial incident particularly when one of the respondents caused a single serious injury. On a vital part of the body of the deceased which proved fatal and so also one of the respondents was injured. Added to it was the reason that it was not a premeditated affair. The revision, accordingly, filed by the petitioner was dismissed as the High Court was also of the view that there was no intention to kill.

The Advocate‑on‑Record for the petitioner contends that the respondents should have been tried on the capital charge and that not having been done so we should order a re‑trial on that charge. This contention is without merits as in view of the concurrent findings of the Courts below negativing the intention to kill it is not a matter for us to re‑appraise the evidence, when such a view could have been taken on the evidence. Accordingly, no fault can be found in the refusal of his prayer by the High Court.

The petition is without any merit and is dismissed.

S. Q. Petition dismissed.

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