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Criminal Appeal No. 1800 of 1984, decided on 23rd September, 1984.

---S.417‑‑Penal Code (XLV of 1860), S. 302/307/148/149‑‑Appeal against acquittal‑‑Prosecution case indicating that accused did not cause any injury to deceased, neither raised lalkara nor held deceased or chased him‑‑No overt act attributed to accused‑‑Appeal against acquittal dismissed.

Akhtar Shabbir, A. A.‑G. for the State.

‑‑ This is State appeal against the acquittal of Ghulam Haider accused from the charge under sections 302/307/148/ 149, P.P.C. The deceased in the case is Arab Hussain.

2. The prosecution story is that Ghulam Haider armed with knife and his five other companions armed with one Chhurri (Akbar accused) and the rest with knives attacked the deceased while he was returning after offering his prayers in the mosque alongwith his father Nazir Hussain P.W. 8 and Tariq P.W. 10. The allegation is that Muhammad Akbar, Muhammad Yousuf, Sultan, Muhammad Aslam and Nazir Hussain co‑accused of Ghulam Haider, caused blows with their knives and Chhurri on the back of Arab Hussain deceased. The deceased had sustained five stab wounds and each of these is attributed to one of the co‑accused. So far as Ghulam Haider is concerned, the only part attributed to him is that he was armed with a knife and when Tariq P.W. 10 intervened, in order to rescue the deceased from the clutches of the co‑accused, he caused injury to him on his hand. According to the medical evidence, Tariq P.W. 10 had two incised wounds; skin deep over the palmer surface of left hand and these are simple in nature. The prosecution case indicates that Ghulam Haider did not cause any injury to the deceased. He neither raised Lalkara nor held the deceased or chased him. In other words, no overt act is attributed to him, so far as the deceased is concerned. Even in the motive version, he does not come in because if anyone had any motive to attack the deceased, then these were Akbar and Sultan co‑accused and not Ghulam Haider. Thus it was in this background that the learned trial Court acquitted Ghulam Haider of the aforesaid charges, under section 302/307/148/149, P.P.C.

3. Learned Assistant Advocate‑General, Punjab, argues that once the trial Court had applied section 148/149, P.P.C. in the case of the accused party, then there was no question of acquitting Ghulam Haider for the reason that he did not touch the deceased. According to the Assistant Advocate‑General, he was member of an unlawful assembly which had attacked the deceased with common intention and Ghulam Haider is attributed the part of causing a simple injury to Tariq P.W. 10 in the course of the occurrence.

4. Even if we accept the arguments of the learned Assistant Advocate‑General, in our view, Ghulam Haider probably can only be given notice for the part ascribed to him. This may or may not lead to his conviction under section 323/324, P.P.C. and, therefore, no useful purpose will be served to issue notice in the circumstances of the case.

5. In the light of what has been discussed above, we do not find any substance in this State appeal which is accordingly dismissed in limine.

M.Y.H. Appeal dismissed.

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