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Criminal Petition No. 314 of 1983, decided on 28th February, 1984.

(Against the judgment of the Lahore High Court, dated 17th July, 1982, passed in Criminal Appeal No.666 of 1981).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 & 304(I)‑‑Sentence‑ Contention that case fell under S.304(I) and not under S. 302, Penal Code and that petitioner was entitled to lesser sentence‑‑Facts proved on record, however, not shown to constitute an offence under S. 304 (I)‑‑Number and nature of injuries on deceased calling for higher sentence under S. 302‑‑Leave to appeal refused .‑

Haji Muhammad Anwar Buttar, Advocate Supreme Court with Muhammad Aslam Ch. Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 28th February, 1984.

.‑‑ Mubarak Sarfraz Masih seeks leave to appeal against the judgment of the High Court, dated 17‑7‑1983 dismissing the petitioner's appeal in a murder case.

He was tried for the murder of his first cousin Mst. Saleem Bibi aged 13/14 years, by giving dagger blows. According to the prosecution version Rehmat Masih (complainant) and his wife (father and mother of the deceased girl) went to the railway station to receive their relatives and left the petitioner (a nephew of Rahmat Masih) at home, with the deceased. The only other person left in the house was Mst. Parveen a younger sister of the deceased, aged about 10/12 years. During their absence the accused petitioner sent Mst. Parveen to fetch some ice from the bazar and while she was absent the petitioner attacked Saleem Bibi with a Khanjar and gave her numerous blows, which resulted in her death. Mst. Parveen P.W. 6, returned in time to see the incident. After committing the murder the accused ran out of the house and was seen by Rehmat Masih son of Dippa Masih (P.W. 8) a cousin of the complainant. He tried to apprehend him but the accused threatened to attack him.

2. The motive for the offence is stated to be that the accused suspected Mst. Saleem Bibi of bad character.

After his arrest, Khanjar (Exh. PE) was recovered from the accused. His blood‑stained shirt and Shalwar (P.1 to P.3) were also removed from his person and taken into custody by the Investigating Officer.

The post‑mortem examination revealed as many as 18 incised injuries on the body of the deceased. It was also found that she was three months pregnant.

3. At the trial the prosecution relied on the ocular testimony of Parveen (P.W. 6) and Rehmat Masih (P.W. 8), a Wajtakkar‑ witness; the recoveries; the evidence of motive and the medical evidence. The accused denied his guilt and produced three D.Ws in his defence, i.e. his mother Mst. Barkat Bibi (D.W. 1), Sabir D.W.2 a son of petitioner's sister who simply stated that the petitioner was innocent and had been falsely involved and Bawa Masih D.W.3 a Councillor of M.C.B. Chicha watni who testified that on 8‑4‑1981, an A.S.I. and a constable came to the house of Sabir D.W. in a colony there and they brought him to Lahore in his presence.

4. The learned trial Court relied on the prosecution evidence, convicted the petitioner under section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.1,000. The High Court dismissed his appeal. Hence the present petition.

5. The only contention urged by the petitioner's counsel was that the case fell under section 304‑I, P.P.C. and not under section 302, P.P.C. and that as such the petitioner was entitled to lesser sentence. He has, however, not been able to show as to how the facts proved on the record constituted an offence under section 304‑I, P.P.C. Considering the number and nature of injuries, he, in fact, deserved the higher sentence under section 302, P.P.C. We find no merit in this petition which is consequently dismissed.

S . Q . Petition dismissed.

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