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Criminal Petitions Nos. 3 and 42 of 1982, decided on 26th June, 1986.

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/304, Part II‑‑Petition for leave to appeal‑‑High Court although discarding plea of self‑defence put forth by accused and relying on prosecution evidence yet altering conviction of accused from 5.302, P.P.C. to S.304 Part II, Penal Code, and reducing sentence‑‑Contention of complainant that alteration of conviction and reduction of sentence, by High Court was based on incorrect reasoning; having considerable force‑‑Leave to appeal granted to complainant to consider whether High Court in circumstances of case was justified in altering conviction and reducing sentence of accused‑ Leave to appeal, subject to objection regarding limitation, also granted in connected petition filed by accused against their conviction.

M. Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Kh. M. Asghar with Ejaz Ahmad Khan, Advocate‑on‑Record .for Respondents (in Criminal Petition No. 3 of 1982) .

Ch. Asghar Ali Bhatti, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners (in Criminal Petition No. 42 of 1982).

Nemo for the State.

Date of hearing: 26th May, 1986.

This order shall dispose of:

(i) Criminal Petition No. 3 of 1982 filed by Muhammad Hanif against the alteration of conviction of Bahar and Abdul Rehman (respondents 1 and 2) under section 302, P.P.C. to section 304‑I1, and against the acquittal of Muhammad Ali and Nawaz (respondents 3 and 4); and

(ii) Criminal Petition No. 42 of 1982 filed by Bahar and Abdur Rehman against their conviction and sentence.

< [if supportLists]>2. We first take up Criminal Petition No. 3 of 1982.

Facts giving rise to this petition are, briefly, that Bahar and Abdur Rehman, the two respondents, were tried along with Muhammad

Ali and Nawaz (the two acquitted co‑accused) for the murder of Allah Rakha and for making a murderous assault on Muhammad Hanif (P.W. 6) shortly before sunrise on 12‑8‑1979.

Allah Rakha (deceased) who had not yet died, made a statement on which the F.I.R. is based.

During the investigation the blood‑stained hatchet was recovered from Bahar accused while blood‑stained Dangs were recovered from the remaining accused.

3. Motive alleged is that a quarrel took place between Abdur Rehman accused and Muhammad Hanif (P.W. 8) prior to the occurrence when a buffalo of the deceased had strayed into the field of the accused party.

4. The prosecution case as mentioned in the F.I.R., briefly, is that on the day of occurrence at Surgiwela, was returning to his Haveli after answering the call of nature. When he reached his Haveli he heard the hue and cry of his brother Muhammad Hanif. He rushed to the place of occurrence and saw Bahar accused armed with a hatchet and Muhammad Nawaz, Muhammad Ali and Abdur Rehman armed with Dangs. Abdur Rehman gave a Dang blow on the head of Muhammad Hanif whereas Muhammad Nawaz and Muhammad Ali, respondents, contemporaneously inflicted injuries on the back of Muhammad Hanif with their Sotis. Muhammad Hanif fell down. Allah Rakha, the complainant (deceased) went forward to save Muhammad Hanif from the clutches of the respondents when Bahar respondent gave a hatchet blow with the blunt side on his head. Abdur Rehman (respondent) dealt Dang blows on the shoulders and the wrist joint of Allah Rakha who also fell down. On the alarm of Allah Rakha, Khurshid Muhammad, Hayat Muhammad P.Ws. and certain other inmates of the village reached there. Their intervention prevented the assailants from causing any further harm to their victims. .

5. The learned trial Court believed the prosecution version, convicted and sentenced the respondents as follows:‑‑

1. Bahar under section 302/34, P.P.C.

2. Abdur Rehman Death to Bahar and life imprisonment to others.

3. Muhammad Ali Fine of Rs.2,000 each or in default 3 months'

R.I. plus Rs.2,000 each under section 544‑A,

4. Nawaz Cr.P.C. as compensation to the heirs of the deceased,

in default 3 months' R.I.

under section 307/34, P.P.C.

Each to four years' R.I. Fine Rs.1,000 in default 3months' R.I. plus Rs.1,000 each under section 544‑A, Cr.P.C. as compensation to Muhammad Hanif.

under section 452/34, P.P.C.

One year's R.I. each and fine of Rs.100 in default

one month's R.I. Sentences to run concurrently.

6. On appeal the High Court acquitted Muhammad Ali and Nawaz, altered the conviction of Bahar and Abdur Rehman from section 302, P.P.C. to one under section 304‑II, P.P.C. and reduced their sentence to 10 years' R.I. and 7 years' R.I., respectively.

Under section 307/34, P.P.C. the High Court maintained the conviction and sentence of Abdur Rehman and Bahar respondents.

7. Muhammad Hanif, brother of the deceased, who was injured during the incident, has filed the present petition (Cr.P. 3/82) for leave to appeal against the alteration of the conviction of co‑accused and reduction of their sentences and acquittal of the remaining two co‑accused.

8. His counsel only argued the case against Bahar respondent, urging that the reasons given by the High Court for altering his conviction from 302, P.P.C. to 304‑I1, P.P.C.

and reducing his sentence from death to 10 years' R.I. are based on incorrect reasoning.

9. We notice that the High Court had discarded the defence version (self‑defence) put forth by Bahar respondent in his statement under section 342, Cr.P.C. and relied on the prosecution evidence, yet it altered the conviction of the respondent from section 302, P.P.C. to section 304‑II, P.P.C. and reduced his sentence for which reasons have been given in paragraph 19 of the impugned judgment.

After reading the said reasons together with the nature of the injury inflicted by Bahar on Allah Rakha deceased, i.e a lacerated wound 4" x 1/3" x scalp deep on the left side of the head at the front prietal area, we feel that the contention raised by the learned counsel for the petitioner regarding the correctness of the aforementioned reasons recorded by the High Court has considerable force.

Leave is, therefore, granted to consider whether the High Court in the circumstances of this case, was justified in altering the conviction and reducing the sentence of Bahar respondent.

10. Since leave has been granted in Criminal Petition No. 3 of 198 leave is also granted in the connected petition (Criminal Petition No. 42 of 1982) filed by the accused‑petitioners against their conviction and subject to objection regarding limitation.

M. Y. H. Leave granted.

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