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Criminal Petitions Nos. 199 and 220 of 1982, decided on 25th May, 1986.

(Against the judgment of the Lahore High Court, Lahore, dated 19‑4‑1982, passed in Criminal Appeal No.1259 of 1979 (Murder Reference No.1 of 1980).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Criminal procedure Code (V of 1898), S.417‑‑Penal Code (XLV of 1860), Ss. 302 & 304‑I‑‑Petition for leave to appeal‑‑Complainant, challenging acquittal of accused under S.302, Penal Code, contending that no sound reason had been given by High Court for conversion of sentence from S.302, P.P.C. to 5.304‑I, Penal Code; that factors mentioned as constituting mitigating circumstances were utterly irrelevant; that deceased was aged sixty years, would not entitle accused to lesser sentence and fact that deceased was given repeated blows and that blow with hockey on head of deceased fracturing right temporal bone would in no way reduce gravity of crime committed by accused‑‑Leave to appeal granted to consider contentions.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Penal

Code (XLV of 1860), Ss. 302 & 304‑I Criminal Procedure Code (V of 1898), S.417‑‑Petition for leave to appeal‑ Complainant seeking leave to appeal against acquittal of accused under S.302, Penal Code‑‑Offence committed by accused might be said to fall under S.304‑II, Penal Code‑‑Leave to appeal refused.

Muhammad Rafiq Khan Chohan, Advocate Supreme Court for Petitioner (in Criminal Petition No. 199 of 1982).

Nemo for the State (in Criminal Petition No. 199 of 1982).

Sardar Shaukat Ali, Advocate Supreme Court with Tanvir Ahmad, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 220 of 1982) .

Nemo for Respondents (in Criminal Petition No. 220 of 1982).

Date of hearing: 25th May, 1986.

This order will disposed of two connected ,petitions namely, Criminal Petition No. 199 of 1982 filed by Muhammad Mushtaq against his conviction and sentence; and Criminal Petition No. 220 of 1982 filed by the complainant against the acquittal of Muhammad Mushtaq and Niamat Ali, of the charge under section 302, P. P. C.

2. Learned counsel for the petitioner in Criminal Petition No. 199 of 1982 sought permission to withdraw the petition. The same is, therefore, dismissed as withdrawn.

3. We now proceed to consider Criminal Petition No 220 of 1982.

Facts giving rise to this petition are, briefly, that Muhammad Mushtaq and Niamat Ali respondents were tried for the murder of Nawab Din which‑took place at 7 a.m. on 3‑9‑1978 in Village Bhaseen.

4. Motive for the alleged occurrence was that the two petitioners used to tease the ladies of Mohallah including the females of the deceased.

5. Facts of the case, briefly, are that on the day of occurrence the accused again misbehaved. They were stopped by Nawab Din. As a result of which Muhammad Mushtaq, who was alleged to be armed with a hockey and Niamat armed with a Dang, attacked Nawab Din: He was injured and became unconscious. He was put in the car and taken to Mayo Hospital where he died on the same day. . '

During the investigation blood‑stained hockey was recovered from Muhammad Mushtaq.

6. In support of its case prosecution relied on the testimony of Bashir Ahmad and Muhammad Mushtaq (sons of the deceased) and Muhammad Asghar (P.W. 10). It also relied on the evidence of motive and the medical evidence.

7. Relying on the prosecution evidence the learned trial Court convicted both the accused under section 302/34, P.P.C. and sentenced Muhammad Mushtaq to death and Niamat to imprisonment for life. They were also awarded fine of Rs.2,000 each.

It may be mentioned that according to the medical evidence the deceased was found to have sustained eight injuries, out of which the following injuries were found to be grievous:‑

(1) Contused swelling with contusion 9 c.m. x 1 c.m. on vertical on lower half of right fore‑arm.

(2) Lacerated wound 1 c.m. x c.m. into scalp deep on right parietal region.

8. Both the accused filed an appeal before the High Court against their conviction and sentences. Reference was also made to the High Court for confirmation of the death sentence.

9. The High Court partly accepted the appeal inasmuch as it altered the conviction of Mushtaq from 302, P.P.C. to that under section 304‑I, P.P.C. It also converted the offence of Niamat from 302/34, P.P.C. to that 304‑II.

10. Learned counsel for the petitioner took us through the reasons recorded by Mr. Justice G . M . Mirza of the Lahore High Court for acquitting Muhammad Mushtaq respondent of the charge under section 302, P.P.C. and convicting him under section 304‑I, P.P.C. and reducing his sentence from death to 10 years' R.I.

It would be useful to produce the aforementioned reasons which read as follows:‑

"Nawab Din was aged 60 when he died. One Injury resulted in his death. We are, therefore, of the view that Mushtaq does not deserve to be hanged. The proper conviction and sentence would be under section 304, Part‑I, P.P.C. He is sentenced to 10 years' R.I."

11. Learned counsel submitted that no sound reason has been given for converting the conviction from section 302, P.P.C. to that 304‑I, P.P.C. and secondly that the factors mentioned as constituting mitigating circumstances are utterly irrelevant. The fact that Nawab Din was aged 60 years did not entitle Muhammad Mushtaq to lesser sentence. Moreover, Nawab Din was given repeated blows and the fact that blow with hockey on the head of. the deceased fracturing the right temporal bone (which extended onto the base of the skull and into right temporal fossa), in no way reduce the gravity of the crime committed by Mushtaq.

We are also surprised by the aforementioned reasons and feel that there is force in these contentions. We would, therefore, grant leave in this case, as far as conviction and sentence of Muhammad Mushtaq are concerned.

12. As for Niamat, by stretching the argument, the offence committed by him may be said to fall under section 304‑II, P.P.C. Leave in his case is, therefore, refused in his case.

13. Muhammad Mushtaq is stated to be serving the sentence awarded to him. The relevant Jail authorities should, therefore, be intimated that he should not be released

till the final disposal of the appeal, arising out of this petition.

M.Y.H. Leave granted.

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