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Criminal Petition for Special Leave to Appeal No. 72‑R of 1984, decided on 9th October, 1985.

(Against the judgment of the Lahore High Court, Lahore, dated 17‑7‑1984, passed in Criminal Appeal No. 61 of 1980).

-----Art. 185(3) ‑‑ Penal Code (XLV of 1860), Ss. 302/307/149 & 304‑‑Sentence, enhancement of‑Leave to appeal‑Accused raised Lalkara to the effect that deceased should not be spared and thereafter inflicted hatchet blow with its reverse side on head of deceased while co‑accused gave Sota blow on head of deceased and left place of occurrence alongwith their weapons ‑Medical report showed that co‑accused had also sustained one simple injury with blunt weapon on his head and two simple injuries on his fingers‑Trial Court found both accused not guilty of an offence under S. 302, P. P. C. and instead convicted them under S. 304, P. P. C.‑High Court on appeal maintained conviction but reduced sentences from imprisonment for life to 8 years' R. I. each‑Supreme Court while granting leave to appeal to consider question of enhancement of sentence of accused, observed that trial Court had wholly misjudged guilt of accused persons with respect to murder of deceased and had erred in convicting both accused for culpable homicide when it was evident from record that accused persons killed deceased deliberately when he tried to rescue his son from them‑Accused responsible for murder should have been convicted under S. 302, P. P. C., and not under S. 304, P. P. C. in circum stances‑Leave to appeal granted.‑[Sentence].

Raja Muhammad Akram, Advocate Supreme Court and M. Afzal Siddiqi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents,

--Bashir Ahmed and Muhammad Ilyas were tried alongwith 3 others for the murder of Hassan Muhammad.

2. The prosecution case briefly stated is that there was a dispute between the parties over a small piece of land in possession Ahmad respondent. On the day of occurrence Dilawar Hussain P.W., was going toward his well. When he passed near the house of Bashir Ahmad respondent, ail the accused came out and attacked him. Bashir Ahmad respondent was arm‑.d with a hatchet, while Muhammad Ilyas respondent and Ghulam Hussain respondent were armed with Sotas. They inflicted injuries to Dilawar Hussaha with their various weapons. Hassan Muhammad (deceased), father of Dilawar Hussain P. W., who was cutting fodder in a nearby field, rushed to the spot and intervened in order to save his son. Bashir Ahmad respondent raised a Lalkara to the effect that he (Hassan Muhammad) should not be spared. Thereafter, Bashir Ahmad accused inflicted hatchet blow with its reverse side on the head of Hassan Muhammad, while Muhammad Ilyas accused‑respondent gave him Sota blow on the head. The other accused are also stated to; have inflicted minor injuries on him. Thereafter, the accused left along with their weapons. Both Dilawar Hussain and his father Hassan Muhammad were seriously injured. But Dilawar Hussain survived, while his father succumbed to his injuries. Hassan Muhammad deceas ed was found to have suffered the following injuries :‑

(1) Stitched wound 3 " long over left side of head with irregular depression of partal and the wound directed from front back.

(2) Partly stitched wound 21/2" extended entroposteriorly over back of left side of head.

(3) Abrasion right side of back of head 3/4" x 1/2".

(4) Contusion right mastoied area 1" x 3/4".

5. Stitched wound extending horizontally over front mid part of neck.

Dilawar Hussain P. W. was found to have suffered the followed injuries on his person :‑

(1) T‑shape contused wound on the back top of bead upper portion T.measured 1 " x " x scalp deep. Whereas the lower portion measured about 1 " x x scalp deep.

On medical examination Muhammad Ilyas co‑accused was found to have sustained one simple injury witn blunt weapon on his head and two simple injuries on his fingers, while Nazir co‑accused had sustained two simple injuries with blunt weapon.

3. All the five accused were tried for offences under section 302/307/149. P. P. C. The trial Court, vide its judgment dated 26‑11‑1979, acquitted Nazir and Muhammad Hussain, who were empty handed. It found the Bashir Ahmad and Muhammad Ilyas respondents were not guilty of an offence under section 302, P. P. C., and instead convicted them under section 3. 4, P. P. C. The reason as given by the trial Court for this finding reads as follows :‑

"Keeping all the circumstances of the case in view I am of the opinion that the said five accused while coming out from their house had no intention to commit the murder of Hassan Muhammad deceased though they had the common intention of causing hurt to Dilawar which could lead the major offence and the injuries on the person of Dilawar shows that these were caused with the knowledge and intention that this might lead to a major offence. It was per chance that he survived. The case. therefore, which stand proved against Bashir and Ilyas accused is not of murder but of culpable homicide not amounting to murder and the one, which stand proved against Ghulam Mustafa is that of causing hurt by bloat weapon to Dtlawar P. W."

It sentenced Bashir Ahmad and Muhammad Ilyas for the said offence (section 304, P. P. C.) to imprisonment for life and a fine of Rs. 5,000 (or 2 years' R. I. in case of default thereof). It also convicted Ghulam Mustafa accused‑respondent under section 323, P. P. C. and sentenced him to 6 months' R. I.

4. On appeal the High Court maintained the conviction of Bashir and Muhammad Ilyas, but reduced their sentences from imprisonment for life to that 8 years' R. I. each. It also maintained the conviction of Ghulam Mustafa under section 323, P. P. C. but reduced his sentence to that already undergone.

5. Feeling aggrieved Dilawar Hussain has filed the present petition for enhancement of the sentence of Bashir Ahmad, Ilyas and Ghulam Mustafa.

6. After perusing the prosecution version as stated by the eyewit nesses, which has been believed by the Courts below, and going through the reasons given by the learned trial Court (Additional Sessions Judge, Gujranwala) for convicting Bashir Ahmad and Muhammad Ilyas respon dents under section 304, P. P. C., we notice that the learned trial Court has wholly misjudged the guilt of the respondents with respect to the murder of Hassan Muhammad and have erred in convicting them for culpable homicide when it is evident from the record that they killed Hassan Muhammad deliberately when he tried to rescue his son from o them. It can be argued with justification that the accused responsible for his murder should have been convicted under section 302, P. P. C. and not under section 304, P. P. C. However, since the petitioner failed to file an appeal against their acquittal under section 302, P. P. C., we cannot go into that matter and proceed to deal with the petition for enhancement of their sentences under section 304, P. P. C., which were reduced by the High Court from imprisonment for life to 8 years' R. I. in the case of Bashir Ahmad and Muhammad Ilyas.

7. Learned counsel for the petitioner has taken us through the portion of the High Court judgment relating to the accused‑respondents and submitted that the authorities relied upon by the learned Chief Justice are not at all applicable to the facts of the present case, where the accused have evidently killed Hassan Muhammad by deliberately giving him injuries which fall within the definition of murder as given in sec tion 300, P. P. C. He submitted that Hassan Muhammad was brutally murdered while his son miraculously escaped death, due .o sheer good look, and that it is, therefore, highly unjust to let off the accused found guilty of such offences with the light sentence of 8 years' R. I. He submit ted further that the reasons recorded by the learned High Court for reduction of the sentences are wholly untenable and need reconsidera tion. He pointed out that the learned High Court had failed to notice the paucity of reasons recorded by the trial Court in determining the culp ability of the accused‑respondents with respect to the murder of Hassan Muhammad and convicting them under section 304, P. P. C., when they were obviously guilty of an offence under section 302, P. P. C. and proceeded to reduce the sentences of the respondents merely because in some other cases under section 304, P. P. C. the accused hid been award ed sentences lesser than imprisonment for life, without considering whether the facts in those cases were similar. The learned counsel, therefore, prayed that the sentences awarded to the accused‑respondents should be enhanced.

8. We feel that in the peculiar circumstances of this case the question of enhancement of sentences of Bashir Ahmad and Muhammad Ilyas does need reconsideration. We, therefore, grant leave for this purpose in their case only. Non‑bailable warrants shall issue against them.

The petition with regard to Ghulam Mustafa is, however, dis missed.

M. B. A. Petition dismissed.

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