(a) Penal Code (XLV of 1860)--
---Ss.302, 326 & 397 & 34--Leave to appeal granted to consider (i) whether reasons which prevailed with High Court for converting the offence from 5.302 to 5.326, P.P.C. were available in case; (ii! whether it was not relevant to consider as to why the accused had attacked the deceased; (iii) whether in all cases where death was due to cutting of famoral artery, punishment had to be under 5.326, P.P.C. or it would depend upon circumstances of each case; (iv) whether the case reported in 1976 S C M R 497 was of any help to accused, and (v) whether in case offence committed was only under 5.326, P.P.C. accused should not have been awarded maximum sentence thereunder with a very heavy, exemplary and deterrent fine.
(b) Penal Code (XLV of 1860)--
---Ss.302 & 326 read with S.34--Reasonable possibility that accused might not have known that his companion would go to extent of using Khanjer against the deceased--Leave to appeal against alteration of conviction and sentence of accused under S.302/34, to that under 5.326/34, P.P.C. refused.
Ali Ahmad Malik, Bar-at-Law and Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 23rd December, 1987.
ABDUL HAMEED VS TARIQ MAHMOOD1988 S C M R 367Present: Aslam Riaz Hussain, Muhammad Afzal Zullah and Saad Saood Jan, JJABDUL HAMEED--PetitionerversusTARIQ MAHMOOD and 2 others--RespondentsCriminal Petition for Special Leave to Appeal No. 133 of 1984, decided on 23/12/1987.(From the judgment/order of the Lahore High Court, Multan Bench, dated 20-3-1984 in Criminal Appeals Nos. 79 and 81 of 1982).
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the complainant in a murder case from judgment dated 20-3-1984 of the Lahore High Court; whereby Criminal Appeals of Tariq Mahmood and Muhammad Aslam accused /respondents Nos.1 and 2 against conviction under Sections 302 and 397 read with Section 39 PPC and sentences of life imprisonment as also other sentences. were partly allowed--the conviction under section 302/34, PPC was altered to 326, PPC and sentence of life imprisonment, was reduced to seven years' R.I. each.
The facts summarised in the petition are that "the deceased Muhammad lqbal was murdered on 28-1-1980, at about 8.00 p.m. while he was going on his own Bicycle alongwith Abdul Hameed P.W.5, who was holding tape-record Ex.P.7, from Multan City towards his Village on old Shujabad Road, in the neighbourhood of Rest House Cotton Research Institute in the area of Rangilpur. Both the accused were going on foot ahead of the deceased and the complainant. When the Cycle was driven by the deceased they passed by the side of both the accused. Muhammad Aslam accused caught hold of the cycle and pushed it on the ground. Both the deceased and the complainant fell down. On this, Tariq Mahmood accused snatched tape-recorder from the complainant while Aslam accused lifted the cycle. Aslam accused intended to drive away the cycle but Muhammad lqbal deceased intervened and both the complainant and the deceased raised an alarm with the word 'Thief, Thief'. In the meantime, two other persons, namely Akbar Ali P.W.7 and Taj Muhammad P.W.6 reached there. In the presence of the complainant and abovementioned two persons, Muhammad Aslam accused gave a Khanjar blow to Muhammad Iqbal deceased who fell on the ground. The complainant, Akbar Ali and Taj Muhammad chased Tariq Mahmood accused and he was apprehended with the tape-record. Muhammad Aslam accused slipped away. Muhammad Iqbal who was injured, was taken in a trolly tractor to the Civil Hospital but he succumbed to his injury before he reached the Hospital".
At the trial the eye-witnesses were produced to support the prosecution case, there was also evidence of recovery of crime weapon (Khanjar) and clothes from Aslam respondent.
Both the learned Courts below accepted the prosecution version. The trial Court held both the respondents guilty under sections 302 arid 397 read with section 34, PPC and sentenced them accordingly. The learned Judge in the High Court while maintaining the conviction and sentence under section 397/34, PPC set aside the conviction under section 302/34, PPC and instead convicted the accused/ respondents under section 326/34, PPC and reduced the sentences to seven years' R.I. each. Both the sentences of seven years' R.I. under sections 326 and 397, PPC were ordered to run concurrently.
The learned Judge in the High Court while examining the nature of offence observed as follows:
"That there was no previous enmity between the parties, that Muhammad Aslam did not inflict the blow straight away; that he inflicted the blow only when he was resisted. That only one blow and that too, on the non-vital part of the body, i.e. buttock was given; that the blow happened to cut the famoral artery; that the appellants as a layman cannot be saddled with knowledge of precise location of this artery and at the death was due to profused bleeding, haemorrhage and shock. Following the view of learned Supreme Court in case 'Muhammad Feroze v. Muhammad Arif and another' reported as 1976 S.C.M.R. 497, I am of the opinion that from the nature of the injury caused upon the deceased, it is legitimate to infer that it was a hurt which endangered the life of the victim. In this view of the matter, the offence made out is not that of murder or culpable homicide not amounting to murder. The appellant could only be presumed to have intended to cause grievous hurt with a dangerous weapon punishable under section 326 of the Pakistan Penal Code. Resultantly, the conviction recorded under section 30'2, P.P.C. and the sentence awarded thereunder is set aside. The conviction under section 302, P . P . C . is altered to one under section 326, P . P . C . and the appellants are sentenced to 7 years' R.I. each and a fine of Rs.5,000 each, in default thereof to R.I. for one year."
After hearing the learned counsel for the petitioner, we consider it a fit case to examine, inter alia, the following questions:
Whether the reasons which prevailed with the learned Judge in the High Court for converting the offence from section 302, PPC to section 326, PPC are available in this case;
Whether when examining the nature of the offence in a case like the present one vis-a-vis the intention and/or knowledge of the culprit--it was not relevant to consider as to why the? accused had attacked the deceased;
Whether in all cases where death is due to the cutting of the famoral artery the punishment has to be under section 326, PPC or it will depend upon the circumstances of each case including the design of the accused and the weapon used;
Whether the case of Muhammad Feroze v. Muhammad Arif (1976 S C M R 497) was of any help to the accused /respondents; and
Whether in case the offence committed was only under section 326, PPC, Muhammad Aslam respondent should not have been awarded the maximum sentence thereunder with a very heavy, exemplary and deterrent fine.
We accordingly grant leave to appeal against Muhammad Aslam respondent to examine the above and other related questions.
Leave to appeal against Tariq Mahmood respondent is refused as a reasonable possibility that he might not have known that his companion Muhammad Aslam respondent would go to the extent of using the Khanjar against the deceased, could not be excluded.
In case Muhammad Aslam respondent has been released from jail after serving the sentence, warrants of arrest shall issue against him.
S.Q./A--145/S Order accordingly.
0 Comments