MUHAMMAD BAKHSH Versus STATE

ORDER

1. JAVID IQBAL, J.- -This petition for leave to appeal has been filed by Mohammad Bakhsh and Moosa petitioners who alongwith two others namely Kaura and Razi co-accused were tried for an offence under section 302/34, P.P.C. by the Additional Sessions Judge, Dera Ghazi Khan, who vide judgment, dated 27 September, 1984 convicted all of them under the aforesaid sections and sentenced each of them to life imprisonment plus fine. On appeal a learned Single Judge of the Lahore High Court, Lahore vide judgment, dated 4th February, 1986 maintained the conviction and sentence of the present petitioners but acquitted Kaura and Razi co-accused.

2. The deceased in this case is Khuda Bakhsh. The occurrence took place on 18th August, 1983 at sunrise time within the area of Mauza Dalana, Tehsil and District Dera Ghazi Khan. F.I.R. was lodged on the same day at 2 p.m. by Karam P.W. father of the deceased. The present petitioners were arrested on 28th August, 1983. From both of them were recovered Waholas although these were not found to be blood stained. According to the medical evidence the deceased had nine injuries on his person in the form of lacerated wounds etc. out of which three were on the head, one on the neck, one on left eyebrow and the remaining on other parts of body including thigh and buttock. All the injuries had been caused with blunt weapon but it was one of the head injuries which proved fatal. Except of that injury, the others were simple in nature. The prosecution produced two eye-witnesses of the occurrence namely Karam complainant P.W. father of the deceased and Chakar uncle of the deceased and brother of Karam P.W. The motive as set up by the prosecution is that Mst. Bakhi sister of Razi acquitted co-accused was engaged to the deceased but the accused party broke up the engagement and gave her in marriage to Nabi Bakhsh son of Kaura acquitted co-accused. This resulted in dispute between the parties which was settled after making payment of Rs.16,000 to the deceased. The accused party is stated to have nursed a grudge as to why the deceased had received the said amount. The prosecution story is that on the fateful day the deceased was proceeding to Basti Khaira in the company of his father Karam P.W., his uncle Chakar P.W. and his Phuphi Mst. Bhambi (not produced) in order to inquire about the health of his sister Mst. Begum. When they arrived on the spot suddenly Kaura acquitted co-accused armed with stick and his sons the present petitioners namely Mohammad Bakhsh and Moosa armed with Waholas as well as Razi acquitted co-accused armed with hatchet appeared. Kaura acquitted co-accused shouted a Lalkara whereupon the present two petitioners gave Wahola blows on the head of the deceased who fell down. Then the acquitted co-accused with their respective weapons caused injuries to the deceased who died on the spot. The accused party left the place of occurrence with their respective weapons.

3. The argument raised by the learned counsel for the petitioners before us is not that he is denying the occurrence but it is submitted that the intention of the petitioners was not to cause the death of the deceased but only to give him a beating and it was for that reason that they had used the wrong side of the Waholas. It was submitted that except for one injury which proved fatal, all the other injuries were simple. Learned counsel had not raised this argument before the appellate Court and it is being raised for the first time before us. If the intention was not to cause death of the deceased then there would have not been three injuries on the head out of which one had proved fatal. Learned counsel wants reappraisal of evidence in order that we could form a different inference therefrom than the appellate Court. We have heard him and gone through the record. In our view no case is made out for the grant of leave in this case. The petition is, therefore, dismissed.

4. M.I./M-227/S ????????????????????????????????????????????????????????????????????????? Petition dismissed.