1. SHAH NAWAZ KHAN, J -Muhammad Imran of village Bedadi. Police Station Shinkiari, Tehsil and District Mansehra, has submitted this petition for special leave to appeal against the Judgment/Order of the Peshawar High Court, dated 18-3-1981, whereby Gohar Rehman accused of offence under section 302, P. P. C. Was granted bail.
2. Gohar Rehman and seven other persons were challaned on the report of Muhammad Imran, which he lodged. At Police Station Shinkiari, on 16-1-1981:, at 11-30 a. m. For offences under section 302/307/308/147/148/149, P. P. C.
3. Muhammad Imran is brother of. Khushal deceased. The scene of occurrence is 5-6 miles from the P. S. The alleged occurrence took place at &30 a. m. There was a dispute between the parties about the land. Accord--ing to the claim of the complainant the possession of the land was with the complainant party as owners since long. A portion of it was purchased by Sarfraz brother of Gohar Rehman accused. Sarfraz brought a suit for possession of his land on 27-I 1-1.980 in the Court of Senior Civil Judge. Sarfraz had also submitted a complaint under section 145, Cr. P. Code with respect to this very land, but that complaint was dismissed on 15-1-1981.
4. The allegations are that on 16-1-1981, the deceased, his brothers Muhammad 1mran and Mir Zaman were busy in ploughing the land, when Gohar Rehman who was armed with a stick and his companions also armed came to the spot. Gohar Rehman inflicted blows on the head of Khushal Khan with his stick as a result of which he fell down. The other accused also participated in the occurrence, but we are not concerned with them at this moment as they had all been released on bail. Muhammad Imran and Mir Zaman were also injured. The only stress is about the release of Gohar Rehman on bail. His application was rejected by the Sessions Judge, Mansehra on 12-2-1981 on the ground that he was charged for giving fatal blows to Khushal deceased. But a learned Judge of the High Court accepted his bail application by his order dated the 18th March, 1981. He granted bail to Gohar Rehman against which the present petition has been filed.
5. One of the points, which was considered by the learned Judge of the High Court was whether the land in question was being ploughed by the complainant and his brother Khushal Khan deceased although it belonged to the accused party, and that they were forcibly doing it on the day of occurrence. The learned Judge held that the story given in the F. I. R. Was apparently exaggerated because in his opinion some of the accused persons, who had been assigned fire-arms and it is also alleged that they did fire, but no body was injured and instead the Stick blows inflicted by Gohar Rehman on Khushal proved fatal. The second ground was whether Gohar Rehman had intended to kill Khushal because he only gave him stick blows and if it was not proved that there was an intention to kill, therefore, the case would not come under section 302, P. P. C.
6. We have heard the learned counsel for the parties. Gohar Rehman is alleged to be armed with an iron-charged stick, which later recovered was found to be stained with blood, but the result from the Chemical Examiner and the Serologist is awaited. Khushal, deceased, according to the medical report, had suffered four injuries, two of which were minor and about the other two the opinion of the Doctor was that one was a lacerated wound 3/4" X 1/4" scalp deep on right specula region and the second was a bruise 4' x 2' on left partietal region. Death, according to the Doctor, had occurred due to injury to brain. Therefore, the High Courts finding that -killing of Khushal by Gohar Rehman with a stick may not come under section 302 P. P. C. Does not appear to be correct. There was no propriety in such observation of the High Court. However, the discretion exercised by the High Court should not normally be interfered with unless it is shown that the discretion is exercised 'capriciously or arbitrarily. We, therefore, see no reason to interfere with the impugned order of the High Court notwithstanding the fact that we may not agree with the observation made in the impugned order to the effect that causing death by giving stick blows will not come under the mischief Or section 302, P. P. C. And it should not stand in the way at the time of trial of the case.
7. As a result, the petition fails and is hereby dismissed.