1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a convict for an offence under section 332, P.P.C. His conviction and sentence has been upheld by the. High Court--he had earlier lost before the two learned lower Courts.
2. Learned counsel for the petitioner has raised two questions one, admittedly of fact and the other of so-called law. The arguments of the learned counsel regarding appraisal of evidence with a view to seek finding of 'not guilty' from this fourth Court are not such so as to justify interference-the appraisal does not suffer from any infirmity, either, of law or principle.
3. ' The so-called question of law in reality on scrutiny has also been found to be one of fact.
4. According to the learned counsel Ghulam Jilani complainant who was found to have been injured by the petitioner and his co-accused; though a public servant, was not performing his duty as such at the time of occurrence. Therefore, as further argued, section 332, P.P.C. Was not attracted.
5. Section 332, P.P.C. Reads as follows:-- "Whoever voluntarily causes hurt to any person being a public servant in the discharge of his, duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
6. ' Learned counsel has taken us through the testimony of P.W.2 a colleague of Ghulam Jilani--both are Forest Guards, who under cross-examination admitted that the cattle which were being taken by both of them to the cattle-pound were found damaging the forest at such a place where none of them at that time, was on duty. That being so, learned counsel further argued, the complainant was not discharging his duty as such public servant when he was said to have been injured by the petitioner and his co-accused.
7. After going through the statement of Ghulam Jilani an impression is gained that Munshi Khan, P.W.1 the other Forest Guard might have made a concession in favour of the accused, when under cross-examination. Be that as it may, he has not been able to give much benefit to the accused as when they were taking the cattle towards the cattle-pound, they were in the act of discharging duty as public servants. Accordingly, the petitioner's case still would be covered by Section 332, P.P.C. The argument of the learned counsel fails.
8. Learned counsel also tried to show that the petitioner did not directly cause any injury to the complainant. He was said to have only helped his coaccused/convict. Accordingly, the learned counsel also tried to argue that Section 34, P.P.C. Was not attracted. This point also relates to appreciation of evidence regarding which we have not been able to find any error of law or principle.
9. ' Leave to appeal, accordingly, is refused.