1996 PLP 985 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

Leave was granted in the above appeal to consider the compromise between Allah Ditta and Muhammad Saqlain (appellants Nos. 1 and 2) on the one hand and the legal heirs of the deceased Tanvir Ali on the other hand. The , compromise has been accepted today and Allah Ditta (appellant No. l) and Muhammad Saqlain (appellant No.2) have been acquitted in the case as a consequence thereof. Since there was no mention about the case of Mushtaq Hussain alias Pappu (appellant No.3 petitioner), in the leave granting order dated 6-12-1994, his petition for leave to appeal is being disposed of now. Mushtaq Hussain alias Pappu, petitioner alongwith Allah Ditta son of Ghulam War, Muhammad Saqlain son of Tufail Ahmed, Muhammad Ashraf son of Fida Hussain and Azhar Abbas alias Nanna son of Fazal Abbas, was tried for the murder of Tanvir Ali and for launching murderous assault on P.W. Imran Zamir. The trial Court. convicted all the five accused persons under section 302/149, P.P.C.,' but awarded death sentence only to Allah Ditta (appellant No.1) while remaining accused persons were awarded life imprisonment. They were directed to pay fine of Rs.10,000 each or in default to undergo R.I. for 4 years. They were further directed to pay compensation to the legal heirs of the deceased in the sum of Rs.10,000 each or in default thereof to undergo R.I. for 6 months. All the accused persons in the case were also convicted under section 307/149, P.P.C. and sentenced to 10 years' R.I. plus fine of Rs.5,000 each or in default to undergo R.I. for 2 years. They were also directed to pay compensation of Rs.5,000 each to the injured P.Ws. or in default thereof to undergo further R.I., for 6 months. The High Court while hearing the appeal against conviction, and the murder reference, acquitted co-accused Muhammad Ashraf son of Fida Hussain and Azhar Abbas alias Nanna son of Fazal Abbas giving the benefit of doubt, while the convictions of the remaining appellants namely, Allah Ditta, Muhammad Saqlain and Mushtaq Hussain alia3 Puppu under sections 302/34 and 307/34, P.P.C. were upheld. However, the death sentence awarded to Allah Ditta by the trial Court was not confirmed by the High Court which was altered to life imprisonment. The learned counsel for Mushtaq Hussain alias Puppu, petitioner, contended before us that the conviction of Mushtaq Hussain alias Pappu, under section 302, P.P.C. is not sustainable in law as according to the prosecution story, Mushtaq Hussain alias Puppu had caused only one injury to one of the P. Ws. namely, Imran Zamir. The learned counsel contended that the fact that the petitioner Mushtaq Hussain alias Puppu made no attempt to cause any injury to the deceased would go to show that he did not share any common intention with other co-accused in the case in so far the murder of Tanvir Ali was concerned. According to prosecution story, on .3-8-1990 at about 8-15 p.m. the complainant Zamir-ul-Hussan P.W.9 along with Bahab (given up P.W.) came out of mosque situated adjacent to the medical store. Tanvir Ali (deceased), Tauqir Ali and Imran Zamir injured P. Ws. were going towards their house after closing the shop at that time. When they reached in front of the street near the house of Mukhtar Hussain, Allah Ditta Muhammad Saqlain and Mushtaq Hussain alias Pappu armed with daggers and Muhammad Ashraf and Azhar Abbas empty-handed appeared at the scene. They raised Lalkara. Muhammad Ashraf and Azhar Abbas allegedly caught hold of Tanvir Ali from his neck while Allah Ditta inflicted a dagger blow on the left side of his chest. Tauqir Ali and Imran Zamir P. Ws. tried to intervene whereupon Muhammad Saqlain gave a dagger blow to Tauqir Ali which hit on the left side of his flank. Mushtaq Hussain gave a dagger blow to Imran Zamir on right side of his back. The deceased and the injured P.Ws. were removed to the Shah Jawana Hospital, where Tanvir Ali succumbed to injuries. The motive behind the incident was stated to be that one Shakeel son of Fiaz Muhammad a relative of the accused party had friendship with the deceased and the accused party suspected the deceased having illicit relations with the said Shakeel. Six days before Moharram, there was a fight between the parties over this matter and the deceased and the injured P.Ws. had beaten the accused party. The incident in which the deceased lost his life and the P.Ws. were injured, was the fall out of that incident. The trial Court as well as the High Court believed the prosecution story which was supported by the evidence of eye-witnesses and the motive alleged in the case and the medical evidence. The presence of 2 eye-witnesses in the case could not be doubted as both the eye-witnesses were injured during the incident. The fact that the petitioner Mushtaq Hussain alias Pappu came armed with other two accused convicted by the High Court under section 302/34, P.P.C., and during the incident when the deceased was attacked by Allah Ditta, the present petitioner attacked and injured the P.W. Imran Zamir who tried to intervene and save the deceased, would show that the petitioner shared the common intention with the other accused persons. The trial Court and the High Court, therefore, committed no error in convicting the petitioner alongwith two others under sections 302/34, P.P.C. and 307/34, P.P.C. The learned counsel for the petitioner was unable to point out ally misreading of evidence by the two Courts below in arriving at the conclusion that the petitioner Mushtaq Hussain alias Pappu shared common intention alongwith other 2 co-accused while causing murder of Tanvir Ali. The High Court has not violated any rule of safe administration of justice while appreciating the prosecution evidence in the case. No case for interference with the sentence awarded to petitioner Musthaq Hussain alias Pappu under sections 302/34, P.P.C. and 307/34, P.P.C. is made out. The petition of Mushtaq Hussain alias Pappu is, accordingly, dismissed. This judgment disposes of the above appeal finally as well as petition of Musthaq Hussain alias Pappu. N.H.Q./A.1267/C Order accordingly.