1987 PLP 29 (SCMR)

Date of hearing: 28th October, 1986. ASLAM RIAZ HUSSAIN, J.‑‑Muhammad Riaz and Muhammad Nawaz and Muhammad Ilyas, were tried for the murder of Ghulam Hassan. The occurrence in this case took place at 9 p.m. on 29‑7‑1979.

2. The motive for the offence is stated to be that the Haveli of the accused persons is adjacent to the residential house of Ghulam Hassan (deceased) who was a Fire Master in Railway Department. The accused persons used their Haveli as an Akhara, i.e. a wrestling place and used, to play the Tape Recorded in full volume and used to indulge in dirty talk. Ghulam Hassan deceased had forbidden them from doing so, which annoyed them.

3. The prosecution case briefly stated is that on 29‑7‑1979 at 9 p. m. Ghulam Hassan (deceased) after Iftari went to the shop of Kaley Khan in Rasulpura to take tea and sat there. In the meantime Muhammad Ilyas, Muhammad Nawaz and Muhammad Riaz alias Risati sons of Muhammad Shafi came there. Riaz was holding a dagger. Muhammad Nawaz raised a Lalkara that Ghulam Hassan should not be allowed to escape. Muhammad Ilyas caught Ghulam Hassan in his Japha. Riaati gave a dagger blow to the deceased which hit him on the left side of his abdomen. Muhammad Nawaz picked up a brickbat and threw it at Ghulam Hassan which hit on his face and it fractured his tooth and also caused injury on his face and right cheek. After hearing noise the informant, Nazir Hussain and Muhammad Fayyaz and other persons came there and rescued Ghulam Hassan from the assailants. They then ran away while raising Lalkaras. The deceased was removed to the Mayo Hospital in injured condition and was admitted there. In the first instance the case was registered under section 307/325/34, P.P.C., on the statement of Muhammad Jaffar, recorded by Ghulam Ahmad, A.S.I. (P.W. 10). The deceased expired at 2‑30 a.m. on 31‑7‑1979 and section 302, P.P.C., was then added.

4. The trial Court convicted the petitioners under section 302/34, P.P.C., and sentenced each of them to imprisonment for life and a fine of Rs.3,000 each (3 years' R.I. in case of default). Fine if recovered was ordered to be paid to the heirs of the deceased as compensation. It, however, acquitted Muhammad Ilyas. The appeal filed by the petitioners against their convictions was dismissed vide judgment of the High Court, dated 17‑12‑1981. They now seek leave . to appeal against the above‑said judgment.

5. We have heard the petitioners' counsel at length. The main contention raised by him requiring consideration by this Court is that was it possible for Muhammad Nawaz (aged 16/17 years) who did not know that Muhammad Riaz co‑accused was carrying knife, or that he would stab the deceased in the abdomen. As such he cannot be said to have shared the common intention to kill the deceased. In other words application of section 34, P . P. C . , is not attracted in his case. Leave is, therefore, granted on this question.

6. Petitioners' counsel also submitted that both the petitioners being young boys should be granted the benefit of section 382‑B, Cr.P.C. Notice to the Advocate‑General, Punjab, on this question as well.

7. Since Muhammad Nawaz petitioner is stated to have already undergone 8 years' imprisonment, his appeal may be fixed at an early date so that the matter can be decided without any further delay, let the appeal arising out of this petition be fixed for hearing at Lahore on the 8th of November, 1986. M. I.??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.