1987 PLP 177 (SCMR)

JAVID IQBAL, J.‑‑Leave to appeal had been granted in this case to Muhammad Nawaz appellant in order to consider as to whether in his case section 34, P.P.C. was attracted or not. Further it was granted to consider the case of both Muhammad Nawaz and Muhammad Riaz appellants being young, should be granted the benefit of section 382‑B, Cr.P.C. or not. The background is that appellants Muhammad Riaz aged 15/16 years old and Muhammad Nawaz 16/17 years old alongwith acquitted co‑accused Muhammad Ilyas were tried under section 302/34, P.P.C. for the murder of Ghulam Hassan but the trial Court vide its judgment dated 6th February, 1980 convicted Muhammad Riaz and Muhammad Nawaz appellants under section 302/34, P.P.C. and sentenced each of them to life imprisonment plus fine. However, Muhammad Ilyas was acquitted. Learned Single Judge of the Lahore High Court Lahore dismissed their appeal maintaining their conviction as well as the sentences awarded to them. The occurrence took place at 9 p.m. on 29th July, 1979 at Rasul Pura at a distance of 21 km. from Police Station Baghbanpura Lahore. The matter was reported to the police by Muhammad Jafar P.W.3 brother of the deceased at 11‑30 p.m. on the same day in Mayo Hospital Lahore. The appellants were arrested on 31st July, 1979 and from Muhammad Riaz appellant was recovered human blood‑stained dagger on 3rd August 1979. The prosecution has produced 2 eye‑witnesses of the occurrence namely Muhammad Jafar P.W.3 brother of the deceased and Muhammad Fayaz P.W.4. Two other eye‑witnesses namely Nazir Hussain and Allah Ditta were given up as won over. There were two simple injuries on the person of Muhammad Nawaz appellant whereas there were three abrasions and two incised wounds on the person of the deceased. There was a stab injury in his abdomen attributed to Muhammad Riaz appellant whereas the lacerated wounds on the face which had led to the missing of upper tooth were attributed to brickbat throwing of Muhammad Nawaz appellant. The motive for crime as stated by the prosecution is that the Haveli of the accused party was adjacent to the house of the deceased. The appellant used their Haveli as an Akhara (wrestling place) and used to play the tape‑recorder in full volume as well as indulged in dirty talk. The deceased tried to stop them which annoyed them. According to the prosecution version on the fateful day while the deceased was sitting at the shop of one Kaley Khan the appellants along with the acquitted co‑accused came there. Muhammad Riaz appellant was holding a dagger. Muhammad Nawaz appellant raised a Lalkara to the effect that the deceased should be caught hold of. Then Muhammad Ilyas acquitted co‑accused held the deceased in a Japha and Muhammad Riaz appellant gave him a dagger blow which fell on the left side o1 his abdomen. Thereafter, Muhammad Nawaz appellant picked up a brick bat and threw it at the deceased which fell on his face and fractured his tooth and also caused injuries on his face and right cheek. Or hearing alarm the eye‑witnesses were attracted to the scene of crime and rescued the deceased from the assailants. The deceased was removed in an injured condition to the Mayo Hospital Lahore on 27th July, 197 but he expired on 31st July, 1979 at 2‑30 a.m. As has been pointed out earlier leave was granted in this case to consider the question as to whether any case was made out for Muhammad Nawaz appellant, about whom it was argued that he did not know that the other appellant Muhammad Riaz was carrying a knife or that he would stab the deceased in the abdomen. Thus it was submitted that he could have not shared the common intention with Muhammad Riaz appellant to murder the deceased. Consequently application of section 34, P.P.C. was not attracted in his case. We have considered this argument of the learned counsel. The eye‑witnesses account is to the effect that the brick bat was thrown by Muhammad Nawaz appellant at the deceased after he had been stabbed in the abdomen by Muhammad Riaz appellant. In such circumstances it is evident that he shared the common intention with Muhammad Riaz appellant on the spot to murder the deceased, as he had thrown a brickbat at his face when stab injury had already been caused to him by Muhammad Riaz appellant. In that view of the matter in our considered opinion application of section 34, P.P.C. was fully attracted to the present case. Consequently there is no ground for altering the conviction and sentence so far as Muhammad Nawaz appellant is concerned. It was next argued that both the appellants being young should have been granted the benefit of section 382‑B, Cr.P.C. We note that Muhammad Riaz appellant is stated to be 15/16 years old at the trial stage whereas Muhammad Nawaz appellant is stated to be 16/17 years old. The occurrence had taken place about a year before and at that time Muhammad Riaz appellant may have been 14/15 years old and Muhammad Nawaz appellant 15/16 years old. We note that the trial Court as well as the appellate Court have already taken a lenient view by awarding lesser penalty to the appellants. However since they are young, we direct the jail authorities to grant to the appellants the benefit of the provisions of section 382‑B, Cr.P.C. at the time of computation of the sentence of life imprisonment awarded to each of them. With this modification the appeal of the appellants is dismissed. M. I. Order accordingly