1988 PLP 122 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal has been filed by Muhammad Ashraf petitioner who alongwith Amjad Ali co-accused was convicted under section 302/34, P.P.C. and each of them was sentenced to life imprisonment plus fine by the trial Court. On appeal a learned Single Judge of the Lahore High Court Lahore maintained their conviction and sentence. The deceased in this case is Muhammad Rafiq. The occurrence took place at 9 p.m. on 20 September, 1983 in Mohallah Tajpura, Gujranwala. F.I.R. was lodged at 11-15 p.m. on the same day by Muhammad Aslam brother of the deceased. From Amjad Ali co-accused was recovered human blood-stained Chhuri. The eye-witnesses of the occurrence are Muhammad Aslam and Sardar Muhammad. The motive is that a month before the occurrence Mst. Allah Rakhi niece of the deceased had come to visit the house of the deceased; and when she reached near the house of Amjad Ali co-accused who was standing in the street cut an indecent joke with her. On this abuses were exchanged between the two of them. On hearing the noise the deceased came out and caught hold of Amjad Ali co-accused and gave him slaps. They were separated by the Mohalladars. It is stated that while leaving the scene of occurrence Amjad Ali co-accused threatened the deceased that he will avenge the insult. On the fateful day the deceased and his brother Muhammad Aslam were returning to their house when both Muhammad Ashraf the present petitioner and Amjad Ali co-accused suddenly appeared. Amjad Ali co-accused was armed with a Chhuri while Muhammad Ashraf petitioner was empty handed. The prosecution case is that Muhammad Ashraf petitioner caught hold of the deceased in Japha and Amjad Ali co-accused gave a Chhuri blow on the right chest of the deceased. The second Chhuri blow was given by him on the left side of the head. Thereafter both of them ran away while the occurrence was witnessed by Muhammad Aslam and Sardar Muhammad P.Ws. It may be noted that Amjad Ali co-accused is not a petitioner before us. The petitioner before us is only Muhammad Ashraf. It was argued by the learned counsel for the petitioner that only Japha has been attributed to Muhammad Ashraf petitioner and that there is no evidence on the record that he had facilitated Amjad Ali co-accused in the commission of crime, for if he had held the deceased in a Japha Amjad Ali co-accused might have not been able to give him Chhuri blow on the chest etc. It was therefore, argued that section 34, P.P.C. has wrongly been applied in this case so far as the petitioner Muhammad Ashraf is concerned. After hearing learned counsel for the petitioner we grant leave in this case to consider as to whether or not in view of the evidence on record section 34, P.P.C. had been correctly applied in the case of Muhammad Ashraf petitioner. M.I./M-233/S Leave granted.