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Criminal Petition No. 28 of 1981, decided on 30th January, 1983.
(On appeal from the judgment, dated 10‑12‑1980 of the Lahore High Court, Lahore in Criminal Appeal No. 1025 of 1979).
--Art. 185(3) read with Penal Code (XLV of 1860), Ss. 302 & 304/34 ‑ Murder ‑ Leave to appeal ‑ Granted to consider, (f) whether offence committed by petitioners would not fall under S. 302 but under S. 304(1); (U) whether one of petitioners could not be burdened with a common intention to cause fatal injury to deceased, and (iii) whether sentence of death was not called for where attack practically invited by deceased himself.
M. B. Zaman, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing: 30th January, 1983.
This petition is directed against the judgment and order of the Lahore High Court dated 10‑12‑1980 in‑Criminal Appeal No. 1025 of 1979.
The relevant facts are that Nasir Hussain aged 18 (Petitioner No. I herein) and his tenant Ghulam Hussain also aged 18 (Petitioner No. 2 herein) armed with Lathis murdered Muhammad Sharif deceased. ');'he learned trial Court, namely, Sessions Judge, Sargodha, convicted the petitioners on 8‑9‑1979 and sentenced Nasir Hussain to death while Ghulam Hussain Co- accused was sentenced to life imprisonment.
The motive for the crime is stated to be that about 6/7 months before the present occurrence Nasir Hussain petitioner No. 1 and his brothers Ghulam Muhammad and Ahmad Khan had fought with the deceased, Ghaus Muhammad P. W. 7 and Ata Muhammad (not produced in evidence) in which both sides received injuries. However, some time thereafter Talib Hussain and Malik Chiragh (both not produced) had effected a compromise between the parties on the condition that the deceased will not visit village Jarola. On the day of occurrence the deceased had come to village Jarola whereupon he was murdered by the petitioner.
It is contended by Mr. M. B. Zaman, learned counsel for the petitioners, that since the attack was provoked by the action of the deceased in coming to village Jarola despite his undertaking not to do so, in the compromise, the offence committed by the petitioners would not fall under section 302, P. P. C. but under section 304 (Part 1), P. P. C. It is further contended that the fatal injury was a single blow inflicted by Nasir Hussain, petitioner No. 1, while all the remaining injuries received by the deceased were only simple injured and, in these circumstances Ghulam Hussain, petitioner No. 2, could no be burdened with a common intention to cause the said injury. Therefore, the case did not call for the application of section 34, P. P. C. In any event the sentence of death was clearly not called for in such a case where the attack had practically been invited by the deceased himself.
These contentions require further consideration. Leave is, accordingly granted.
S. Q. Leave granted.
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