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Petitioner: NOOR MUHAMMAD VS Respondent: STATE
1988 S C M R 1028
1988 S C M R 1028 Present: Aslam Riaz Hussain, Javid Iqbal and Saad Saood Jan, JJ
NOOR MUHAMMAD and another‑‑Petitioners
versus
THE STATE‑‑Respondent
Petition for Leave to Appeato.276 of 1987, decided on 30th March 1988.
(On appeal from the judgment and order of the Lahore High Court, Lahore dated 13th July 1987 in Criminal Appeal No.38 of 1984/BWP and Murder Reference No.14 of 1984/BWP).
Penal Code (XLV of 1860)‑‑
‑‑‑Ss.302 & 34‑‑Sentence‑‑Leave to appeal granted to consider whether in view cf the fact that father of the accused petitioner was also present at the time of incident, was it not possible that he was acting under the influence of his father and was thus entitled to lesser penalty under Ch. Asghar Ali, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.
Mian Attaur Rahman, Advocate Supreme Court for the Complainant.
Nemo for the State.
Date of hearing: 30th March, 1988.
ORDER
ASLAM RIAZ HUSSAIN, J.‑‑Facts giving rise to this petiti,7n briefly are that Noor Muhammad and his son Riaz alias Manna. petitioners, were tried alongwith five others for the murder of to persons, namely, Allah Ditta and Ghulam Ali and for causing injuries to Allah Yar, P.W.13. Learned trial Court acquitted four of the accused persons but convicted Nur Muhammad and Riaz alias Manna (petitioners) inter alia, under section 302/34, P.P.C. for which it sentenced each of them to death and a fine of Rs.2,000 each. It also convicted Atta Muhammad co‑accused under section 323/34, P.P. C.
The motive for the offence is stated to be a dispute over consolidation proceedings. The facts of the prosecution case are briefly that on 11th May, 1981 at 9 p.m. Ata Muhammad presented a written application to Muhammad Aman H.C. of Police Station Takhat Mahal that he was owner in possession of Killa No.14 but during the consolidation proceedings it was allotted to Nur Muhammad and he remained in occupation of the same as a tenant. He filed an appeal against the consolidation proceedings and a stay order was issued in his favour. On the night of occurrence just before Ishawela, Allah Ditta, his son and Ghulam Ali his nephew got tractor of Sharaf and went to plough the land of Nur Muhammad son of Hakim Ali which was contiguous to Killa No.13. In the meantime Noor Muhammad, Hameed, Ata Muhammad, Imam Bakhsh, Shah Muhammad, Riaz and Bashir came there by a tractor. They had cottonseed with them. They were going to sow the cottonseed in Killa No.14, after ploughing the same by the tractor. Allah Ditta and Ghulam Ali forbade them from doing so but they did not stop whereupon Allah Ditta and Ghulam Ali made a call for help saying that the accused were ploughing the land unlawfully. On their call his son Allah Yar reached the spot. He, his brother Sharaf as also Nur Muhammad, Baqir and Sikandar also came there. They all forbade Nur Muhammad etc. from ploughing the land, whereuopn Riaz fired a gunshot, hitting Allah Ditta. Nur Muhammad fired the second shot which hit Ghulam Ali his nephew. Allah Yar gave a Sota blow, hitting the gun of Nur Muhammad which got broken and fell down and then Allah Yar grappled with Nur Muhammad but Ata Muhammad inflicted a hatchet blow, hitting the head of Allah Yar and due to this injury Nur Muhammad secured his release and fled away. Allah Ditta and Ghulam Ali died immediately at the spot.
The occurrence was admitted by the accused party but the following counter‑version was given by Nur Muhammad in his statement under section 342, Cr.P.C. in answer to question No.14:
Q. No. 14. Have you anything also to say?
Ans: I am innocent. On the day of occurrence at about b8 p.m. I went out with my licensed gun to have a round of my fields where I saw Allah Ditta, Ghulam Ali deceased persons and Allah Yar P.W. ploughing my land bearing Killa No.14 forcibly although it was under my possession. I forbade them from doing so. They had an altercation with me and they assaulted me with sotas and caused injuries to me in order to kill me. I first of all fired three shots in the air out of which one missed firing and when I apprehended that I was going to be murdered I fired two more shots which hit Allah Ditta and Ghulam Ali deceased. I acted in the exercise of self‑defence by co‑accused were not present at the time of occurrence. Ata Muhammad, Sikandar and other alleged eye‑witnesses were not present at the spot at the time of occurrence."
Learned counsel for the petitioners first argued for the acquittal of Nur Muhammad and Riaz petitioners. Having considered the question in the light of the evidence on the record we feel that they have been rightly convicted under section 302/34, P.P.C.
The counsel then contended that in view of the fact that the father of Riaz petitioner (namely Nur Muhammad petitioner), was also present at the time of the incident, it is quite possible that he was acting under the influence of his father and was, therefore, entitled to the lesser penalty under section 302, P.P.C.
This contention needs consideration. Leave is, therefore, granted with respect to Riaz alias Manna petitioner only, to consider whether, in the circumstances of this case, he was entitled to the lesser penalty under section 302, P.P.C.
Petition of Nur Muhammad petitioner is however dismissed as having no merit.
S.Q. /N‑61/S Leave partly granted.