NASIR HUSSAIN AND Another vs The STATE
This petition for leave to appeal is directed against the judgment of the Lahore High Court, which upheld the convictions of the petitioners, Nasir Hussain and Ghulam Hussain, for the murder of Muhammad Sharif. The trial court had sentenced Nasir Hussain to death and Ghulam Hussain to life imprisonment for the murder committed with lathis. The petitioners contend that the offence should be mitigated from murder under Section 302 to culpable homicide not amounting to murder under Section 304 (Part I), Pakistan Penal Code 1860, arguing that the deceased provoked the attack by violating a prior compromise agreement to avoid the village. Furthermore, the petitioners challenge the application of Section 34, Pakistan Penal Code 1860, regarding common intention, asserting that the fatal injury was a single blow by Nasir Hussain and that the death sentence was disproportionate given the provocation. The Supreme Court, finding that these contentions regarding the nature of the offence, the applicability of common intention, and the appropriateness of the death sentence require further judicial consideration, granted leave to appeal.
- Does the violation of a prior compromise agreement by a deceased person constitute sufficient provocation to reduce a charge of murder to culpable homicide not amounting to murder?
- Can a co-accused be held liable under the principle of common intention for a fatal injury inflicted by another when the remaining injuries are merely simple?
- Is a sentence of death appropriate when the victim has effectively invited the attack by violating a prior agreement?
- Section 302, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. NASIM HASAN SHAH, J.-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.
2. 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.
3. 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.
4. 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 nobe 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.
5. These contentions require further consideration. Leave is, accordingly granted.