Pervez Akhtar petitioner was tried alongwith his brother Zafar Iqbal and father Mahmud Ghazanvi on a charge under section 302/34, P. P. C. For committing the murder of one Muhammad Arshad, by the learned Additional Sessions Judge, Lahore. The petitioner and his brother were both convicted under section 304, Part 11 read with section 34, P.P.C. And were sentenced to undergo R. I.
For 10 years and a fine of Rs. 5,000 each and in default of payment of fine to further undergo R. I. For one year. His father Mahmud Ghaznavi was, however, acquitted by the learned Additional Sessions Judge, Lahore. The petitioner had filed a petition under section 426, Cr. P. C. Praying for suspension of order of sentence passed by the learned Additional Sessions Judge against him on the ground that after the finding of the learned Additional Sessions Judge that the death of Muhammad Arshad had occurred in a sudden fight in the heat of passion upon a sudden quarrel, the petitioner could not have been convicted under section 304, Part II by applying the provisions of sec--tion 34,.P. P. C. As the alleged fatal blow was given by Zafar Iqbal not in furtherance of any common intention. The petitioner has also stated in his petition that he is 16 years old and on that account also the order of sentence passed against him should be suspended.
2. The material facts of the prosecution case relevant for the dis--posal of the present petition are that on 20th April, 1979 at about 3-00 p.m. Pervez Akhtar petitioner had quarrelled with Muhammad Arshad deceased at his shop when the latter had asked him to pay the amount of Rs. 70.80 due from him on account of fruit purchased by him on credit. The petitioner and Muhammad Arshad deceased had also exchanged abuses with each other but the situation was saved from taking an ugly turn by the timely intervention of Muhammad Aslam, Muhammad Anwar and Muhammad Riaz since deceased. The petitioner left the shop of Muhammad Arshad with a threat that he would return soon to pay him his dues. After a short while he accompanied by his brother Zafar Iqbal and father Mahmud Ghazanvi returned to the shop of Muhammad Arshad deceased. Mahmud Ghazanvi raised lalkara whereupon the petitioner caught hold of Muhammad Arshad into his arm's fold (japha) while War Iqbal gave a Churri blow on his left flank. After receiving the stab wound Muhammad Arshad fell down on the ground. He was immediately rushed to the hospital but he succumbed to the injury received by him before he could be provided any medical aid.
3. At the trial the petitioner and his co-accused pleaded that they had been falsely implicated in the case because Pervez Akhtar petitioner had given a beating to Muhammad Anwar complainant in the morning on the day of occurrence as he had teased some girls. Muhammad Arshad according to them had been stabbed by one of the passengers of a rickshaw in the scuffle which had ensued after the rickshaw had hit the leg of Muhammad Arshad deceased while he was sitting on a cot alongwith Muhammad Riaz deceased and Muhammad Aslam. The learned Additional Sessions Judge, however, rejected the aforementioned plea taken up by the petitioner and his co- accused. Petitioner's father Mahmud Ghazanvi was acquitted by the learned Additional Sessions Judge as he had taken no active part in the commission of Muhammad Arshad's murder and had been attributed only a proverbial lalkara and also because he had been found innocent during the investigation of the case. As regards the petitioner and his brother War Iqbal the learned Additional Sessions Judge found that the death of Muhammad Arshad had 'not occurred as a result (if premeditation on their-part and that it has occurred in a sudden fight .In the heat of passion upon a quarrel among the teenagers of pre-mature minds. He, accordingly, convicted them under section 304, Part II read with section.34, P. P.. C. And awarded sentence 'as noticed earlier.
4. Learned counsel for the petitioner has argued that in a east of conviction under section 3114, Part-II, P. P. C. The element of intention is missing because the accused is convicted for causing death by. Ah. Act done with the knowledge that it is likely to cause death but not with the intention of causing death. The provisions of section 34, P. P. C.. Are not attracted in - such .a case because the accused is convicted for the criminal act done by some other person only if that act was done in furtherance of the common intention. Learned counsel for the petitioner has also contended that the order of sentence against the petitioner should be suspended as he was under the age of 16 years at the time of the occurrence and as such his case was covered by the first proviso to sub-- section (1) of section 497, Cr. P. C. The principles of which are applicable even to petitions filed under section 426, Cr. P. C. Learned counsel for the petitioner has also referred to the provision of section 5 of the Probation of Offenders Ordinance 1960 which empower the Court to make a probation order in respect of persons convicted of any offence other than the offences specified in clause (a) of subsection (1) of section 5. According to the learned counsel for the petitioner the case of Pervez Akhtar petitioner is not covered by clause (a) of subsection (1) of section 5 of the Probation of Offenders Ordinance 1960 as he has been convicted under Part-II of section 304, P. P.
C. And has been awarded R. I. For 10 years. The petitioner's case merits consideration for placing him under the supervision of a Probation Officer in view of his young age and the fact that he is not a previous convict. It has, therefore, been contended by the learned counsel for the petitioner that the above aspect of the case may also be considered while dealing with petitioner's petition under section 426, Cr. P. C.
5. The learned counsel for the State has opposed the petitioner's prayer for suspension of order of sentence on the ground that the petitioner had taken active part in the commission of murder of Muhammad Arshad inasmuch as by catching hold of the deceased into his arms-fold he had facilitated the commission of his murder by his brother Zafar Iqbal. Learned counsel for the State has also drawn my attention to the Supreme Court's decision, in Siraj Mia and 2 others v. The State (1969 SCMR 490 ) where conviction of three accused under section 304, Part-II read with section 34, P. P. C. Was upheld. It has been contended by the learned counsel for the State that the question of legality of the petitioner's conviction should not be - determined while considering his petition under section 426, Cr. P. C. As this matter can more appropriately be dealt with at the time of hearing of the appeal.
6. I have carefully considered the arguments of the parties' counsel. Although it is true that no final view can be expressed with regard to the legality of the petitioner's conviction based on the provisions of section 34, P. P. C. While dealing with the present petition under section 426, Cr. P. C., the petitioner's contention that the provisions of section 34 are inapplicable to his case, cannot be totally brushed aside because the same principles which are kept in view while dealing with petitions for bail under section 497, Cr. P. C. Are taken into consideration while dealing with petitions under section 426, Cr. P. C. If it appears that there are sufficient grounds for examining the legality of the petitioner's conviction, the order of sentence passed against him can be suspended under section 426, Cr. P. C. The learned counsel for the petitioner has raised an important legal issue with regard to the application of the provisions of section 34; P. P. C. In the present case and it certainly requires a detailed examination.
7. The facts of Seraj Mia's case referred to by the learned counsel for the State are distinguishable from the facts of the petitioner's case inasmuch as in the reported case all the accused had jointly assaulted the deceased and had given him prolonged beating to extort confession from him.
There was no evidence as to which of the three accused had delivered fatal injuries to the deceased but the absence of such evidence was considered immaterial by applying the provisions of section 34, p. P. C. And all the accused were convicted under section 304, Part=II, p. p.
C. In the present case the fatal injury to Muhammad Arshad deceased is attributed to Zafar Iqbal while the petitioner had only caught hold of the deceased into his arms-fold, it is to be seen whether under the circumstances the petitioner can be held vicariously liable for the act of his brother War Iqbal when according to the learned Additional Sessions Judge none of them had any intention to kill the deceased. One of the requirements for the application of section 34, P. P. C. Is that it must be proved that the criminal act was done in concert pursuance to a prearranged plan.
The learned Additional Sessions Judge in the present case has observed that there was no premeditation on the part of the peti--tioner and Zafar Iqbal for committing the murder of Muhammad Arshad. Whether in view of this finding the provisions of section 34, P. P. C. Are applicable or not needs further examination. In Sahibzada and others v.
Crown (PLD 1950 Pesh. 60) it was observed that the provisions of section 34, P. P. C. Would in no case apply to an offence falling under section 304, Part-I1, P. P. C. How for the above observations hold good in the petitioner's case will be considered at the time of hearing of the appeal but these observations at least show that the question of legality of the petitioner's conviction does require examination.
8. The petitioner's prayer for suspension of order of sentence also merits consideration on the ground of his age because it is possible that he was under the age of 16 years on the day of occurrence in view of the fact that his age was recorded as .16 years by the learned Additional Sessions Judge on 7th February, 1980 when his statement under section 342, Cr. P. C. Was recorded while the occurrence had taken place on 20th April, 1979.
9. As regards the application of the provisions of section 5 of the Probation of Offenders Ordinance 1960 to the petitioner's case it is to be noticed that the Court can exercise powers under section 5 of the aforementioned Ordinance after taking all the circumstances of the case into consideration if the Court is of the opinion that it is expedient to make a probation order. At this stage it is not possible to express any view whether the facts of the petitioner's case warrant the exercise of powers under section 5 of the Probation of Offenders Ordinance 1960 or not as it requires a detailed examination of the facts of the case which can more appropriately be undertaken at the time of hearing the appeal.
10. For the foregoing reasons I allow the petitioner's prayer for suspension of order of sentence. He shall be released on furnishing bail C bond in the sum of Rs. 20,000 with two sureties in the like amount each to the satisfaction of A. C. Sadar, Lahore.