1968 P Cr (PLP)

Ss. 302 & 304--‑Conviction under S. 302 altered by High Court to one under S. 304 and sentence of transportation for life awarded‑--Whether in circumstances as found by High Court transportation for life appropriate

Special leave to appeal granted by Supreme Court to consider question. Khan Abdul Qayyum Khan, Advocate Supreme Court instructed by Muhammad Nazar Khan, Attorney for Petitioners. Nemo for the State. Date of hearing: 29th March 1968. SAJJAD AHMAD, J.‑The 5 petitioners along with Fazal Rehman, father of the three of them namely Faqir Rehman, Amir Rehman and Habibur Rehman were charged under sections 148, 302/149 (two counts) and 307/149 (two counts) for having formed an unlawful assembly and committed noting armed with deadly weapons and having in prosecution of the common object of that assembly committed the murders of Ali Bahadur and his elder brother Wali Dad and in attempting at the lives of Khan Bahadur and Ali Haider P. Ws., brothers of the two deceased persons. Fazal Rehman mentioned above was shot dead in the Court premises during the inquiry proceedings of this case on 4‑11‑1965 and Khan Bahadur P. W., who was charged for that murder, has since been convicted and sentenced to death by the Sessions Judge, Mardan. The trial of the petitioners resulted in the conviction of all of them under sections 148, 302 (two counts) and 307 (two counts), P. P. C. read with section 149, P. P. C. Faqir Rehman and Amir Rehman were sentenced to death on both the murder counts while Habibur Rehman, Umar Hayat and Miqdar were sentenced to transportation for life each. In addition, all were sentenced to 7 years' R. L, under section 307/149, P. P. C. (two counts) and to 2 years' R. I., under section 148, P. P. C. The petitioners appealed to the High Court. The learned Judges of the High Court formed the view as stated in para 21 of their judgment that the petitioners were entitled to the benefit of exception 4 to section 300, P. P. C. as the fight between the parties was sudden and unpremeditated and the petitioners had not taken any undue advantage or acted in a cruel manner. All the petitioners other than Habibur Rehman had between themselves sustained 19 injuries including 4 incised wounds which were dangerous to life, as against 19 on the complainant party inclusive of those suffered by the two deceased persons. In consequence the High Court altered the conviction of the petitioners from sections 302/149 and 307/149, P. P. C. to sections 304(1)/149 and 308/149, P. P. C. respectively and sentenced each of them to transportation for life upon the first two counts and to 2 years' R. I., each for the second. The convic tions and sentences under section 148, P. P. C. were maintained and the sentences were ordered to run concurrently. It is argued by the learned counsel for the petitioners that the guilt of Habibur Rahman petitioner is not satisfactorily established as his name does not appear in the F. I. R., and the learned Judges of the High Court have disposed of that point merely on a conjuctural hypothesis. It is further stressed for him that the absence of any injury on his person, when all the others bore them, is a strong indication of his non‑participation in the fight. It is also argued by the learned counsel that after giving the benefit of exception 4 to section 300, P. P. C. to the petitioners, the sentences of transportation awarded to them are wholly dispro portionate to the extent of their guilt. We feel that the case of Habibur Rehman petitioner requires a further examination, as also the appropriateness of the sentences awarded to the petitioners in the circumstances of the occurrence as found by the High Court. We allow this petition on these limited points only. Leave granted.