1988 PLP 378 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the complainant-side in this murder case, from the judgment dated 1-6-1983 of the Lahore High Court; whereby respondents' appeal was partly allowed. The occurrence and the participation of at least two accused, namely, Nazra and Inayat respondents in the occurrence was not denied by the defence before the High Court. Their learned counsel had then stressed regarding Nazra accused /respondent, the point that his case "is covered by Exception 4 to section 300 P.P. C." After careful consideration of the evidence, both the learned Courts below came to the conclusion that the motive alleged by the prosecution had not been established and further that it was a sudden affair in which the accused party had given blows to the three members of the complainant-side, one of whom, namely, Gulzar Ahmad died while the other two who had received injuries appeared as P.Ws. The weapons used were Sotas. The learned trial Judge convicted only Nazra respondent under section 302, P.P.C. and awarded him sentence of life imprisonment besides fine. He was also convicted under sections 325/34 and 323/34, P.P.C in respect of the injuries to the P.Ws. Two of the other accused, namely, Gama and Manzoor were acquitted while Aslam and Inayat respondents were convicted and sentenced under section 325/323. P.P.C. by application of section 34, P.P.C. They were not convicted under section 302, P.P.C., even by application of section 34, P.P.C. The learned Single Judge in the High Court treated the case of Nazra respondent as one covered by Exception 4 to section 300, P.P.C., set aside his conviction under section 302, P.P.C. and instead convicted him under section 304, Part-I P.P.C. and awarded him a sentence of seven years' R.I. His conviction and sentences under sections 325 and 323, P.P.C., were maintained. Learned Judge in the High Court after analysis of the prosecution evidence regarding Nazra respondent came to the following conclusion: "In the situation explained above particularly the fact that the occurrence had started while the deceased had pushed out the cattle of the appellants by giving them Danda blows and when the appellants brought their cattle again for grazing, the deceased again prevented them and the abuses were also exchanged, the contention raised by the learned counsel for the appellants that it was a case of sudden occurrence, seems well founded. The case of appellant Nazra is thus covered by Exception 4 of section 300, P.P.C. which reads as follows:-- Exception 4.--'Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commit the first assault.' It is obvious that Nazra appellant had neither taken undue advantage nor acted in a cruel or unusual manner. The convic tion under section 302, P.P.C. of Nazra appellant, therefore is set aside. He is convicted under section 304, Part 1, P.P.C. and sentenced to undergo seven years' R.I " After hearing the learned counsel for the petitioner, we are of the view that the possibility of exchange of abuses between the parties cannot be excluded. That would satisfy only a part of the prerequisite for application of Exception 4 to section 300, P.P.C. There is no finding by the High Court that there was a "sudden fight" between the parties before the accused started giving blows the complainant-side. The question whether in these circumstance the accused /respondent could be given the benefit of Exception 4 to section 300, P.P.-C. would require examination, .We accordingly grant leave to appeal against him only. If he has since been released, bailable warrants in the sum of Rs.25,000 with two sureties in the like amount returnable to District Magistrate, Gujrat, for his appearance shall issue. Learned counsel for the petitioner has not been able to make out a case for reversal of the impugned judgments regarding the two other accused namely, Aslam and Inayat respondents Nos.2 and

3. The petition against them accordingly, is dismissed. M.I. /A-142/S Order accordingly.