P L D 1958 (W (PLP)

ABDUL HAMID, J.‑Ghulam Ahmad appellant was sen tenced to seven years R. I. under section 304, P. P. C. for causing the death of Ghulam Ali. He was also sentenced to one year's R. I. under section 324, P. P. C. for inflicting a simple injury with sharp‑edged weapon on Haq Nawaz. The two sentences are to run concurrently. These orders were passed on 30th November 1956, by a Magistrate invested with powers under section 30, Criminal P. C. Against his conviction and sentences Ghulam Ahmad has appealed to this Court. The facts which led to the conviction of the accused are that one Mst. Malkan wife of Saida and sister of Ghulam Ahmad accused suspected of illicit connection with Ghulam Hussain Mamma and Ghulam Ahmad Baseen. Ghulam Ali deceased and Haq Nawaz are nephews of Saida. The visits of Ghulam Hussain and Ghulam Ahmad to Mst. Malkan were resented by Ghulam Ali and it is alleged that on the day of occurrence which was Id day, Ghulam Hussain and Ghulam Ahmad paid another visit to Mst. Malkan and when they left her house Ghulam Ali and Haq Nawaz went there and reproached Saida and Malkan for allowing such visits. Mst. Malkan resented this intervention of Ghulam Ali and perhaps abused him. Ghulam Ali stood up and slapped Mst. Malkan. Thereafter Ghulam Ahmad brother of Mst. Malkan picked up a lore which was lying there and stabbed Ghulam Ali in the chest. Hag Nawaz stepped in to separate Ghulam Ali from Ghulam Ahmad and he was also given a lore blow on the back of his left chest. Saida who was also present gave a stick blow to Hag Nawaz. The medical evidence disclosed on the person of Ghulam Ali an incised wound 3/4" x 1/4" on the front of the left chest below left nipple. On the following day Ghulam Ahmad succumbed to this injury. His post‑mortem examination showed that left pleura and stomach were cut and death ensued from the injury to the pleura and the stomach. Haq Nawaz had an incised wound on the back of his chest and a contused wound on the right side of his head. This story was supported by Hag Nawaz who was present at the time of this occurrence and received two injuries one at the hand of the accused Ghulam Ahmad and the other at the hand of Saida. Two other witnesses were produced namely Ahmad Khan and Zahuruddin who belong to the same village. Ahmad Khan stated that on the day of occurrence he was in his shop which is at a distance of about 20 karams from the house of Saida. He heard cries from the womenfolk in that house. He went there and found Ghulam Ahmad armed with lore. In his presence he hit Ghulam Ali in the chest. Zahuruddin another witness stated that he was passing in front of the house of Saida on his way back from tent pegging. He heard a cry from the house of Saida and went inside. There in his presence Ghulam Ahmad accused came armed with a lore and stabbed Ghulam Ali in the chest. He also saw Hag Nawaz being attacked by Ghulam Ahmad and Saida. The accused Ghulam Ahmad pleaded alibi and stated that he was not present at the time of occurrence. He said that in fact it was his younger brother Stier Ahmad who stabbed the deceased. In defence four witnesses were produced including Sher Ahmad and Mst. Malkan. Sher Ahmad stated that he was present on the scene of occurrence and an altercation took place between Hag Nawaz and Mst. Malkan in which Hag Nawaz and Ghulam Ali gave beating to her. He intervened to separate them because Ghulam Ali started pressing the throat of his sister. There was a knife ready to hand which he picked up and inflicted one blow with it on Ghulam Ali and another on Hag Nawaz. Mst Malk an supported Sher \Ahmad's version. This story was also supported by two other witnesses Maqsud Shah and Barkhurdar. In this case it is possible to exclude the presence of Ahmad Khan and Zahuruddin who are not natural witnsses in the sense that they had no reason in the ordinary course of business to be in the house of Saida, but it is not possible to ignore the presence of Hag Nawaz on the scene of occurrence because he has received two injuries in the scuffle. His presence is also admitted by Mst. Malkan and Sher Ahmad. It is in his evidence that we find how Ghulam Ali deceased went to the house of Saida and received the injury from the hand of the accused. There is in my view a ring of truth in the story given by Hag Nawaz about the origin of the trouble how it arose out of Malkan's illicit connection with Ghularn Hussain Mamma and Ghulam Ahmad Baseen. As at the time of this occurrence Mst. 'Malkan was reproached for her misconduct by Ghulam Ali and was also slapped by him it is only natural that her brother Ghulam Ahmad should have taken up her cause and attacked Ghulam Ali and stabbed him in the chest. Since Hag Nawaz was his sympathiser he also received a blow from him. The defence version that the actual stabbing was done by Sher Ahmad is not believable. Ghulam Ahmad's age is about 22 years and Sher Ahmad is only 17 years of and a Student of 7th class. It is not possible that a student of the age of 17 years would be bold enough to attack two persons of Ghulam Ali and Hag Nawaz's ages. Apart from this a hoy of 17 is less liable to be enraged than a young man of

22. The story of the prosecution, therefore, is more in conformity with the natural course of events. The trial Judge came to a correct conclusion with regard to this occurrence. Ghulam Ahmad is no doubt the author of the injuries on Ghulam Ali deceased and Hag Nawaz. As the entire struggle took place without any pre-mediation or planning and as the deceased slapped Mst. Malkan the sister of Ghulam Ahmad accused, the latter is no doubt entitled to the benefit of the 1st Exception to section 300, P. P. C. He was rightly convicted of an offence under section 304, P. P. C. and that conviction is maintained. In this Court an objection has been raised that the offence was triable exclusively by the Court of Session and a Magistrate exercising powers under section 30, Criminal. P.C. was not competent to try the accused and convict him of the offence under section 304; P. P. C. It is true that according to section 28, Criminal P. C. the offences mentioned in the second schedule are triable by the Courts mentioned in column No. 8 thereof. According to that position of the law section 28, Criminal P. C. is to be read with the second schedule and a case under section 3041 P. P. C. is triable by the Court of Session. But section 281 Criminal P. C., as its language would show, is to be read "subject to other provisions of the Code." One of the other provisions of the Code to which it can be subjected lies in section 30, Criminal P. C. That section empowers the Provincial Government to invest a Magistrate of the 1st Class with powers "to try all offences not punishable with death". Since an offence under section 304, P. P. C. is not punishable with death the affect arising out of reading section 28 of the Criminal P. C. in conjunction with section 30, Criminal P.C. is that an offence under section 304, Criminal P. C. becomes triable by a Magistrate 1st class invested with powers under section 30, Criminal P. C. Since section 28, of the Code says that it is to be read "subject to the provisions of this Code," and since section 30, Criminal P. C. is another provision of the Code section 30, Criminal P. C. is to be read as an exception to section 28, Criminal P. C. and also as an exception to the provisions of the second schedule. As according to the language of section 30, Criminal P. C. a Magistrate empowered under that section can try all offences which are not punishable with death, a Magistrate of 1st Class invested with powers by the Provincial Government under that section can try every offence not punishable with death. It is immaterial whether the offence falls under Part I or Part II of section 304, P. P. C., because the maximum punish ment in both the cases is not death but transportation or imprisonment of either description for a term not exceeding ten years. There is support for this view in Punjab Record 3 of 1891 Mir Alam v. Emperor (69 I C 454) and Muhammad Shat v. Crown (P L D 1950 B J 86). It is true that if in a case put before a Magistrate under section 302, P. P. C., the accused wants to bring his conduct within any of the exceptions to section 300, P. P. C., 'in order to claim the benefit of that exception and have the charge mitigated to section 304, P. P. C., he has to prove to the satisfaction of the Court that his conduct is within one of the exceptions mentioned in section 300, P. P. C. In such cases it is more proper to commit the accused to the Court of Session. But if from the evidence adduced before the police it appears that the case made is one under section 304, P. P. C., and the accused is sent to the Court straightway for trial on a charge under section 304, P. P. C , and a Magistrate in whose Court the case has been put is invested with powers under section 30, Criminal P. C., he need not commit the case to the Court of Session if he finds that the accused in his opinion should be convicted of that offence. If the facts before him disclose a case under section 304, P. P. C., the offence triable by him by virtue of the provisions of section 30, Criminal P. C. There is no illegality or even irregularity in the trial of cases under section 304; P. P. C., by a Magistrate of the 1st Class specially empowered under section 30, Criminal P. C. The yard‑stick by which the competency of the Court is to be measured is the punishment of the offence and not the nature of the offence. That Court is competent to deal with the case if the trial terminates in either of the two events happening. If the accused succeeds in claiming the benefit of any exception to section 300, P. P. C., the Court will reduce the offence from 302, P. P. C., to one under section 304, P. P. C., and will convict him of that offence ; if the accused fails in his attempt, the Court will commit him to the Court of Session under section 302, P. P. C. All offences not punishable with death are triable by a Magistrate First Class empowered under section 30, Criminal P. C. If from the evidence adduced before the Magistrate invested with powers under section 30, Criminal P. C., it becomes absolutely clear that the material on record leads to the irresistable conclusion that the conduct of the accused falls within one of the five exceptions to section 300, P. P. C., the Magistrate will be in no error if he frames charge against the accused under section 304, P. P. C., and if once a charge has been framed against the accused under section 304, P. P. C., whether it is under Part I of that section or Part II, the Magistrate becomes legally competent to proceed with the trial and convict the accused of the offence on that charge because the offence which forms the subject‑matter of the charge is one not punishable with death. In this connection my attention was invited to four cases in which a contrary view was held. They are Emperor v. Shamira (A I R 1926 Lah. 575), Emperor v. Manga (A I R 1928 Lah.868) and Salihott v. Emperor (A I R 1933 Lah. 128) and one earlier case reported as 1 P R 1893. In A I R 1926 Lah. p. 575 the appellate Court was of the view that the offence fell under section 302, I. P. C., and for that reason trial by a Magistrate empowered under section 30, Criminal P. C., was illegal. With that proposition there can be no dispute. This case does not fall within the purview of that ruling. In A I R 1928 Lah. p. 868 also the learned Judges were of the view that the conduct of the accused fell within the ambit of section 302, I. P. C. In A I R 1933 Lah. p. 128 a Sessions Judge was of opinion that the accused was in fact guilty of an offence under section 302, I. P. C., and he held the case triable by the Court of Session. In the case reported as 1 P R 1893 two judges out of the three who constituted the Bench held that in fact a charge which may ultimately fall under section 304 (Part I), I. P. C., is included in section 302, I. P. C. and for that reason it is better if the case is committed to the Court of Session which is competent to take cognizance of both the charges i.e., a charge under section 302, P. P. C. and also a charge under section 304, P. P. C. and is not allowed to be tried by a Magis trate empowered under section 30, Criminal P. C. The third judge was of the view that if on evidence a charge can be made; against the accused under section 304, I. P. C. the case is triable by such Magistrate. None of the cases mentioned except 1 P R 1893 is appli cable to this case. The Punjab case can be distinguished on the ground that it dealt with a case falling under Part I of section 304, I. P. C. and not under Part II of that section, though with great respect to the two learned Judges who were the author of the majority judgment. I am of the opinion that the view of the learned Judge in the minority is preferable. In my view the language of section 30, Criminal P. C. is, so clear that it admits of no doubt on the point of jurisdiction. If in a case before a Magistrate empowered under section 30, Criminal P. C. it appears on the evidence adduced that a charge under section 304, P. P. C. has clearly been made against the accused and it is not possible for any Court to convict him of the offence under section 302, P. P. C., then as the offence under section 304, P. P. C., is not one punishable with death the case becomes triable by that Magistrate and ceases to be one triable exclusively by the Court of Session. A charge under section 304, P. P. C. in that case can be framed against him by that Magistrate and since that offence is not punishable with death, he can proceed to trial and judgment. It is only when the Magistrate on the evidence before him is unable to come to the decision that charge under section

304. P. P. C. is sustainable that he is required to commit the accused to the Court of Session. For these reasons the Magistrate who dealt with this case was, by virtue of the fact that he was invested with powers under section 30, Criminal P. C. competent in law to try the accused and convict him of an offence under section 304, P. P. C. and there has in law been neither an irregularity nor an illegality. The sentence imposed is not excessive and this appeal is dismissed. A. H. Appeal dismissed.