1988 PLP 915 (SCMR)

Raja Abdul Ghafoor, Advocate Supreme Court instructed by S. Abid Nawaz, Advocate‑on‑Record (absent) for the State. Date of hearing: 26th March, 1988. MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against judgment dated 3‑2‑1981 of the Lahore High Court; whereby appellants conviction under sections 302 and 307 read with section 34, P.P.C. was upheld, but their sentences of death were reduced to imprisonment for life and thus their appeal was partly allowed.

2. The occurrence in this case took place on 9‑9‑1978 at rotivela in the field of Bostan, one of the two deceased. It is alleged that Bostan deceased and his son Abdur Rehman, injured P.W. were ploughing their land, which had long since been partitioned between Bostan deceased and his cousin‑‑Fazal Dad accused, who was acquitted by the learned trial Court. Both the appellants are sons of said Fazal Dad. There was a common Bunna between the fields of the two parties. Fazal Dad and the two appellants were also ploughing their field. It is further stated that the accused side demolished the common Bunna; where upon Bostan deceased remonstrated with them, as a result of which a mutual altercation took place. On this Safdar, the second deceased, who was grazing his cattle nearby, rushed to the spot. All the three accused launched an attack first on Bostan and then on Safdar, who wanted to intervene, causing them serious injuries‑‑the two appellants with Chhuris and Fazal Dad with hatchet. Abdur Rehman P.W., who tried to save the two deceased, was also injured by the three accused.

3. As against the aforenoted prosecution case, the defence version was that, while the appellants were ploughing the land and their father was also present there, Bostan and Safdar deceased as also Abdur Rehman P.W. were ploughing the land of Bostan. In this process the complainant side demolished the common Bunna. Fazal Dad objected; whereupon Bdstan abused him. Fazal Dad returned the abuse, whereupon both the deceased and Abdur Rehman started giving beating to Fazal Dad with Lathis. The appellants intervened but they were also injured. On this Muhammad Azam appellant took out a small knife from his pocket and inflicted injuries to both the deceased and Abdur Rehman P. W. According to them neither Fazal Dad, the acquitted accused, nor Jahan Dad, appellant, carried any weapon.

4. The learned trial Court rejected the defence version and relying on the two eye‑witnesses, namely, Abdur Rehman and Sher Zaman, convicted the appellants under sections 302 and 307 read with section 34, P.P.C., but acquitted Fazal Dad on extension of benefit of doubt. The appellants were awarded sentence of death each as also other sentences. On appeal, a Division Bench of the High Court, treating as a case of sudden fight upon a sudden quarrel involving mutual abuses, reduced the sentence of death to life imprisonment under section 302/34. The benefit of Exception 4 to section 300, P.P.C. was denied to the appellants on the finding that they had taken undue advantage, h41also acted in a cruel and unusual manner. Therefore, the offence could not be altered to one under section 304, Part I, P.P.C.

5. Leave to appeal was granted to examine in the context of the application of Exception 4, the following observation of the High Court:‑-- "However, considering that the occurrence arose over a sudden quarrel in a sudden fight and there was no premeditation on the part of the appellants to murder any of the deceased, the appellants are entitled to the lesser penalty."

6. In the forenoted context it was also observed in the leave granting order that the question as to which party was the aggressor, might also need examination.

7. The learned counsel for the appellants did not press the plea of self‑defence as an independent ground in support of this appeal. He, however, heavily relied upon Exception 4 to section 300, P.P.C. so as to seek the setting aside of the conviction under section 302/34, P.P.C. and alteration of the conviction to section 304, Part I, P.P.C. with consequential further reduction in the sentence. He has again relied on the aforequoted observation of the High Court, wherein it was held that the occurrence arose all of a sudden as a result of a sudden quarrel and a sudden fight and further that there was no premeditation on the part of the appellants.

8. The observation relied upon by the learns counsel was made by the High Court on the plea of the appellants for reduction of sentence from death to life imprisonment. At the same time the other plea that the offence fell under section 304, Part I, P.P.C. by application of Exception 4 to section 300 had also been examined in the impugned judgment. The learned Judges took note of the injuries, the weapons used and the conduct of both the pal‑ties as also the final results produced thereby; and, reached the conclusion that the appellants had acted in a cruel and unusual manner and further that they took undue advantage of the victims of their attack.

9. It is irrefutable proposition that unless all the conditions are satisfied, Exception 4 to section 300, P . P. C . would not be attracted; notwithstanding the fact, that the act of the accused might not be premeditated and the same might have been due to a sudden fight upon a sudden quarrel. In such a case unless all the conditions mentioned in Exception 4 are satisfied, the conviction cannot be altered from section 302 to section 304, Part I, P.P.C.

10. However, in the circumstances of this case, it was on good principle that other conditions having been satisfied, the High Court reduced the sentence only. It rightly refused to alter the offence, because as observed, one of the legal requirements remained unsatisfied. The learned counsel has rightly not pressed the argument advanced at the stage of leave to appeal; as to who was the aggressor; because under explanation to Exception 4 in the context of cases considered thereunder, it is immaterial which party offers provocation and/or commits the first assault.

11. With regard to the finding of fact that the appellants had acted cruelly and in unusual manner and further that they took undue advantage, the learned counsel remained unable to assail the reasoning of the High Court. In the circumstances of the case, therefore, we do not find any justification for the setting aside of the said finding. That being so, the appellants have rightly been convicted and sentenced, amongst others, under section 302, P.P.C.

12. There is no force in this appeal and the same is dismissed. M.I. /J‑22/8 Appeal dismissed.