1988 PLP 1856 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the order of a learned Division Bench of the Peshawar High Court, Abbottabad Bench, dated 3‑11‑1987.

2. Sadro and Said Khan petitioners alongwith their acquitted co‑accused Ghulam Nabi, residents of Tipper cum sum Shinkiari, Tehsil Batagram, District Mansehra, were charged under sections 302/326/ 323/34, P.P.C. for committing the murder of Muhammad Yusuf and inflicting injuries on Muhammad Ayub and Ghulam Haider P.Ws. The occurrence is reported to have taken place on 31st October, 1978 at 7‑00 a.m. in the house of the petitioners. After the completion of the investigation the petitioners and Ghulam Nabi, the acquitted accused, were put to trial and all were acquitted by the learned Sessions Judge, Mansehra, vide judgment dated 15‑11‑1979. Their acquittal was., however, challenged by the State through appeal under section 417, Cr.P.C. and the learned Judges of the High Court after re‑appraisal of the evidence set aside the order of acquittal in respect of Sadro and Said Khan. The former has been convicted under section 304, Part I, P.P.C. and sentenced to ten year' R.I. and a fine of Rs.3,000 or in default to two years further R.I. He has also been ordered to pay a compensation of Rs.5,000 to the heirs of Muhammad Yusuf deceased. Said Khan has been convicted under section 326, P.P.C. and sentenced to five years' R.I. and a fine of Rs.2,000 or in default to one year's further R.I. He has been ordered to pay compensation of Rs.3,000 to Muhammad Ayub P.W. The benefit of section 382‑B, Cr.P.C. has been allowed to both the petitioners. The acquittal of Ghulam Nabi was, however, maintained.

3. We have heard the learned counsel for the petitioner. As explained by him, the delay in filing the petition is hereby condoned. As for the merits, we do not think there is any case for our, interference in that the prosecution has been able to make out a case against the petitioners. The examination of the evidence on the record, however, shows that the learned Judges have erred in holding the petitioners as aggressors. It apparently was a case of sudden fight in which Muhammad Yusuf lost his life, Muhammad Ayub and Ghulam Haider from the complainant side and Sadro petitioner received injuries. The case against the petitioners, Sadro obviously falls under Exception IV to section 300, P.P.C. Their 'convictions and sentences, in the circumstances of the case, are however, proper and are maintained.

4. The petition is dismissed. M.I./S‑182/5 Petition dismissed.