P L D 1989 Supreme Court 247 (PLP)

‑‑‑Ss. 304, Part I &‑ 300, Exception 4‑‑Sentence‑‑Sentence of imprisonment was reduced by two years but the sentence of fine was doubled by High Court‑‑Held, this in reality, strictly speaking, would not be a reduction of sentence but can be treated as balancing thereof by the Appellate Court. Zafar Pasha Chaudhari, Advocate instructed by S. Masood Akhtar, A advocate‑on‑ Record (absent) for Petitioner. Nemo for Respondents. Date of hearing: 5th March, 1989. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the complainant's side, against the partial acceptance by the High Court, of respondents' Criminal Appeal. While maintaining the conviction of Muhammad Aslam and Mushtaq respondents Nos. 1 and 8, against whom only, this petition has been pressed, under section 304, Part 1, P.P.C. their sentence of imprisonment has been reduced by two years, each but the sentence of fine has been doubled. The reasons which prevailed with the High Court for reducing the sentence are as follows:‑‑ "The only question that now remains is that relating to sentence. On behalf of the appellants, it is urged that Muhammad Aslam, appellant had all along been trying through lawful means to secure the possession of the shop from Ashiq Hussain (won over P.W.) who tried to frustrate the same through devious means, both legal and otherwise. It is further urged that the appellants did not launch a concerted attack to forcibly take possession of the shop, as has been suggested on the part of the complainant. In fact, the delivery of possession was given to Muhammad Aslam, appellant ,by Abdul Ghani Bailiff P.W. 18 on 18‑2‑1982, almost nineteen months after the occurrence. The occurrence arose over a sudden quarrel and a fight. Muhammad Aslam and Mushtaq, appellants, are alleged to have given one Chhuri blow each on the Wakhi of Siddiq, deceased. No other injury was repeated by them. They show that they had no intention to kill Muhammad Siddiq, deceased. 1, would, therefore, reduce the sentences of Muhammad Aslam and Mushtaq, appellants, under section 304‑1, P.P.C. Learned counsel has contended that the nature of the injuries clearly indicated that there was an intention to kill, therefore, according to him there was no justification for reducing the sentence. In a case which falls under exception (iv) to section 300, P.P.C., he further argued, the conviction recorded under section 304 Part I itself, would mean and involve a clear intention to kill. It is only the exception which takes the case out of the ambit of section 302, P.P.C. Be that as it may, even if this element is excluded from consideration, the remaining circumstances indicated in the High court judgment are not such so as to hold that they were irrelevant in matter of sentence. Moreover, while the sentence of imprisonment A was reduced by only two years that of fine was doubled. This in reality, strictly speaking, would not be a reduction of sentence. It can be treated as balancing thereof by the appellate Court. Looked at from whatever angle it is not a fit case for grant of leave to appeal, the same accordingly is refused. M.B.A./A‑440/S Leave Refused