1988 PLP 1022 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave against the judgment of a learned Division Bench of the Lahore High Court, dated 29‑5‑1984.

2. The occurrence took place on 30‑3‑1981 at 8‑30 a.m. in Chak No. 126/15‑L, Police Station Mian Channu, District Multan, the report of which was made the next day at 5‑45 in the evening by Nazir Ahmad (P.W.8). In the incident Bashir Ahmad lost his life, Liaqat (P. W.9) from the complainant side received injuries and from the accused side Muhammad Siddiq appellant and his two brothers Muhammad Tufail and Muhammad Khalid were also injured. The learned trial Court after the conclusion of the trial convicted Muhammad Siddiq and his two brothers, namely, Muhammad Tufail and Muhammad Khalid, under section 302/34, P.P.C. and vide its judgment, dated 9‑12‑1982 sentenced Muhammad Siddiq to death and to a fine of Rs.10,000 or in default to three years' R.I. because the fatal injury to Bashir Ahmad deceased was attributed to him. Muhammad Khalid and Muhammad Tufail were, however, sentenced to imprisonment for life each with a fine of Rs.10,000 each or in default to three years' R.I. Muhammad Tufail was also convicted under section 323, P . P . C . and sentenced to one year's R.I. and a fine of Rs.1,000 or in default to three months' R.I. Half of the fine on realization was ordered to be paid to the heirs of Bashir Ahmad as compensation under section 544‑A, Cr.P. C. On appeal to the High Court by the three accused, learned judges vide the impugned judgment acquitted Muhammad Tufail and Muhammad Khalid of the charge under section 302/34, P.P.C. They, however, maintained the conviction of Muhammad Siddiq appellant under section 302, P.P.C. but reduced his sentence to imprisonment for life with a fine of Rs.10,000 or in default to three years' R.I. The fine on realization was ordered to be paid to the heirs of the deceased and in addition he was also ordered to pay a sum of Rs.5.000 as compensation under section 544‑A, Cr.P.C, to them. The conviction and sentence of Muhammad Tufail under section 323, P . P. C . was maintained. The fine on recovery was ordered to be paid to Liaqat Ali P.W. Both Muhammad Siddiq appellant and Muhammad Tufail were given the benefit of section 382‑B, Cr.P. C.

3. Leave was granted in this case to consider whether it was not a case where benefit of Exception IV to section 300, P . P . C . could be extended to the appellant on the facts brought on the record. We A have heard the learned counsel for the parties and gone through the record of the case. In support of the leave granting order, the learned counsel for the appellant vehemently contended that though the learned Judges in the High Court came to the conclusion that the occurrence had taken place all of a sudden and without any premeditation, yet they convicted the appellant under section 302, P.P.C. As the record stands, he submitted, the learned appellate Court has obviously misapplied the law to the facts of the case and hence miscarriage of justice.

4. We have considered the arguments of the learned counsel for the appellant. In the occurrence Bashir Ahmad lost his life and Liaqat Ali P. W. received injuries from the complainant side, whereas Muhammad Siddiq appellant and the two co‑accused also received number of injuries on various parts of their bodies. There is no denying the fact that the injuries on the person of the appellant and the co‑accused were inflicted in the same occurrence. Here the grievance of the learned counsel for the appellant before us was that no sooner the learned Judges came to the conclusion that the occurrence had taken place all of a sudden and there was no premeditation on the part of the appellant he could not have been convicted under section 302, B P.P.C . as his case was fully covered by Exception I V to section 300, P.P.C. We think there is substance in the above submission. In all probability there ensued sudden quarrel between the parties which led to a fight in which both the parties received injuries. We, there fore, hold that the provision of section 304, Part I,P.P C. is fully attracted to the case in hand, the conviction of the appellant is, therefore, converted from section 302, P.P. C. to section 304, Part I, P.P.C. and he is sentenced to ten years' R.I. The sentence of fine is maintained. The whole of the amount of fine of Rs.10,000 and that of compensation of Rs.5,000 as ordered by the High Court be paid to the heirs of Bashir Ahmad deceased. Benefit of section 382‑B, Cr.P. C t is upheld. The appeal is partly allowed in the terms above. M.Y.H./M‑415/S Appeal partly allowed.