P L D 1993 Supreme Court 35 (PLP)

MUHAMMAD AFZAL ZULLAH,‑‑CJ.‑‑In this appeal in a case of murder Allah Dawaya accused/convict was granted leave to appeal for the examination of the question; whether in view of the findings in the impugned judgment to the effect that it was a case of sudden right and not one of free right, whether the conviction under section 304, Part I, P.P.C. and consequential reduction in sentence would not be justified. Learned counsel for the appellant has brought to our notice para.23 of the judgment of the High Court which reads as follows:‑‑ "There is no denial of the fact that both the parties were political rivals and were not only supporting their respective candidates on the day of occurrence, but had also contested elections against each other ir. 1979, in which Mubarik appellant had defeated Khuda Bakhsh, who was contesting the election being held on the day of occurrence also, but the soothing fact is, that there is no evidence that the parties had ever indulged in causing or attempting to cause physical harm to each other. This in fact was the first occurrence, which had taken placr between the parties. It, therefore, cannot be assumed that they were so inimical to each other that they would have indulged in false involvement of innocent persons, in a case of capital sentences." He also relied on the analysis made by the High Court in paras.28 and 29 of the judgment; namely, that "Learned trial Judge had come to the conclusion that the occurrence appeared to be a free right between the two rival groups. We have considered that aspect of the case. We are of the view that the observation of learned trial Judge in that regard, is not the correct depiction of the occurrence. In a free right, the necessary element is preparation of both the parties with their best, and with a background where each of the party is on a look out to avail the opportunity to damage or destroy the opponent. This was not the position amongst the two parties in this case. As noted in the earlier part of the judgment, the parties although had been opposing each other politically but had never indulged in physical fights and quarrels. In the circumstances, our view is that it was a case of sudden right. We have not believed the prosecution version that the occurrence had resulted because of the annoyance of the appellant party on account of the change of polling station, got effected by the complainant party, for the reasons noted above. "It seems that something untoward happened suddenly amongst the parties. It is commonly known that a quarrel can arise between the supporters of the contesting candidates for anything, i.e. efforts by some one to cast a bogus vote or the aggression by the other to stop a genuine voter from casting his vote. In a sudden right, the party which happens to be well prepared, or possesses more strength, gets the upper hand. I , n such like cases, often the actors are burdened with liability of their own acts and actions. Although, learned trial Judge held the occurrence to be a free fight, yet ultimately he chose to burden each one of the persons for his own liability. That would be the case in a case of sudden fight as well. We have no disagreement with the learned trial Judge that the prosecution had proved that the fatal shot was fired by Allah Diwaya and Jalali appellant fired at Muhammad Ramzan P.W. causing one injury and Miru and Mubarik had caused simple injuries to the deceased, Abdul Ghafoor P.W. Nabi Bakhsh P.W. and Haji Mithu P.W. This brings us to the argument advanced by learned counsel for the appellants that Allah Diwaya cannot be burdened with the liability of having committed culpable homicide amounting to murder and at the best he can be convicted for the offence under section 304, P.P.C. We have considered this aspect of the case, also". Despite the aforenoticed findings of the High Court the legal benefit was denied to the appellant on the ground that the act of the appellant in firing the shot at the deceased was intentional. With due respect to the learned Judges of the High Court, the application of Exception 4 cannot be denied to an accused person simply C because his act was intentional. in case of self‑defence, grave and sudden provocation under the other Exceptions to section 300, P.P.C., the act notwithstanding being intentional, benefit to the accused is given on account of the conditions relevant to the provocation and self‑defence, which are mentioned in the concerned Exceptions. Similarly, the benefit under Exception 4 to section 300, P.P.C. is not granted on account of the reason that the act is not intentional; rather, it is granted on account of the conditions and other factors stated in the Exception itself; namely, that even intentional act was, not pre‑meditated. The intention might have developed all of a sudden during the quarrel and the ensuing sudden fight. The other conditions laid down are also additional factors. For example, there should not be an undue advantage and/or the act should not be cruel one. If the law would have intended that the act should not be intentional it would have been so stated in these provisions. Lastly, section 304, Part 1, P.P.C., which is one of the relevant punishing provisions in these cases itself provides, that certain punishment would be imposed if the act amongst other is with the "intention of causing death". Lesser punishment is provided when the said intention is missing and the case is one only of knowledge of the death being a likely result rather than there being intention to cause death ‑‑ that is why section 304, P.P.C. is divided into two parts; namely, I and,II. " We have scrutinised the evidence. Both the parties had injuries which, itsecins, were caused also by using And pelting stones as, missiles. Learned counsel for the State has not been able to meet the arguments of the learned counsel for the appellant; on the aforenoted lines. In the light of the foregoing discussion this appeal is partly allowed. The conviction under section 302, P.P.C. is set aside; instead the appellant is convicted under section 304, Part 1, P.P.C. He is awarded 10 years' R.I. and a fine of Rs.75,

000. In default of payment of fine the appellant shall suffer R.I. E for 2‑1/2 years. Fine when paid shall be paid in its entirety as compensation to the heirs of the deceased. The appellant shall be allowed benefit of section 382‑B, Cr.P.C. provided he pays the fine and avoids serving sentence lieu of the fine. M.B.A./A‑969/S Appeal partly allowed.