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Criminal Petition for Special Leave to Appeal No. 73 of 1970, decided on 20th April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 5th March 1970, in Criminal Revision No. 827 of 1969).

-----S. 304/34, Part II‑Sudden fight and scuffle between parties resulting in exchange of lathi blows, stone throws, injuries on both sides, and death of one on com plainant's side‑High Court, held, perfectly justified in invoking S. 304, Part II, to facts of case‑Sentence being not grossly inadequate, Supreme Court declined to interfere although on facts accused might have been convicted under S. 304, Part I.

Sh. Aftab Hussain, Senior Advocate Supreme Court (Muhammad Saeed, Advocate with him), instructed by M. Z. Khalil, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 20th April 1970.

‑Respondents Jamil Ahmad and Muhammad Rafi were convicted by the learned Sessions Judge, Jhelum, by judgment dated the 28th April 1969, under section 302/34, P. P. C. for the murder of Muhammad Yasin and under section 323/34, P. P. C. for causing injuries to the petitioner and Muhammad Idris P. W. 8. They were sentenced to transportation for life and were further sentenced to undergo one year's rigorous imprisonment each on the other count. On appeal, the High Court, by order dated the 5th March 1970, upheld the conviction under section 323/34, P. P. C. for causing injuries to the petitioner and Muhammad Idris but acquitted the respondents of the charge. under section 302/34, P. P. C. and altered the sentence to section 304/34, Part II, P. P. C. and reduced their sentence to three years' rigorous imprisonment. The petitioner seeks permission to file an appeal against the said judgment.

The prosecution case is that on the 10th April 1968, at peshiwela, Muhammad Yasin deceased, along with his son P. W. 8 Muhammad Idris, I1: W. 9 Muhammad Siddiq and the petitioner, who was the sister's son of the deceased came out of Masjid Muhajrin after saying their prayer there. Muhammad Yasin was going a bit forward from others. They reached the Chowk Shah ra‑e‑am of the village and the respondents were found there. Jamil Ahmad was armed with an iron shod lathi and he opened the attack on Muhammad Yasin with it and caused him an injury on the head. Muhammad Rafi respondent threw stone which hit Muhammad Yasin on his head. Muhammad Yasin deceased, on receiv ing the" two blows; dropped down on the ground unconscious. Jamil Ahmad respondent tried to give second blow to Muhammad Yasin but it hit Khalil Ahmad petitioner on his right hand as he intervened to save the deceased. Muhammad Idris P. W. 8 stepped forward to save his father and hurled a stone which hit Jamil Ahmad on his forehead. Muhammad Rafi threw another stone which caused injury to Muhammad Idris on his collar bone. Muhammad Rafi respondent came out of vacant site and he was given a push by the petitioner as a result of which he fell on the wall and the stones in the corner of the vacant site. He thus received injuries on the nose and some of his ribs were also broken. Alarm was raised which attracted several persons on the spot. The respondents ran away. Muhammad Yasin was put on a cot and taken to Jalalpur dispensary. After securing a medical certificate, the.petitioner lodged the First Information Report at 6‑00 p.m. on the same day at Police Station, Jalalpur, which is at a distance of five miles from the place of occurrence. No counter report of this incident was given but Jamil Ahmad and. Muhammad Rafi respondents were examined by Dr. Nazir Ahmad. Muhammad Yasin died, at midnight at 12‑05 a.m. on the 11th. April 1969, and the, respondents were challaned under section 302/ 4, P. P. C. and under section 323/34, P. P. C.

On the appraisal of the evidence, the High Court has come to the conclusion that they were not prepared to believe that the two respondents were sitting id ambush in front of their own shop armed with lathis and stones waiting for the complainant party to pass so that they may be attacked. According to the High Court, the incident had been a sudden affair probably on account of certain remarks which the petitioner may have made about the eating of food by the son of the deceased at the house of Abdul Ghafoor which ceremony was arranged by the respon dents. Some altercation seems to have been the cause which took place in the bazar. In the melee, the parties have received injuries. Their passions having gone high on account of the sudden quarrel. The High Court finding is that in view of the injuries on the person of the respondents it cannot be said that they took undue advantage or acted in a cruel and unusual manner in causing injuries to the deceased, and his companions. Exception 4 to section 300, P. P. C. would, therefore, attract to the facts of the case and the High Court altered the conviction of the respondents from section 302, P. P. C. to section 304, Part II, P. P. C. and reduced their sentence to three years' rigorous imprisonment.

In support of the petition, Mr. Aftab Hussain, learned counsel for the petitioner, was unable to satisfy that this was not a "sudden fight or that there was no scuffle between the parties and there has been an exchange of lathis blows and stones throw which resulted in the injuries on both sides. It is, therefore, quite clear that the High Court was perfectly justified in invoking section 304, Part II, P. P. C. to the facts of the present case. It may be that on the facts of the present case, the conviction of the response dents should have been made under section 304, Part I, P. P. C. but that is no ground to interfere in this petition. The sentence .awarded to the respondents cannot be said to be grossly inadequate. We, therefore, do not consider this as a fit case to interfere. The petition is dismissed.

Petition dismissed.

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