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Criminal Appeal No. 79 of 1979, decided on 20th November, 1982.

(On appeal from the judgment and order of the Lahore High Court dated 30-7‑1978 in Cr. A. 297 of 1976).

---S. 300, Exception IV‑Culpable homicide‑Sudden fight‑Facts glanced from record showing case to be one of sudden fight where some of accused also sustained injuries‑Sentence of death, held, not called for‑Appeal accepted to extent of alteration of death sentence into life imprisonment and award of benefit of period of detention in jail‑Criminal Procedure Code (V of 1898), S. 382‑B‑Constitution of Pakistan (1973), Art. 185(3).

Asghar Ali, Advocate Supreme Court of Pakistan and Sh. Masood Akhtar, Advocate‑on‑Record for Appellant.

S. M. Zubair, Assistant Advocate‑General (Punjab) for the State.

Date of hearing : 20h October, 1982.

MIAN BURHANUDDIN KHAN,

J.‑Nihala, appellant, along-with six others, was tried by the learned Additional Sessions Judge (111), Sahiwal under Ss. 302/ 349, 149, 307/149, 148 and 447, P. P. C., for the murder of Nur Muhammad, and attempt to murder Nazir and Mokha, P. W. on 28th August, 1974, at about 5 p. m.

2. Nihala and Sultan were convicted and sentenced under S. 302/34. Nihala was awarded death penalty and Sultan was given life imprisonment. Both the accused were fined Rs. 500 each. Fine, if recovered, was ordered to be paid to the heirs of Nur Muhammad deceased, in default, to undergo, two months' simple imprisonment.

3. The other co‑accused were convicted under section 307/34, for causing injuries to Mokha P. W. and were sentenced to 5 years R. 1. each. Sultan and Nihala were also convicted under S. 323/34, P. P. C., for causing simple injuries to Nazir P. W. and were sentenced to six months' R. 1. Sher Muhammad, one of the accused, was convicted for causing injury to Nazir and was sentenced to one year's R. 1. under S. 324, P. P. C. All the accused were also convicted under S. 447, P. P. C. and were sentenced to 3 months' R. I. each.

4. The convicts filed

an appeal before the Lahore High Court but the same was dismissed vide judgment dated 30‑7‑1978. The accused appellants then filed petition for leave but leave was granted by this Court on 26‑6‑1979 to consider the question of sentence of Nihala alone on the ground that there is evidence in support of the submission that the occurrence was pre ceded by a sudden quarrel and that the death of Nur Muhammad deceased was not the result of a premeditated attack by Nihala.

5. The prosecution story is that on 28‑8‑1974 at 5 p m. Nazir Ahmad P. W. 10 was busy in his work on agricultural land in Chak No. 71/4‑8 in the jurisdiction of Police Station Nur Shah, District Sahiwal where he had installed a tube‑well and used to sell the water @ Rs. 14 per pehr. At the time of occurrence the water was being supplied to Baqir P. W. 13 when, it is alleged that Nihala, appellant, armed with a hatchet, Sultan and other accused, armed with lathis, arrived there and asked the Tube‑well Operator Sultan to stop the tube‑well as they would not permit anyone to sell or purchase water at more than Rs. 12 per pehr. Nihala himself then stepped forward and switched off the motor of the tube‑well. Shaukat went and informed Nazir P. W. 10 and Mokha, P. W. 11 and Nur Muhammad deceased who were cutting fodder in their field at some distance. They came to the tube‑well and asked the appellant as to why he had stopped the motor of the tube‑well. The appellant and his co‑accused replied that the complainant would not be allowed to sell the water higher than at Rs. 12 per pehr. This resulted in verbal altercation and exchange of abuses between the parties and a fight started in which Sher Muhammad gave a hatchet blow to Nazir Ahmad, P. W. 1O; Nihala and Sultan gave lathi blows to Nur Muhammad deceased and the other accused gave lathi blows to Mokha P. W. 11. Thereafter they left the spot. The injured were taken to the Civil Hospital where they were medically examined. On arrival of the police, Nazir Abmad lodged the F. I. R. Exh. P. A. Nut Muhammad father of Nazir Ahmad died the following morning. The ocular evidence is furnished by Nazir, P. W. 10, Mokha P. W. 11 and Amanat P. W. 12.

6. Learned counsel for the appellant contended that as injuries were sustained by some of the accused too it was a case of self defence and the benefit of the same should have been extended to the appellant Nihala ; that the complainant side has suppressed the injuries caused to the accused side by not mentioning the same in their statement in the Court or in the F. I. R. ; that it was a case of sudden fight and the sentence awarded to Nihala, appel lant, cannot be supported by law.

7. We have gone through the evidence and find substantial support to the contention of the learned counsel. It is admitted by Nazir that he was informed by Shaukat, P. W. that the accused had come to the tube‑well and stopped its operation ; that he, alongwith his father Nur Muhammad deceased and Mokha went to the tube‑well where they saw Sher Muhammad co‑accused of the appellant, armed with hatchat; and the rest were armed with fangs. He asked the accused as to why he had stopped the tube‑well on which they replied that they would not allow them to sell water at Rs. 14 per pehr and also threatened them. Nur Muhammad deceased switched on the tube‑well again at which Nihala gave him a dang blow, all the accused then raised a lalkara and started giving blows to the complainant party. Simila is the statement of Mokha, P. W. Thus it is a case where the extreme penalty of death was not called for, rather the facts gleaned from the record show that it was a sudden fight in which some of the accused also sustained injuries. We, therefore, accept the appeal to the extent that we alter the death sentence of Nihala into life imprisonment and a fine of Rs. 10,000 (rupees ten thousand), or in default, to suffer further five years' R. I. We also impose a fine of Rs. 1,000 as compensation, in default, further six months R. I. In case of recovery, the total amount of fine, shall be paid to the heirs or the deceased. Benefit under section 382‑B, Cr. P. C. is also allowed to Nihala, appellant.

Sentence reduced.

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