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Criminal Appeal No. ( ) of 1983 in Criminal Petition for Special Leave to Appeal No. 346 of 1981, decided on 5th November, 1983.

------Ss. 302/34 & 304(1)/34 read with S. 300, Exception IV‑Murder Evidence‑Sentence‑No previous hostility between parties and no other motive for incident excepting fight which suddenly flared up over issue of warabandi‑Record not showing that accused acted in an unusual and cruel manner‑Held, case of accused covered by Exception IV of S. 300‑Conviction altered from S. 302 to S. 304(1)/34‑Parties, however, belonging to same village arriving at compromise and accused paying a large amount of money to widow and children of deceased and also deciding to live amicably in future‑Held, such circumstances should be taken into account as mitigating circumstances for reduction in sentences of accused‑Sentences of imprisonment reduced to period already spent in jail‑Criminal Procedure Code (V of 1898), S. 382‑B.‑[Sentence].

Haji Muhammad Anwar Buttar, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.

M. A. Qureshi, Advocate‑on‑Record for the Complainant.

Sh. Ijaz Ali, Advocate Supreme Court for the State.

Date of hearing : 5th November, 1983.

Since we have heard the learned counsel for the parties as well as the learned State counsel, we convert this petition into appeal and proceed to dispose it of as such.

2. Inayatullah and Muhammad Shafi were tried alongwith two others for the murder of Nasaruddin.

3 The occurrence in this case took place at 7‑41 a. m. on 22‑6‑1978 in the area of Chak No. 295/TDA, Police Station Leiah, District Muzaffargarh. The F. I. R. was lodged by Abdul Sattar (P. W. 8) son of the deceased, which was recorded by Muzaffar Rashid, S. I. (P. W. 12).

4. The prosecution story as given by Abdul Sattar (P. W. 8) in the F. I. R. is, briefly, that he alongwith his father Nasaruddin went to see the Nakka of the Khal on the fateful day, in order to irrigate their land as they had to take their turn of water from the accused party i.e. the two appellants and their co‑accused. The latter, however, did not permit them to take the turn of water saying that their (accused party's)‑turn had not yet finished. The two parties quarrelled, over this issue and there was an exchange of abuses between them. The situation further deteriorated and the accused are alleged to have given Vahola and Kassi blows to Nasaruddin (deceased) as well as to his son Abdul Sattar (P. W. 8). It may be mentioned that Inayatullah and Yasin appellants also suffered injuries during the incident but these were suppressed by the complainant. Nasaruddin (deceased) and his son Abdul Sattar (P. W. 8) where taken to the Health Centre in an injured condition where both of them were medically examined. All the injuries caused to Nasaruddin (deceased) were caused by blunt weapons whereas one of the injuries caused to Abdul Sattar, P. W. was by a sharp‑edged weapon and the remaining injuries were caused by blunt weapons and injury No. 6 was declared to be grievous. Nasaruddin died as a result of the injuries received by him at about 12 noon on the same day.

After completion of the investigation the four accused were sent up for trial before the learned Sessions Judge, Muzaffargarh. In support of its case the prosecution produced three eye‑witnesses, namely, Abdul Sattar, P. W. 8 (son of the deceased), Mst. Zainab Bibi, P. W. 9 (Widow of the deceased) and Khushi Muhammad, P. W. 10 (brother of the deceased). It also relied on the recovery of incriminating weapons found from the accused. The accused denied their guilt and pleaded their innocence. The position took by them, through Muhammad Yasin co‑accused, is as follows :‑

"I alone was watering my field that Nasaruddin and Abdul Sattar had arrived at 7 a.m. and had cut the water for their field. I exhorted them that as till that time their warri had not arrived they should not have drawn the water. Nasaruddin and Sattar said that the would forcibly draw the water Nasaruddin and Sattar abused me and Nasaruddin gave a Kassi blow from its wrong side at my head. Thereafter Abdul Sattar gave me a Kulhari blow from its wrong side at my left arm. The blood came out from my injuries and when I fell down my sister raised hue and cry upon which my father Inayat and Bashir arrived. Inayat proceeded ahead upon which Nasaruddin gave a Kassi blow from its wrong side at the head of my father Inayat. Bashir made and attempt to rescue my fatter and as such gave a Vahola blow to Nasaruddin. Abdul Sattar went ahead towards my father Inayat who injured each other."

6. Believing the prosecution evidence the learned trial Court convicted and sentenced the accused as follows :‑

(1) Inayatullah ... Life imprisonment and fine of Rs. 5,000

in default of payment further R, 1,

for 6 months under section 302/34, . P. P. C.

(2) Muhammad Shafi Life imprisonment and a fine of Rs. 5,000

or. in default of payment of fine further

R. I. for 6 months under section 302/300,

P. P. C.

(3) Yasin ... Two years' R. I. under section 325,

P. P. C.

(4) Muhammad Jamil. One year under section 324, P. P. C.

7. On appeal the High Court dismissed the appeal of Inayatullah and Muhammad Shafi. It altered the conviction of Yasin from section 325, P. P. C., to one under section 323, P. P. C. and reduced his sentence to a fine of Rs. 1,000 or in default of payment of fine, R. 1. for one year, while it reduced the sentence of Muhammad Jamil to a fine of Rs. 500 only.

8. Feeling aggrieved the appellants have approached that the prosecution has not disclosed their own role in the occurrence. He brought it to our notice that Inayatullah appellant suffered as many as 5 injuries during the incident by the first informant had suppressed this altogether. He submitted that this was, in fact, a case of sudden fight during which the two parties confronted each other because of a quarrel on the issue of Warabandi. During the fight both the parties used kassis and other instruments which they were carrying at that time for watering the fields.

9. We are of the view that this contention is supported by the evidence on the record. It is admitted that there was no previous hostility whatso ever between the parties and that there was no other motive for the incident excepting the fight which suddenly flared up over the issue of Warabandi. It does not appear from the record that the appellants acted in an unusual or cruel manner. The case of the appellants is, therefore, covered by Excep tion‑IV of section 300, P. P. C. As such we alter the conviction of the appellants from 302, P. P. C. to that under section 304‑1/34, P. P. C. As for the sentences, it may be mentioned, that the parties have arrived at a compro mise. A compromise deed duly signed by both sides has been placed on the file of this Court. The accused party has already paid a sum of Rs. 80,000 to the widow and the children of the deceased, which is acknowledged by the counsel before this Court. They are also present in person in Court and have acknowledged the receipt of the above‑said amount before us.

Considering that the parties belong to the same village and have decide to live amicably from now onward we feel that this circumstance should b taken into account as a mitigating circumstance for reduction in the sentence of the appellants. We, therefore, accept the appeal partly alter the conviction of the appellants to one under section. 304‑1/34, P. P. C. and reduce the sentences accordingly. They, it is stated, have already served more than five years' imprisonment (if allowed the benefit under section 382‑B, Cr. P. C). This would meet ends of justice. Thus, the sentence is reduced to that already undergone by each of them. We also reduce the sentence of fine fro Rs. 5,000 to Rs. 2,500.

S.Q Appeal partly accepted.

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