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Criminal Appeal No. 77 of 1981, decided on 22nd March, 1986.

(On appeal from the judgment and order of Lahore High Court, Lahore, dated 30‑11‑1980 in Criminal Appeal No. 425 of 1978).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted on consideration that High Court found occurrence a case of sudden fight during gambling, without pre‑meditation or previous enmity but denied benefit to accused of Exception IV to 5.300,_ Penal Code, because it was thought that accused 'acted in a cruel manner and took undue advantage against deceased and witnesses who were all unarmed"‑‑To hold complainant party "being unarmed" was, prima facie inconsistent with injuries suffered by accused side which fact prima facie had been established by medical evidence.

‑‑‑Ss. 302/307/34 & 304,Part I‑‑Motive for crime not mentioned in first information report‑‑Quarrel ensuing suddenly‑‑Accused and complainant side were on visiting and friendly terms and during gambling they fell out and attacked each other‑‑None of parties was prepared or had any predesign to harm adversary to such an extent as to cause serious injuries resulting in death‑‑Conviction of accused altered from S. 302. Penal Code to S. 304, Part I, Penal Code, and sentence of life imprisonment altered to that of ten years' rigorous imprisonment.

‑‑‑S. 449‑‑Conviction of accused under S. 449, Penal Code, not sustainable from evidence on record‑‑Conviction set aside.

‑‑‑S. 300, Exception 4‑‑Considerations to be kept in mind while applying Exception IV to S. 300, Penal Code, stated.

‑‑‑S. 300, Exception 4‑‑Applicability of Exception IV to S. 300‑‑Exception IV is applied only to cases in which parties to combat were equally matched in point of muscular strength, skill and arms etc. for where there was no manifestly gross inequality in strength or in other particulars it should not be considered sufficient circumstance to remove case from operation of Exception I V to S . 300 , P . P . C .

Ch. Ghulam Ahmad, Advocate Supreme Court for Appellants.

Muhammad Bilal (for A.‑G.) Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for the State.

Date of hearing: 22nd March, 1986.

‑‑Leave was granted by this Court vide order, dated 1‑12‑1981, on the consideration that the learned High Court Judges found it a case of fight on sudden quarrel during gambling, without pre‑meditation or previous enmity, but denied benefit to the appellants of Exception IV to section 300, P.P.C. because then thought that the accused "acted in a cruel manner and took under advantage against the deceased and the witnesses who were all unarmed", therefore, to hold the complainant party "being unarmed" is inconsistent with the injuries suffered by the accused /appellants side, which fact prima facie has been established by the medical evidence.

2. Abdul Shakoor, his brother Abdul Sakoor alias Sabir and Ghulam Sarwar were tried by the learned Additional/ Sessions Judge, Rawalpindi for committing .the murder of Jamroz Khan, and Hanif on two counts under section 302, ,P:P.C. and for attempting on the lives of Haji Abdul Hamid, Sargul and Javed Gul P.Ws. on two counts under section 307 read with section 34, P.P.C. in the Ahata of Haji Abdul Hamid situated in Satellite Town, Rawalpindi; and were convicted and sentenced as follows: ‑

Death under section 302/34, P.P.C. fine of Rs.500 or in default, one year's R.I. for committing the murder of Jamroz. Imprisonment for life, fine Rs.500 or in default one year's R.I. under section 302/34 for murdering Hanif. Two years' R.I., fine Rs.300 or in default, 6 months' R.I., under section 307/34 for murderous assault on Hameed, P.W. Five years' R.I., fine Rs.300 or in default, R.I. for 6 months' under section 307/34 for murderous assault on Sargul. Six months' R.I., fine of Rs.100; in default 1 month R.I. under section 307/34 for murderous assault on Javed Gul P.W.

Death under section 302/34, P.P.C., fine of Rs.500 or in default one year's R.I. for committing the murder of Hanif. Imprisonment for life, fine Rs.500 or in default one year's R.I. under section 302/34 for murdering Jamroz Khan. One year's R.I., fine Rs.100 or in default, 3 months' R.I. under section 307/34 for murderous assault on Haji Hameed. Two years' R.I., fine Rs.100 or in default 1 month R.I. under section 307/34 for murderous assault on Sar Gul P.W. One year's R.I. and fine of Rs.200, in default, 3 months' R.I. under section 307/34 for murderous assault on Javed Gul.

Death under section 302/34, P.P.C fine of Rs.500 or in default one year's R.I. for committing the murder of Jamroz. Imprisonment for life, fine Rs.500 or in default one year's R.I. under section 302/34 for murdering Hanif. One year's R.I., fine Rs.100 or in default, 3 months' R.I. under section 307/34 for murderous assault on Haji Hameed P.W. Two years' R.I., fine Rs.100 or in default, month R.I. under section 307/34 for murderous assault on Sar Gul, P.W. Six months' R.I ., fine Rs.100, in default, 1 month R.I. under section 307/34 for murderous assault on Javed Gul, P.W.

Death sentence of all the three accused /appellants was subject to confirmation by the High Court. The three appellants were also sentenced to 7 years' R.I. each under section 449, P.P.C. The sentences of imprisonment of fine imposed on the accused /appellants were ordered to take effect if sentence of death was converted to imprisonment in which case all the sentences except those awarded in default of payment of fine were directed to run concurrently. It was also ordered that out of fine imposed for committing the murder of Jamroz Khan, if realised, one‑half shall be paid to the legal heirs of the deceased; out of fine imposed for murdering Hanif, if realized, one‑half shall be paid to his legal heirs and out of fine imposed for making murderous assault on Haji Abdul Hamid P.W. if realized, one‑half shall be paid to him; out of fine imposed for making murderous assault on Sar Gul, if realised, one‑half shall be paid to him; out of fine imposed for making murderous assault on Javed Gul, if realized, one‑half shall be paid to him.

3. Appeal against the conviction and sentence of the accused/ appellants was filed in the Lahore High Court and Murder Reference for confirmation of their death sentence, was also placed before the learned Judges who held that it was not possible for the witnesses to state with exactitude as to which accused/ appellant gave Chhuri blow to which deceased or P.W. and in which order, and, therefore, the responsibility for fatal blows cannot be determined precisely. Considering all this the learned High Court Judges answered the Murder Reference in the negative and converted the death sentence, awarded to the accused /appellants for committing the murder of Jamroz and Hanif, to life imprisonment; while amount of fine was increased from Rs.500 to Rs.5,000 each, in default, to suffer further R.I. for three years' each. 3/4th of fine, if recovered, was ordered to be paid as compensation to the heirs of the deceased in equal shares. Other conviction and sentences awarded to the accused /appellants by the learned trial Court, were maintained vide the impugned judgment, dated 30‑11‑1980 wherein the observation of the learned Judges is recorded as follows:‑

"This would establish that the incident took place only on account of the dispute which arose during the course of gambling. It is also very probable, as stated by the appellants, that they were taking liquor during gambling and in such state of affairs we find it difficult to believe that it would be possible for the witnesses to state with exactitude as to which appellant gave blow to which deceased or which P.W. and in which order and, therefore, the responsibility for the fatal blow cannot be determined with exactitude. Considering all these factors, we would not confirm the death sentence awarded to Abdul Shakoor and Ghulam Sarwar appellants for the murder of Jamroz Khan and to Abdul Saboor alias Sabir appellant for the murder of Hanif, and would substitute the sentence of imprisonment for life for the same ....

4. According to prosecution witness Haji Abdul Hamid P.W. 17 on the day of occurrence at about 3‑45 p.m. Hanif deceased was sitting in his Ahata situated in Satellite Town when Abdul Shakoor accused/ appellant came there on a bicycle and asked Hanif deceased to lend some money to him for 'kharcha'; that Hanif deceased refused to lend any money to Shakoor, on this they started quarrelling and exchanged abuses; that on hearing the row he, alongwith Jamroz Khan deceased, came out of his house and rebuked Shakoor for hurling abuses in his Ahata; that Abdul Khaliq and Sadiq also came there and they pushed Abdul Shakoor accused /appellant out of the Ahata; that on his inquiry from Hanif he was informed that he (Hanif) had won some money from Shakoor and he was demanding the return of that money; that after pushing Shakoor out of the Ahata, he alongwith Jamroz and Hanif deceased sat there; that after about 15 minutes all the accused/ appellants came in the Ahata, armed with Chhuris; that he and the deceased raised alarm which attracted Sar Gul and Javed Gul and Banaras P.Ws.; that Shakoor accused /appellant inflicted two blows on his back and he fell down, then leaving him Shakoor went towards Jamroz and attacked him with Chhuri who was already being caused injuries by Sarwar accused/ appellant; that Hanif deceased came forward to help him (Hameed) but Shakoor went towards Hanif and started giving blows to him (Hanif); that Sar Gul and Javed Gul P.Ws. pelted stones brickbats and bottles at the accused/ appellants in order to save the witnesses and the deceased; that Hanif and Jamroz, after sustaining injuries, fell to the ground; thereafter Shakoor inflicted dagger injuries to Sar Gul and Saboor accused /appellant dealt blow to Javed Gul P.W.; that the two deceased Jamroz and Hanif died on the spot and the accused/ appellants ran away alongwith their Chhuris; that many persons came to the spot and he was removed to the hospital where Ch. Muhammad Aslam (S.H.O.) P.W. 19 came and recorded the F.I.R. Exh. P.A.

5. Sar Gul P.W. 16 was an employee of Mushtaq Autos, Satellite Town, Rawalpindi during the days of occurrence. He stated that he was on his job when he was informed by Javed P.W. that heard noise from the Ahata of Haji Abdul Hamid, therefore, he and his brother said P.W. Javed Gul went in the Ahata, and saw Shakoor inflicting Chhuri injuries to Haji Abdul Hamid and Sarwar inflicting injuries to Jamroz Khan; that Hanif tried to rescue Haji Hamid P.W. and Jamroz deceased but Saboor accused /appellant inflicted Chhuri injuries to Hanif; that Haji Hamid, on receipt of injuries, fell down anal then Shakoor started inflicting Chhuri injuries to Jamroz Khan (father of P.W. Sar Gul) and then leaving Jamroz, Shakoor started inflicting injuries to him and Saboor accused inflicted Chhuri injuries to his brother Javed Gul P.W.; that his father Jamroz and Hanif died on the spot; that he had stated before the Police that 'we had pelted broken bottles on the accused (confronted where the pelting of broken bottles is not specifically mentioned).

6. Javed Gul P.W. 18 stated that he was working as apprentice in 'Mushtaq Autos' when he heard noise, on the day of occurrence, coming out of Ahata of Haji Abdul Hamid, P.W. Giving ocular account of the occurrence similar to the one given by his brother Sar Gul P.W. 16 as mentioned in para.5 above, he also stated that all the three accused/ appellants received injuries with stones and broken bottles "I stated before the Police that the accused received injuries with bricks and stones etc. pelted by us" (confronted with Exh. D.C. where facts of pelting of bricks etc. is mentioned but the receiving injuries by the accused is not specifically recorded).

7. Muhammad Aslam (P.W. 19) then S.H.O. Police Station, New Town stated that on receiving telephonic information regarding the incident he 'deputed Muhammad Khalil A.S.I. to guard the place of occurrence and went to D.H.Q. hospital and contacted Haji Abdul Hamid, who was in injured condition and recorded his statement Exh. P.A. Thereafter he went to the place of occurrence and found the dead bodies of Jamroz and Hanif lying there; prepared injury statements, inquest reports and sent the dead bodies to mortuary for post‑mortem examination; that he again went to the hospital and recorded the statements of Sar Gul P.W. and Javed P.Ws. who were injured and admitted in the hospital; that he also found accused /appellants, Abdul Shakoor, Abdul Saboor and Sarwar admitted in injured condition, in the hospital and he arrested them.

8. Dr. Muhammad Siddiq medically examined Saboor accused on 24‑7‑1975 and found 11 lacerated and contused wounds of various dimensions on different parts of his person but found all these 11 injuries to be 'simple' The same doctor also medically examined Sarwar accused found 4 simple injuries on his person, caused by blunt and sharp‑edged weapon.

9. Dr. Agha Muhammad Zafar medically examined Abdul Shakoor accused/ appellant and found a stab incised wound on the back of chest caused by sharp‑edged weapon and six bruises, lacerated wounds and abrasion on various parts of his person, caused by blunt weapon and all the injuries were declared simple.

10. Same doctor performed the post‑mortem examination on 25‑7‑1975 on the dead body of Jamroz Khan and found a stab injury on abdomen and as many as 12 incised wounds of various dimension on different parts of the body, of which injuries Nos. 5 and 6 were sufficient to cause death individually and collectively in‑the ordinary course of nature. All the injuries were found to have been caused by sharp‑edged weapon and cause of death, in the opinion of the doctor, was shock and hemorrhage.

11. Dr. Muhammad Zafar also conducted the post‑mortem examination on the dead body of Muhammad Hanif the same day and found four incised wounds on upper part of sternum, chest cavity, left wrist and abdomen caused by sharp‑edged weapon. Injury on upper part of abdomen was found sufficient to cause death in the ordinary course of nature, and cause of death of Hanif deceased was shock and hemorrhage.

12. When examined at the trial under section 342, Cr.P.C. Abdul Shakoor accused/ appellant stated that he had received the injuries during the occurrence which actually took place in this manner:

"I, Sarwar co‑accused, Hanif deceased, Sar Gul P.W. and 5/6 persons were gambling in the Kothri of Hanif deceased. We had taken liquor. Hanif and Sar Gul started quarrelling over stake money. Hanif deceased gave beating to Sar Gul and Sar Gul beat Hanif deceased. Hanif and Sar Gul brought out Chhuris. On seeing the deceased and Sar Gul armed with Chhuris, I came out. Haji Abdul Hamid with his servants came there and he directed his servants to give beating to me. The servants started giving beating to me. I was inflicted Sotis blows on my head, and Chhuri blow on my back. I fell unconscious."

13. In his statement recorded under section 342, Cr.P.C. Ghulam Sarwar accused/ appellant explained as to how, he got the injuries on his person, stating:

"Jamroz deceased has caused me injuries with Chhuri. I caught Chhuri with my hand and as a result of that my fingers were cut. Actually occurrence took place in this manner. On the day of occurrence myself, Shakoor accused, Sar Gul P.W., Hanif deceased, table man of Haji Abdul Hamid and Gulla were gambling in the Kothri of Hanif. We had also taken liquor and empty liquor bottles were lying there. Hanif and Sar Gul P.W. started quarrelling with each other. Haji Abdul Hamid, along with 4/5 servants came there. They started pelting stones on us. Jamroz armed with Chhuri, also came and fell on me. I warded of his blow by facing on my hand Jamroz attacked me because he thought that I had fought with his son Sar Gul."

14. Abdul Saboor accused /appellant when questioned during the trial about his injuries, stated:

"I was not present at the time of occurrence. On hearing about the occurrence, I went there and found my brother Abdul Shakoor unconscious, and while putting him in the taxi, my head struck against the door of the taxi, and in this way I received injury."

15. Haji Abdul Hamid P.W. 17, who is also the first informant in the case, has given the details of the occurrence in his report Exh. P.A. but he has omitted to mention if there was any counterattack by the witnesses or the deceased to save themselves from the assault of the accused /appellants, by throwing stones and broken bottles on them. Motive for the crime is not mentioned in the F.I.R. Therefore, the) matter boils down to that it was a sudden quarrel and sudden fight. The stress which is laid upon this is to be remarked. The degree or kind of provocation does not so much enter into consideration here as the suddenness of the dispute and of the fight that follows. The lapse of time between the quarrel and the fight is, therefore, a very material consideration. The number of wounds is not the criterion but the position of the combatants with regard to their arms and the use of those arms are the considerations to be kept in mind when applying Exception I V to section 300, P. P. C . It may be material also to enquire what were the previous relations between the disputants. If the persons are strangers to each other until the time of the quarrel and have no previous cause of contention, the fight will probably be 'in the heat of passion upon a sudden quarrel' within this exception. Still more so if they have lived previously upon terms of intimacy and friendship and no cause of contention had arisen.

16. As regards undue advantage it must not, however, be supposed that the exception applied only to cases in which the parties to the combat are equally matched in point of muscular strength, skill and D arms, etc. For where there is no manifestly gross inequality in strength or in particulars should not be considered sufficient to remove the case from the operation of this exception. Therefore, considering all the circumstances of the present case it cannot be ruled out that the accused /appellants and the complainant side were on visiting and friendly terms and that during the gambling they fell out and attacked each other. None of the parties was prepared or had any pre‑design to harm the adversary to such an extent as to cause serious injuries resulting in death. Hence, we consider it a fit case where the conviction from section 302, P.P.C. be altered to S. 304(I), P.P.C. on two counts, and we alter the sentence of life imprisonment of the three accused/ E appellants to that of 10 years' rigorous imprisonment under section 3040), P.P.C. each. The fine on these two counts shall remain as imposed by the learned High Court Judges. Regarding the attempted murder of the P.Ws. we alter the conviction from section 307 to section 308, P.P.C. and each of the accused /appellants shall suffer R.I. for two years on two counts. As far as conviction under section 449, P . P . C . is concerned it is not sustainable on the evidence on record. Therefore, we set aside the sentence awarded to the accused /appellants under section 449, P.P.C. The sentence of substantive terms of F imprisonment shall run concurrently. Benefit of section 382‑B, Cr.P.C. is extended to the accused/ appellants. With this modification this appeal is partly allowed.

M. Y. H. Appeal partly allowed.

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