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Criminal Appeal No. 720 of 1985, heard on 5th November, 1986.

--S. 304, Part I--Quantum of sentence--Conviction not challenged- Occurrence over trifle matter--Complainant bringing out deceased, his brother from home for dealing with accused--Sudden fight during sudden quarrel--Accused inflicting solitary injury to deceased--Sentence of accused, reduced from 8 years' R.I. to 5 years' R.I. in circumstances.

Naseerud Din Haider v. The Crown P L D 1950 Lah. 171 ref.

Khan Zia-ud-Din Khan for Appellant.

Muhammad Zafar Yasin for the State.

Date of hearing: 5th November, 1986

Muhammad Afzal alias Pappu was tried by a learned Sessions Judge of Sheikhupura under section 302, P.P.C. for the murder of Muhammad Afzal, deceased, but was convicted under section 304-1, P.P. C. and sentenced to eight years' rigorous imprisonment with a fine of Rs.4,000 or in default thereof to undergo further rigorous imprisonment for two years. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The benefit of section 382-B, Cr.P.C. was also granted to the accused. The appeal (Criminal Appeal No. 720 of 1985) preferred by Muhammad Afzal, convict, is now before me for disposal.

Brief facts of the case are that, on 10-9-1984 a pigeon belonging to Muhammad Arshad, complainant P.W. 4 flew away and sat on the flour machine of one Shahid. In order to capture the pigeon, the complainant took four other pigeons with him and started feeding all of them on the flour machine aforesaid. In the meantime, Muhammad Afzal alias Pappu, accused, came there and threw a stone at the pigeon, as a result of which it flew away and thus the complainant could not succeed in capturing his pigeon, which separated from the other pigeons. Hot words were exchanged between the complainant and the accused on that account, but they were separated by Muhammad Ashiq and Muhammad Saeed P.Ws. The complainant then proceeded to his house and informed Muhammad Afzal, deceased, his elder brother, and both of them came back to protest to the accused over his behaviour and they found him near the shop of Abbas P. W . 7 in the Chowk. The deceased protested to the accused, whereupon hot words were exchanged between them and during the altercation they also abused each other. The accused then ran to his house and brought a Chhuri Exh. P. 3 with him and struck a blow with it in the abdomen of the deceased, as a result of which he fell down. Abdur Rasheed and Ghulam Rasool P.Ws. were present in the shop of Abbas P.W. 7 and they were attracted by the noise. Abbas had followed Abdur Rashid and Ghulam Rasool P.Ws. They had seen the occurrence. Abdur Rasheed caught hold of Muhammad Afzal alias Pappu, accused, and snatched Chhuri from him. The accused was made to sit there and Muhammad Arshad P.W. 4 proceeded to Police Station, Sadar, Sheikhupura, to lodge report with the police.

3. I need not go into the merits of the case as Sh. Zia-ud-Din, learned counsel for Muhammad Afzal, appellant, does not challenge the conviction of the appellant, but only prays for reduction in the sentence. According to him, the appellant was only a young boy of 22 years of age, that actually Muhammad Arshad, complainant, had brought Muhammad Afzal, deceased, his elder brother, to assault the appellant, the appellant had inflicted solitary knife blow on the deceased during a sudden fight and upon a sudden quarrel as found by the learned trial Judge and, therefore, the sentence of eight years' rigorous imprisonment awarded by the learned trial Judge was excessive. The learned counsel for the appellant has cited Naseerud Din Haider v. The Crown P L D 1950 Lah. 171 to show that in a similar situation the High Court had awarded four years' rigorous imprisonment with fine to the accused. The learned counsel for the State opposes the request for reduction of sentence.

4. I have given my anxious consideration to this case. The occurrence occurred over a trifling matter. It cannot be doubted that the complainant pulled out the deceased, his elder brother, from his home, in order to deal with the appellant. The learned trial Judge has found as a fact that a sudden fight took place during a sudden quarrel, during which period the appellant inflicted the knife injury on the deceased. Taking all circumstances into consideration, I would reduce the sentence of the appellant from eight years' rigorous imprisonment to five years' rigorous imprisonment, but would maintain the fine. which has been awarded to the appellant by the learned trial Judge. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.

5. For the foregoing reasons, this appeal stands partly accepted, in terms of reduction in the sentence, as stated above.

S. A. Appeal partly accepted.

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