1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 14th April, 1971, by which Criminal Appeal No. 530 of 1967 was partly allowed.
2. Leave to appeal was granted to consider the question whether the High Court was correct in altering the conviction of Muhammad Ramzan, the second respondent herein, from section 304, Part I, P. P. C. To section 304, Part II, P. P. C. And substituting a sentence of 5 years in lieu of transportation for life.
3. According to the prosecution, Muhammad Siddiq, a prosecution witness, ran a grocery shop in Chak No., 8/1-A. L. Muhammad Alain, the acquitted accused, purchased some articles on credit and promised to pay the amount some times later. On 24th of August, 1965, at about 11 a.m. As Muhammad Alam and Muhammad Amir, another acquitted accused, happened to pass in front of his shop. Muhammad Siddiq demanded the payment of the outstanding amount on which they grappled and inflicted injuries on him, his brother, Muhammad Rafiq, who was then in the house, came out and intervened to separate them. Muhammad Alam, thereupon, gave a fist blow on his left eye. In the meantime, the second respondent emerged from his nearly Ihata and after taking out a knife from his right Dub he gave a blow to Muhammad Rafiq on his left flank who fell down.
4. Thereafter, all the three decamped from there. This incident was also ' witnessed by Rebmat Ali Abdullah and Majha. Soon after, the appellant, father of Muhammad Rafiq, came to the spot to whom Muhammad Siddiq gave out the facts. He then removed Muhammad Rafiq to the Civil Hospital, Dhuniwaal, for treatment. He next went to lodge the report at Police Station, Renala Khurd where it was recorded at 3 p.m. The same day. As Muhammad Rafiq was conscious, his statement was recorded by Jahangir Khan, A. S. I., and he expired at 1 a.m. On 26th of August, 1965.
5. Muhammad Siddiq produced a note-book which was seized. The second respondent was arrested at 8 a.m. On 26th of August, 1965, on being produced by Ghulam Rasul. He, thereafter, led to the recovery of a blood stained knife. His accomplices namely, Muhammad Alam and Muhammad Amir were also arrested.
6. On the deceased Dr. Zahoorullah, A. M. O., noticed a stab wound which proved fatal and a "contused mark" below the left eye. On Muhammad Siddiq, there were as many as six injuries which were simple in nature and caused by a blunt weapon. Muhammad Alam, the acquitted accused, received as many as 5 superficial incises which, according to Dr. Muhammad Rashid, were "most probably" caused by a friendly hand.
7. The prosecution examined Muhammad Siddiq, P. W. 4, Abdullah, P. W. 5, Majha, P. W. 6 and Rebmat Ali, P. W. 7, to furnish direct testimony. Ghulam Rasul, P. W. 8, was examined to prove that he produced the second respondent and Muhammad Amir, the acquitted accused, S. H. O. On 26th of August, 1965. The evidence of the note-book was led to establish the amount outstanding against Muhammad Alain.
8. The second respondent, when examined, disclosed that the knife secured from him belonged to the deceased and he further adopted the statement of Muhammad Alam which is as under :- "It was coming back from Dhuniwala after receiving my salary and Muhammad Amir accused was not with me. I gave him a ten rupee note and asked him to return the remaining amount. He told me that he did not have any change with him and that he would also not return my ten-rupee note. Muhammad Siddiq P. W. Had come and asked me for this money in front of the main gate of my `Mate'. After he gave this reply a quarrel ensued in which we exchanged abuses. Muhammad Rafiq deceased turned up in the meantime. He had the knife P.3 with him. Muhammad Siddiq threw me on the ground and Rafiq deceased started giving me blow with the knife. I raised an alarm and Ramzan accused reached there Ramzan caught hold of Rafiq from his waist. Rafiq tried to turn round to attack Ramzan accused but Ramzan secured his right hand in which he was holding the knife and pressed it round the chest of the deceased with both the hands. In the struggle they fell down and the knife penetrated into Muhammad Rafique's ribs. My uncle Said appeared as a witness against Muhammad Shoaib cousin of Muhammad Shoaib P. W. In a case of murder. I produce Exh. D. F. a certified copy of the statement of my uncle Said in that case. I am innocent. I will produce the Medical Officer who carried out my medical examination."
9. At the trial Abdullah, Majha and Rehmat Ali supported the prosecu--tion version as given out rby Muhammad Siddiq which was believed by the trial Court. The trial Court further held that the injuries suffered by Muhammad Alam were no more than scratches and, therefore, they were not the result of an attack by an assailant, the moreso in the context of the medical opinion. But in regard to the applicability of section 34, P. P. C., the trial Court held that the evidence on record did not establish common intention. It thus held:-- "As it is Muhammad Alam and Amir accused who were grappling with Siddiq and the deceased was trying to separate them when Ramzan accused came and gave him a fatal blow. If this is the position then Amir and Alam accused' cannot, be said to have had a common intention with Ramzan accused."
10. Further, the trial Court concluded that it was likely that Muhammad Alam might have been overpowered by Muhammad Rafiq deceased and Muhammad Siddiq, therefore, the infliction of the knife blow by the second respondent must be regarded as one in the exercise of the right of private defence and as there was no apprehension of grievous injury to Muhammad Alam, the second respondent, had exceeded the right of private defence as he had done more harm than what was necessary. Accordingly, the trial Court gave the benefit of Exception 2 to section 300, P. P. C. Though erroneously Exception 2 is mentioned in the judgment; and convicted him under section 304, Part I, P. P. C. And sentenced him to transportation for life.
11. On the conclusion reached by the trial Court that the injuries suffered by Muhammad Aslam were not the result of an attack by either Muhammad Siddiq or Muhammad Rafiq, it becomes clear that the other side was unarmed. Therefore, it cannot be said that he acted in good faith or that he bad no intention of doing more harm than what was necessary for the purpose of his defence to bring his case, within the four corners of exception, (2) to section 300, P. P. C. Equally, as he gave a blow with a lethal eapon, he acted in a cruel manner which again renders Exception 4 to section 300, P.
12. P. C. Inapplicable to his case. This conclusion is based on the principle stated in Abdul Majid v. The Crown (PLD 1954 FC 304), which is as under :- "The principle, however, is clear that where a man being dangerously armed fights under an unfair advantage, the killing is murder and not merely manslaughter, even though mutual blows pass; and decisions, both here and in England, have uniformly laid down that if in the course of a sudden fight one party resorts to a dangerous weapon, like a knife, a dagger, a hatchet or a firearm, the other party being wholly unarmed, and causes mortal injuries to his adversary, the offence committed is nothing but murder."
13. I - the result, it is a case of murder simpliciter but as the State did not prefer an appeal against his acquittal on the capital charge, the conclusion of the trial Court assumed finality although in law the benefit could not be extended to the second respondent.
14. On appeal, the High Court further extended the benefit by altering his conviction from section 304, Part I to section 304, Part II, P. P. C. And substituting a sentence of five years on the view it took as under :- "The prosecution case, as already noted, is that when Muhammad Alam saw himself faced by the deceased and P. W. Siddiq he raised an alarm as a result of which the appellant, whose house was situated at about 8 karams, rushed out and upon approaching the place where the scuffle was going on, took out knife from his dub and inflicted a single blow on the left flank of the deceased. In these circumst--ances the action of the appellant was justified within the meaning of section 97, P.
15. P. C. But he certainly exceeded the prescribed limits within which the right of private defence is allowed to be exercised because the knife injury caused by him to the deceased was in his chest as a result of which his stomach, right lung and left pleura were cut and considerably damaged.
16. Notwithstanding this position, however, the appellant, for the reasons already discussed, cannot be said to have intended to cause the death of the deceased or of causing him such bodily injury as was likely to cause his death so as to justify his conviction under the first part of section 304, P. P. C.
17. If this be so then the case of the appellant was clearly covered by the second part of section 304, P, P. C. And consequently his conviction under the first part of that section and the sentence of transportation for life awarded to him are not justified.
18. This alteration of conviction is wholly erroneous as it was the case of a sudden fight in the course of which the second respondent had acted under an unfair advantage in causing the fatal knife blow to the deceased who was unarmed and so was his brother Muhammad Siddiq. In this eventuality the plea of self-defence was not open to the second respondent on the principle hereinabove cited. Again, the High Court was clearly wrong in holding that the second respondent had no intention to cause the death of the deceased or causing such bodily injury as was likely to cause his death on the facts of the present case. I may point here that having regard to the language of sections 299, 300 and 301, P. P. C. Culpable homicide may not be murder where notwithstanding that the mental state is sufficient to constitute murder, one of the exceptions to section 300 applies, or where the mental state, though within the descrip--tion of section 299, P. P. C., is not of the special degree of criminality required by section 300. Such is not the case here. Therefore, it is difficult to uphold this conviction of the High Court but as his conviction under section 304, Part I was not assailed, it remains in the field though equally it is erroneous. Accordingly, we would allow the appeal, set aside the order of the High Court to this extent and restore that of the trial Court.
19. By order dated 12th of December, 1975, this Court directed the second respondent to be taken into custody and in compliance of it he was arrested. The period that he has remained in custody during the pendency of this appeal should be taken into consideration in computing the sentence awarded by the trial Court on the view that this Court has taken in Ali Sher v. The State (Criminal Appeal No. 89 of 1975).
20. ASLAM RIAZ HUSSAIN, J.-I agree.
21. ABDUL KADIR SHAIKH, J.-I agree.