1. ' MUHAMMAD APZAL ZULLAH, J.-This appeal through leave of this Court is directed against conviction for murder and hurt, together with various sentences including death, confirmed by the High Court in its judgment dated 29-7-1978.
2. ' Misbahuddin, Muhammad Ayub (Junior), Khalid Mahmood and Muhammad Ayub (senior) were tried for the murder of Muhammad Naeem and for causing hurt with sharp-edged weapon to Abdul Hamid and Muhammad Sharif P. Ws. And were convicted under sections 302/34 and 324/34, P. P. C. They were sentenced as follows :- "Misbah-ud-Din to death and fine of Rs, 1,000. The other three accused persons imprisonment for life and fine of Rs, 1,000 each or in default one year's R. I. The fine if realised was to be paid to the heirs of the deceased under section 544-A, Cr. P. C.
3. ' All of them were also convicted under section 324/32, P. P. C. For causing injuries to the complainant and Muhammad Sharif, and awarded one year's R. I. On each count. The sentences were to run concurrently."
4. ' Misbahuddin caused a churri blow to Muhammad Naeem in his chest while Khalid Mahmood and Muhammad Ayub (senior) gave one churri blow each to Abdul Hameed and Muhammad Sharif.
5. Muhammad Ayub gave a blow with a wooden plank to Abdul Hameed. Misbahuddin was also injured, some of his injuries are, from their dimension, such which could have been caused with a stick like weapon. The motive for the crime was that Misbahuddin and his co-accused wanted to take away fuelwood of the deceased free of cost. On refusal there was an attack by the accused, wherein Muhammad Naeem was dragged away by them to a distance of 25 yards to nearby railway track. The complainant party was then given the injuries which have already been noted.
6. This motive was modified later on at the trial. It was said that a sister of Misbahuddin accused was betrothed to a brother of Muhammad Naeem who repudiated the engagement which gave cause to Misbahuddin for attack. The other accused were stated to be friends of Misbahuddin. Evidence was also led with regard to recovery of three churris which were found to have been stained with blood-from Misbahuddin, Khalid Mahmood and Muhammad Ayub (senior). The defence plea was of denial although during the cross-examination it was seriously suggested that it was the case of self-defence, on account of injuries to Misbahuddin.
7. ' Learned trial Court disbelieved Muhammad Sharif and relying on Abdul Hameed one of the insured P. Ws. And one Muhammad Akram who was mentioned the eye-witness in the F. I. R. As also on the recovery of churris convicted and sentenced the appellants as noted above. On appeal in the High Court adverse comment was made on the motive alleged from the prosecution side ; nonetheless the conviction and sentence were upheld. Leave to appeal was granted, amongst others, to examine the question whether the case did not fall under Exception 4 to section 300, P. P.
8. C.
9. ' Learned counsel for the appellants has raised only one point in support of this appeal namely that Misbahuddin having suffered several injuries in the same occurrence, the prosecution has not adequately explained them. And that the prosecution story suggested that there was a sudden dispute and quarrel between the parties which led to a sudden fight wherein Misbahuddin suffered injuries and that being so the accused party also caused injuries to Muhammad Naeem deceased, Abdul Hameed and Muhammad Sharif, P. Ws.
10. There is considerable force in the argument of the learned counsel that the injuries on the person of Misbahuddin have not been adequately explained by the prosecution. Although according to the doctor they might have been caused after the occurrence; but if the date of arrest is kept in view, it would not be possible to imagine that Misbahuddin would have been1 injured when in custody of the police. On the other hand, one of the injuries indicated that the time when he suffered the same could be contemporaneous with the time when the complainant party suffered the injuries. The motive asserted at the trial having been rejected by the High Court and the original motive asserted at the F. I. R. Stage from the complainant side having been abandoned, there is nothing in the circumstances of the case to contradict the suggestion that the parties quarreled on some' trifle; which led into a fight wherein the injuries were caused which resulted in death of Muhammad Naeem. The case is covered by Exception 4 t A section 300, P. P. C. As there was no premeditation and the number and nature of injuries also negative any undue advantage or cruelty. The right of private defence claimed by Misbahuddin side at the earlier stage, in view of application of Exception 4 would not be available in case like the present one as held in Syed Ali Bepari v. Nibaran Mollah and others (1). As a result of the foregoing discussion, we hold that Misbahuddin is entitled to the benefit of Exception 4 to section 300, P. P. C. And that being so, he is guilty of section 304, Part I. His conviction under sentence of death, under section 302, P. P. C. Is set aside, instead he is convicted under section 304, Part 1, and sentenced to 8'years' R. I. And a fine of Rs, 10,000 in default whereof h shall suffer five years' R.
1. He shall also pay Rs, 1,000 as compensation under section 544-A, Cr. P. C. Both the amounts, that is Rs, 1,100 when recovered, shall be paid as compensation to the heirs of Muhammad Naeem deceased.
11. ' The case of the remaining accused is distinguishable from that of Misbahuddin. This was a sudden quarrel in which question of furtherance of common intention would not arise. Moreover, it is an admitted position that the churris held by the accused persons were not being brandished at the time of occurrence and were kept in their respective dubbs, by the accused. None of them caused any serious wound to their adversaries. They are not, therefore, vicariously guilty either for the act of Misbahuddin or the act of each other. Their conviction under section 302 read with under section 34, P. P. C. Is accordingly set aside. Muhammad Ayub is convicted under
(1) PLD 1962 SC 502 ' section 324, P. P. C. As he caused only a simple hurt with blunt weapon. He has already served more than the sentence which could be imposed for the offence, it is, therefore, not necessary now to impose any sentence in his case. Khalid Mahmood and Muhammad Ayub (senior), son of Muhammad Yaqub, are held guilty for their individual acts of having caused one simple injury each to the eye-witnesses with sharp-edged weapons. They are accordingly held guilty under section 324, P. P. C. Their conviction under section 302, P. P. C. Read with section 34, P. P. C. Is set aside.
12. Under section 324, P. P. C. They were awarded 1 year's R. I. Each ; which sentence is maintained.
13. Learned counsel for the appellants did not dispute the fact that it was necessary to award compensation under section 544-A, Cr. P. C. Unless there are reasons otherwise not to do so.
14. Accordingly, it is directed that Khalid Mahmood and Muhammad Ayub (senior) shall pay Rs, 1,000 each as compensation to Abdul Hameed and Muhammad Sharif P. Ws. And in default therecf suffer six months' R. I. Each. It is not necessary to award any compensation against Muhammad Ayub (junior) son of Muhammad Bashir, as he is alleged to have caused insignificant abrasions to Abdul Hamad who otherwise would be compensated by Muhammad Ayub son of Muhammad Yaqub for having suffered incised wounds on his arm at the hands of said Muhammad Ayub, ' With the foregoing modifications, this appeal is partly allowed.