1. ' MUHAMMAD HALEEM, C J.--Leave to appeal was granted to consider whether the observations of the High Court in paragraph 11 of its judgment would entitle the appellants to the benefit of Exception IV to section 300, P.P.C. The case otherwise was not open for consideration on the merits as according to the assessm ent of the evidence by the High Court.
2. ' The incident occurred at 9-30 p.m. On 20th of September, 1972. At the washing ground of Rickshaws adjacent to a service station at Jain Mander near Old Anarkali, Lahore. Farooq Khan (PW 17), deceased Gulla Jan and Hussain Khan were washing the Rickshaws when Nizam arrived with his own Rickshaw and started washing it. After washing, instead of removing it, allowed to remain there upon which Farooq Khan told him to take it away, but Nizam did not pay any heed to it and remonstrated which led to an exchange of abuses between him and Farooq Khan. He thereafter left threatening him. A little later, he came alongwith five other persons namely, Meena, Sharif, Muhammad Younas alias Kaka Shaikh and two others whose names were not known but Farooq Khan who lodged the report, stated that he would be able to identify them. They abused Farooq Khan and Nizam exhorted them to attack. And as Abdul Akbar Khan (PW 8) father of Farooq Khan stepped forward to intervene, he was given two knife blows by Sharif in the abdomen. Farooq Khan, however, managed to escape. Sharif thereupon inflicted another Khanjar blow in the abdomen of Gula Jan. Muhammad Younas alias Kaka Shaikh caused a knife blow to Hussain Khan in the abdomen. Thereafter the assailants made good their escape.
3. ' The trial Court accepted the ocular account furnished by Abdul Akbar Khan (PW 8), Sultan Khan (PW 10), Dawa Khan (PW 11), and Farooq Khan (PW 17), and convicted Muhammad Sharif and Muhammad Younas alias Kaka Shaikh on the capital charge and sentenced them to death and also awarded fines. Muhammad Sharif was also convicted under section 307, P.P.C. The trial Court while convicting them held: "In the light of the above discussion, I conclude that there is a strong consistent ocular evidence of as many as four witnesses against the accused. P.Ws. Are natural witnesses to the incident and their evidence can be relied upon without hesitation. The veracity of evidence cannot be, therefore, doubted. There is no substance in the defence given by the accused as it does not inspire confidence. The accused made inarticulate protest which does not appeal to human mind.
4. ' I have, therefore, no hesitation to conclude that the injuries on the persons of Gula Jan and Hussain Khan deceased which resulted in their death had been caused by Sharif and Muhammad Younas alias Kaka Sheikh accused with the intention of causing their death. Accordingly, I hold them guilty of the charge against them which is proved beyond any reasonable doubt."
5. ' On appeal and reference, the High Court accepted the assessment of the trial Court but in the matter of sentence held, relying on the testimony of Abdul Akbar Khan (PW 8), Sultan Khan (PW 10), Dawa Khan (PW 11) and Farooq Khan (PW 17) that it was a sudden flare up without there being any previous enmity between the parties on account of sudden and grave provocation arising out of an exchange of abuses between the parties.
6. ' The learned counsel for the appellants vehemently urged that in the context of the above finding recorded in paragraph 11 of the judgment, it was a case of mitigation of the offence as it fell within the ambit of Exception IV to section 300, P.P.C.
7. ' We regret we do not agree with the learned counsel as upon the facts and circumstances of the case accepted by both the Courts below it was Nizam who had taken exception to the removal of the Rickshaw on the saying of Farooq Khan (PW 17)and abused him and in turn he was also abused. Thereafter he brought the other assailants amongst whom Muhammad Sharif and Muhammad Younas alias Kaka Shaikh were armed with a Khanjar and a knife. They again abused Farooq Khan and from amongst them Muhammad Sharif caused blows with his Khanjar to Abdul Akbar Khan and Gulla Jan while Muhammad Younas stabbed Hussain Khan with his knife. The two deceased had not taken part in the first occurrence and the attack on them was wholly unwarranted. It was a one-sided affair and there was no semblance of a fight between them. Mere exchange of abuses is not enough as according to Exception IV to section 300 there has to be something more than it. The words 'fight' and 'quarrel' used in the Exception side by side indicate more than a mere exchange of abuses, and that the fight must follow it. The other qualifications are that it should be sudden and the assailants should not have taken undue advantage in the fight over the victim. None of these essential elements are present to bring the case within the Fourth Exception. It was a one-sided attack with lethal weapons against those who were not in the fight itself after an exchange of abuses with Farooq Khan who had managed to escape. Similarly, his father too was not involved in the affair and had not taken any part in the transaction either before or at the time of attack. Besides, they were all unarmed and were not in a position to defend themselves.
8. ' In this view of the matter the High Court was correct in only granting to both Muhammad Sharif and Muhammad Younas alias Kaka Shaikh the benefit of the lesser sentence.
9. ' The appeal, accordingly, fails and is dismissed. However, the benefit of section 382-B, Cr.P.C. Shall be extended to the appellants while computing their sentence of imprisonment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.