1. ' MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave of the Court is directed against the refusal by the High Court to interfere with the conviction of the appellant under section 302/326, P.P.C. His appeal was dismissed and sentences of life imprisonment as well as 5 years' R.I. With fine of Rs,2,000 were maintained.
2. ' The facts and points noted in the leave grant order are as follows:- Early in the morning on the 24th of February, 1981, a dispute arose over the utilisation of the irrigation water between the complainant party and the accused party allegedly comprising six persons. Lathi blows were exchanged resulting in the death of one from the complainant side and injuries to four of the accused persons also. Fifteen injuries were received on the complainant side and sixteen by the accused side. The trial Court acquitted one of the accused (Ghulam Haider).
3. The others were convicted under sections 148, 307/149 and 302/149, P.P.C.
4. ' On appeal, the High Court after reappraising the evidence, reached the conclusion as hereunder:- "On the complainant side Imam Bakhsh, Ahmad Khan, Muhammad Khan, Lal Khan, Muhammad Yousaf and Muhammad Aslam were injured. All of them including those who did not enter the witness box received 15 injuries in all. On the other hand, the appellants received 16 injuries in all.
5. The circumstances of the case negate any pre-meditation or preparation on the part of the appellants. The presence of dangs and sotas with both sides is not unusual circumstance. It was a sudden affair, in which passions were charged and a fight therefore, neither the complainant side nor the appellants can claim any right of self-defence. Each one has to be punished for his individual act. The question of the common object of unlawful assembly does not at all arise in such cases."
6. ' The conviction and sentence of the appellant under section 302, P.P.C. Was maintained. His conviction under section 307/149, P.P.C. Was, however, converted into one under section 326, P.P.C.
7. And he was sentenced to five years' R.I. And a fine of Rs,2,000. With regard to the other convicts, the sentence already undergone by them was considered sufficient and they were ordered to be released forthwith.
8. ' In view of the positive findings of the High Court, the legal question whether it was not a fit case of benefit of Exception 4 to section 300, P.P.C. And one under section 304-1, P.P.C. And not of conviction under section 302 and 326, B P.P.C. Required examination. Accordingly the appellant was granted leave to appeal.
9. ' Learned counsel for the appellant has reiterated the points narrated in the leave grant order. The findings of the High Court noted and reproduced above clearly show that but for the use of the expression "free fight" therein, the case falls within Exception 4 to section 300, P.P.C.
10. ' After hearing the learned counsel we feel satisfied that it was not a case of free fight in which both the parties were determined after premeditation to give a fight to each other. On the other hand as found by the High Court it was a sudden affair without premeditation and the case was of a sudden fight and not of free fight. And further it was such a sudden fight which would clearly fall in Exception 4 to section 300, P.P.C. Accordingly, the conviction under section 302, P.P.C. Is set aside and converted into conviction under section 304 Part I, P.P.C. The appellant is awarded sentence of 10 years' R.I. Under section 304, Part I, P.P.C. The sentence of fine is increased to Rs,10,000. The fine shall be paid as compensation to the heirs of the deceased. The appellant shall suffer further R.I.
11. For 3 years in default of payment of fine. The conviction under section 326, P.P.C. Apart from the aforenoted considerations otherwise also is not maintainable because the injury caused by him for which this conviction was recorded would call for conviction under section 325, P.P.C. Accordingly while maintaining the sentence of 5 years, the said conviction is altered from section 326 to 325, P.P.C. Both the sentences shall run concurrently.
12. ' Thus, with the above modification and alteration in conviction and sentences, this appeal is partly allowed.