1. ' MUHAMMAD AFZAL .ZULLAH, C.J.---In this appeal through leave of the Court in a case of murder, the High Court did rely on well-known case of Syed Ali Bepari PLD 1962 SC 502. But instead of granting due benefit to the convicts/(appellants herein) maintained their conviction under section 302, P.P.C. The question; whether, on the application of the principle laid down in the case of Syed Ali Bepari the conviction could not be altered to section 304, Part I, P.P.C. Was noted for examination in the order for grant of leave to appeal.
2. ' The observations of the High Court on the above subject are as follows:-- "The conclusion that we have arrived at, as a result of the above discussion, is, that there was mistrust between the parties and they were unhappy and annoyed with each other on different counts. The occurrence can, therefore, not be presumed to have happened only on account of the motive put forth by the prosecution.
3. ' It is obvious from the above discussion that both the parties neither came to the Court with clarity and honesty about the motive for the occurrence, nor they putforth facts correctly regarding the whole occurrence. The matter, however, does not end here. As held in Syed Ali Bepari V. Nibaran Mollah etc. PLD 1962 SC 502 incompleteness of tale should not deter Court from drawing proper references from evidence and circumstances available on record'. This is also a case of the type where the parties do not generally come out with the true story. This, in fact, is a case, where the parties have tried to minimise their own parts in the incident. We have, therefore, examined the whole case in the context of the law laid down in the above-noted case.: ' The place and the time of occurrence is not denied by either of the parties. The background, which according to the accused (appellants) led to the happening of the occurrence, also stands almost admitted during cross-examination by P.W.3, the star witness of the prosecution. Although the motive set up by the prosecution has been denied by the defence and the same appears to be far-fetched one also, but the happening of events in regard to the engagements and the breaking of those in that manner may be very few out of many but such ones cannot be ruled out absolutely.
4. ' It appears to us that the parties with that background of unhappiness and mistrust came across on the day of occurrence and fell with each other and had a free fight, which resulted in the death of two persons. In the circumstances, no one can be burdened of having common intention with the others. Each of the appellants as to be judged for his own deeds and misdeeds. That being the conclusion, Fida Hussain appellant cannot be held liable for having caused the death of Sher Muhammad. So also Muhammad Khan cannot be held liable for having caused the death of Khuda Bakhsh, because there is clear evidence on record that Fida Hussain had given the fatal blow to Khuda Bakhsh and Muhammad Khan had given the fatal blow to Sher Muhammad.
5. ' Coming to the liability of the offence that they can be burdened with, we are convinced that each of them cannot be convicted for offence less than under section 302, P.P.C., the reason being that the injury found on Khuda Bakhsh deceased had resulted not only in cut to the skull but fracture of the same also from the end of the cut to the right side of the head. The manner and the force with which Fida Hussain used the Kulhari, which of course is a formidable weapon, clearly shows that he was having intention and knowledge to cause the death ' In the case of Sher Muhammad deceased also the skull was found cut through and through. The said damage to the skull would also not have resulted unless the assailants, i.e, Muhammad Khan, had both knowledge and intention. Both the appellants are, therefore, convicted for offence under section 302, P.P.C. Each of them is sentenced to undergo imprisonment for life plus to pay a fine of Rs,5,000 each, in default whereof to suffer further R.I. For two years each. Each of them shall also pay a sum of Rs,1S,000 as compensation to the heirs of the deceased, in default whereof to suffer Si.
6. For six months each.
7. ' Sentences of death are not confirmed."
8. With respect the learned Judges as appears from the discussion in the impugned judgment they did come to a conclusion that it was a case covered by Exception 4 to section 300, P.P.C. That being so, the conviction should have been altered from one under sections 302 to 304, Part I, P.P.C. It was so held in the said case. Perhaps through inadvertence this peculiar feature of Syed Ali Bepari's case was not brought to the notice of the learned Judges in the High Court. However, despite observes ion on these lines during the hearing of the arguments learned counsel for the appellants stressed that the said findings could also be pressed in service by the appellants for clean acquittal on the basis of self-defence.
9. Firstly, leave was not granted on this point. And secondly, the explanation to Exception 4 to section 300, P.P.C. Makes it clear that when the said Exception is once attracted, it would be immaterial, in cases like the present one, as to which "party offers the provocation or commits the first assault'.
10. This position was also fuly explained in the case of Syed Ali Bepari. See also Abdur Rahman v. Gadai Khan and 3 others 1972 SCMR 676 and Criminal Petition No, 44-L/91 (Muhammad Iqbal v. The State) decided on 29-7-1991.
11. ' Accordingly the contention of the learned counsel for the appellants seeking acquittal on the basis of self-defence is not available in this case.
12. ' In the light of the foregoing discussion this appeal is partly allowed. The appellants are allowed the benefit of Exception 4 to section 300, P.P.C. And by virtue thereof their conviction is altered from section 302 to section 304, Part I, P.P.C. The sentence of life imprisonment is reduced to 10 years' R.I.
13. Each. There is no need to impose sentence of fine and award compensation separately.
14. Accordingly, instead thereof each appellant, in addition to the rigorous imprisonment of 10 years, is sentenced to Rs,80,000 each as fine which when recovered shall in its entirety be paid as compensation to the heirs of the deceased. If the fine is not paid the appellants shall further suffer 6-1/2 years' R.I. Each.