1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal, through leave of the Court, arises out of a murder case.
2. ' Leave to appeal was granted as follows:- "The facts, in brief, are that it is alleged that on 1-1-1983 the petitioners alongwith the co-accused armed with Sotis, Chhura and Revolver, attacked Javed Iqbal and Pervaiz Iqbal and caused them injuries with their respective weapons. Javed Iqbal died on 5-1-1983. The learned Sessions Judge convicted the petitioners under section 302/34, P.P.C. And imposed the sentence of death and fine of Rs,5,000 or in default to suffer R.I. For one year. He also convicted them under section 323/34, P.P.C. And each of them was sentenced to one year's R.I. The High Court maintained the conviction under sections 302 and 323, P.P.C. But the sentence of death was altered to that of life imprisonment. The fine in case of Muhammad Iqbal was enhanced to Rs,15,000 and in case of other petitioners, it was reduced to Rs,3,000 each.
3. ' According to the medical evidence the deceased Javed Iqbal had received one stab wound on the chest and incised scratch on the back of left hand which were caused by sharp-edged weapon. The rest were caused by blunt object. The injured Pervaiz Iqbal received two lacerated wounds and four abrasions, all simple in nature.
4. ' The point for consideration is inter alia whether the element of common intention arises in this case so as to attract the provision of section 34, P.P.C."
5. ' Learned counsel, while arguing the question of the furtherance of common intention, has relied upon the findings of the High Court in the impugned judgment. Briefly stated they are to the effect that Mst. Rafia Begum, the mother of appellant No,4, saw the deceased urinating in front of her at a place and in a manner which was highly objectionable. She protested in a normal manner which led to an exchange of abuses and a quarrel between them. It all further resulted in the deceased Javed Iqbal's giving beating to her. This, as the learned author Judge of the impugned judgment, put it attracted the accused; who, joined the fight where Javed Iqbal deceased suffered several injuries including two incised wounds, one of which was insignificant; the other on the chest caused his death. This was attributed to Muhammad Iqbal appellant. The other appellants were attributed Soti blows, both to Javed Iqbal and his brother Pervaiz Iqbal, the injured P.W. The trial Court found all of them guilty of murder and simple hurt under sections 302 and 323, respectively, and applied section 34, P.P.C. To all of them with respect to both the offences. The High Court maintained these convictions but reduced the sentence of Iqbal appellant to life imprisonment.
6. ' Learned counsel has argued that section 34, P.P.C. Is not attracted. What happened at the spot, it must have been a sudden affair. There was hardly any time for the accused to develop a common intention and/ot to act in furtherance thereof.
7. There are no such positive indications in the evidence to show while they were running towards the place of occurrence, they were prevented from developing a common intention and if that is so, there is nothing in the occurrence itself which would show that they did not act in furtherance thereof. His argument has, therefore, no force, but the matter would not end here.
8. ' In our view, section 34, P.P.C. Would, otherwise, not be attracted in the circumstances of the case. It can be examined from three angles at one and the same time.
9. One, the deceased had beaten the mother of the accused, they could act in exercise of her right of private defence (it would only be deemed to have been exceeded) by application of Exception 2 to section 300, P.P.C. The case would fall in this context under section 304, Part I, P.P.C. And not under section 302, P.P.C.
10. Similarly, the mother of the accused if she was being manhandled, this would give the accused a cause for grave and sudden provocation and thus by application of Exception 1 to section 300, P.P.C., the case would again fall under section 304, Part I, P.P.C.
11. Be that as it may, in our view, it was an apt case for application of Exception 4 to section 300, P.P.C.
12. The appellants, it seems, came running from a short distance on seeing their mother being beaten by the deceased. And while Pervaiz Iqbal P.W. From the side of the 'deceased joined the brawl, the accused from the women side did the same. It was a sudden fight without premeditation. It emerged out of sudden quarrel resulting into a sudden fight. None took any serious advantage of the other side's weakness. Muhammad Iqbal gave one serious injury to Javed Iqbal while the others used only Sotis. Thus, the act of the accused was not cruel either. All the conditions of Exception 4 having been satisfied, it was a fit case for conviction under' section 304, Part I, P.P.C. The rule laid down in the judgment of this Court in the case of Syed All Bepari v. Nibaran Mollah and others (PLD 1%2 SC 502) would be fully attracted and that being so, each appellant would be responsible for his own act and section 34, P.P.C. In this context, would not be applicable.
13. ' Accordingly, while altering the sentence of Muhammad Iqbal from sections 302 to 304, Part I, P.P.C., we maintain the sentence of life imprisonment and other sentences awarded to him originally under section 302, P.P.C.; but now ordered under section 304, Part I, P.P.C. As already held, thus section 34, P.P.C. Is not attracted. Therefore, Muhammad Iqbal is acquitted of the charge under section 323 read with 34, P.P.C. Similarly, the other three accused, Muhammad Aslam, Karam Dad and Dost Muhammad, are acquitted of the charge under section 302, P.P.C. Read with section 34, P.P.C. But their conviction under section 323, P.P.C. Without the application of section 34, P.P.C., is maintained. They have already served the said sentence under section 323, P.P.C.
14. ' Accordingly, while partly accepting this appeal, it is directed that Muhammad lqbal will serve his sentence now under section 304, Part I, P.P.C. As above directed. The remaining appellants, Muhammad Aslam, Karam Dad and Dost Muhammad, having been acquitted for charge under section 302 read with 34, P.P.C. And having already served the sentence under section 323, P.P.C., shall be released forthwith if not required to be detained in any other matter.