SAJJAD AHMED SIPRA, J.--- The present appeal is directed against the judgment, dated 17-9-1988, whereby the learned Additional Sessions Judge V. Rahimyar Khan convicted the appellants and sentenced them as follows:--
(i) Mushtaq Ahmed son of Gohar All. Appellant No.1 to imprisonment for life under section 304(1), P.P.C. And a fine of Rs.10,000, or in default to further R.I. For a period of 2 years. The fine, if recovered was to be paid ac compensation to the heirs of the deceased and the injured and to 7 years' R.I.
Each under section 308, P.P.C (for three counts). And three months' R.I. Under section 447, P.P.C.
(ii) Abdul Razzaq son of Gohar All. Appellant No.2 to 7 years' R.I. Each under section 308. P.P.C. (for three counts) and 3 months' R.I. Tinder section 447. P.P.C.
2. The State has also filed an appeal against their acquittal from the charge under section 302.
P.P.C.
3. The appellants had assailed their conviction and sentence vide Criminal Appeal No.74 of 1988/BVl'P, whereas the State had filed Criminal Appeal No.22 of 1959/ B1\'P, against the said impugned Judgment contending for conviction of the respondents/appellants under section 302.
P.P.C. Instead of under section 304. Part I. P.P.C. And for enhancing of the sentences awarded to the appellants accordingly. The State appeal was admitted to regular hearing and notices issued therein. Vide order, dated 27-11-1990. Further directing that the Criminal Appeal No.74 of 1988/BWP shall be heard alongwith the State appeal. Therefore, the present judgment shall dispose of both the criminal appeals stated above.
4. The brief facts of the case are that complainant. Muhammad Shaft was resident of Chak No.50/P of Police Station Saddar, Rahimyar Khan, and was the owner of one square of agricultural land in that Chak. Muhammad Shafi complainant resided alongwith his family in his house situated in Killa No.1 of his agricultural land. The appellants, Mushtaq and Ra77aq sons of Gohar Ali residents of the same Chak had 40/50 goats and they often grazed these goats on the agricultural land of the complainant. The appellants prior to this occurrence had damaged the crops of the complainant by grazing goats and the complainant had several times asked the appellants not .To bring their goats on his land but all in vain.
5. On 2-8-1984 at about `Zuhar Vela' the complainant after offering his Zohar prayer went to his land and saw the appellants grazing their goats in Acre No.10 owned by the complainant and hence damaging cotton crops. The complainant admonished the appellants not to do so.
Whereupon the appellants abused the complainant calling him `Kanjar'. The complainant in exchange also abused them. Both the appellants flared up and threatened tire complainant that they would continue damaging the crops. The complainant called his son, whereupon his son Muhammad Ashiq and grandson Muhammad Tariq came at the spot. They encircled the goats to take them to cattle pond. The appellants who were armed with hatchets become furious and made murderous attack at the complainant party Razzaq appellant started giving hatchet blows to Muhammad Ashiq and Mushtaq appellant started causing injuries to Muhammad Tariq with hatchet. The complainant made hue and cry which attracted P.Ws. Muhammad Saddique, Muhammad Ismail and Mst. Maryam, wife of Muhammad Ashiq. The complainant tried to pacify the matter but Mushtaq appellant gave a hatchet blow directly on the head of Mst. Maryam.
Appellant Razzaq started Living hatchet blows to the complainant. The appellants threatened the P.Ws. Not to come near them otherwise they would be killed. Ashiq and Tariq after receiving injuries on their persons fell on the ground and both the appellants made good their escape. The complainant and the injured P.Ws. Were coming to police station for reporting the matter in a Tractor Trolley when Rashid Ahmed, S.I. Who was present at Adda Gulmarg City Rahimyar Khan, in connection with investigation of case F.I.R. No.159/84 under section 302, P.P.C. Met them where Muhammad Shaft recorded his statement. Exh.P.H. Which was read over to him and who thumb-- marked it in token of its correctness. The A.S.I. Sent the complaint to the police station for registration of case. Hence this F.I.R. Was registered against the appellants.
6. The appellants were charged but pleaded not guilty. The prosecution, in order to prove its case, cited 19 witnesses but produced only 14 witnesses. P.Ws. Muhammad SAN, Ataullah, Shaukat and Muhammad Ismail were given up by the prosecution as being won over while Muhammad Saddique P.W. Was given up the unnecessary.
7. Muhammad Saleem P.W.2 deposed that on 26-7-1984 he received sealed parcel containing blood-stained earth and blood-stained hatchet from Muhammad Ashraf H.C. And later on despatched them to the office of Chemical Examiner intact.
8. Dr. Mukhtar Naseem, Medical Officer, P.W.3, deposed that on 5-8-1984 he examined Mushtaq appellant son of Gohar Ali, aged 32 years, caste Arain and found 6 injuries on his persons. Injuries Nos.1, 2, 3 and 5 were kept under observation while rest of the injuries were declared simple. All injuries were caused by blunt weapon within 96 hours. He further deposed that as the patient was not willing for X-ray, the injuries kept under observation were provisionally declared as simple. He issued M.L.R. Exh.P.B. Which was in his hand bear his signature. He also prepared his injury statement, Exh.P.B./1 which also bear his signature.
On the same day, he medically examined Abdul Razzaq appellant who was produced before him by Ghulam Akbar F.C. And found 2 injuries on his person. Both the injuries were kept under observation and were caused by blunt weapon within 95 hours. He further stated that as the patient was not willing for X-ray so the injuries kept under observation were provisionally declared as simple. He issued M.L.R. Exh.P.C. Which was in his hand and bears his signatures. He also prepared injury statement of Abdul Razzaq, Exh.P.C./1 which was signed by him.
9. On 7-2-1984 and 28-2-1984 the learned A.P.P. Moved two petitions, requested for secondary evidence of Dr. Mukhtar Naseem, Medical Officer of D.H.Q. Hospital, Rahimyar Khan and Head Clerk and Record Keeper alongwith record of medical certificates Nos.17/1984, 14/1984 and 15/1984. The learned defence counsel did not object to the application which was accepted and Dr. Mukhtar Naseem and Head Clerk were ordered to be summoned alongwith record for 11-3-1987. On 11-3- 1987 Dr. Mukhtar Naseem (P.W.3) was recalled and re-examined. He stated that Dr. Khalid Mehmood had been working as Medical Officer in D.H.Q. Hospital, Rahimyar Khan alongwith him for a considerable period and he identified his handwriting and signature. He further stated that the said doctor had proceeded to U.S.A. After leaving service. He identified handwriting of the said doctor on Exh.P.G./4 which was the medical certificate of Mst. Maryam, wife of Ashiq and Exh.P.K., the injury statement of Mst. Maryam also bear notes and signatures which were identified as those of Dr. Khalid Mehmood. He further stated that Exh.P.O. Was police inquiry about fitness of the injured Mst. Maryam for making a statement, and that Exh.P.O./1 was the report of the said doctor alongwith his signature that the said -injured was not in a position to make any statement as she was unconscious and her B.P. Was 90/60 and pulse 140 p.m. He further identified the signature of the said doctor on medical certificate of Tariq. Exh.P.L./1 was the medical report of Tariq which he identified and verified the handwriting of Dr. Khalid Mehmood and his signature. He also identified the noting and signature of the said doctor on injury statement, Exh.P.L. He also identified noting, signatures and handwriting on medical certificate, Exh.P.M./1 pertaining to Shat and Exh.P.N./1 of Ashiq and injury statements, Exhs.P.M/P.N. Of Shafi and Ashiq respectively and lastly he stated that all the examinations were conducted by the said doctor on the evening on 2-8-1984 on being produced before him by the police of Station Saddar, Rahimyar Khan at 7-00 p.m.
10 Ghulam Mustafa (P.W.4) stated that about.2 years and one month prior he joined the police investigation and police secured blood stained earth from the place of occurrence and made the same into sealed parcel vide memo. Exh.P.D. Which was attested by him. He also stated that a constable had produced last worn clothes of the deceased, namely, Shirt P.1., Shalwar P.2. And Dopatta P.3 which were blood-stained and were taken into possession vide memo. Exh.P.C.
Attested by him.
11. Muhammad Arshad (P.W.5) stated that he identified the dead body of Mst. Maryam deceased who died at Multan at the time of her autopsy. He further stated that he joined the police investigation and Mushtaq appellant, while in custody of police,, led to the recovery of blood- stained hatchet P.4 from his residential house which was made into sealed parcel and taken into possession vide memo., Exh.P.F. He further stated that Razzaq appellant while in custody of police led to the recovery of hatchet P.5 from his residence which was taken into possession vide memo.
Exh.P.G. And had attested both the memos.
12. Muhammad SW.6) stated that he owned agricultural land in Chak No.50/P and had constructed his house in Killa No.1 of his square. Mushtaq and Razzaq appellants were the brother inter se and they also lived in the same Chak and owned 40/50 goats. He stated that the goats of the appellants used to damage his crops standing on Bana (demarcation line of the field). About 2 years and four months prior he was coming to his field after offering the prayer when he saw the goats of the appellants damaging his cotton crops. He asked both the appellants who were grazing their goats and were armed with hatchet to refrain-from damaging his crops, whereupon Razzaq accused abused him and he (complainant) also abused them. Razzaq appellant got infuriated and stated that he would continue damaging his crops. The complainant called his son, Muhammad Ashiq and grandson, Muhammad Tariq and on their arrival at the spot asked them to round up the goats of the appellants for onward despatch to cattle pond of the Government. He further stated that when goats were rounded up by his son and grandson, the appellants were enraged and abused them. When the complainant were taking the goats, appellant Razzaq made a murderous attack at Muhammad Ashiq (P.W.2) with hatchet whereas Mushtaq appellant inflicted hatchet blows upon Tariq (P.W,1), The complainant raised an alarm which attracted Siddique, Ismail and Mst. Maryam, his daughter-in-law (wife of Ashiq) at the spot who tried to intervene. The complainant stepped forward whereupon appellant Razzaq delivered 2 hatchet blows upon his right arms and right legs from its blunt side. Tariq, Ashiq and Maryam fell on the ground after sustaining the injuries. He further stated that the P.Ws. Ismail and Siddique tried to step forward but there were intimidated by the appellants. The appellants then took way their goats abusing them, alongwith their hatchets. Injured P.Ws. Were being taken in a tractor trolley to police station for reporting the matter when at Adda Gulmarg Police met him. He made the statement, Exh.P.H.
Before the police which was thumb-marked by him after its contents were read over to him. He also stated that police inspected his injury as well as the injuries on the other persons and sent them to D.H.Q. Hospital, Rahimyar Khan under escort of a constable where they were medically examined. He also stated that doctor advised-that Mst. Maryam and Ashiq injured be immediately taken to hospital at Multan and as per doctor's advice injured were taken to Multan. Mst. Maryam died near the Multan Hospital.
13. Muhammad Ashiq was P.W.7 who stated that Muhammad Shaft complainant was his father while Tariq P.W. Was his son and Mst. Maryam deceased was his wife. At about 2 years and four months ago he heard an alarm by his father from his land. He and his son Tariq were attracted to the spot and saw that goats of Mushtaq and Razzaq appellants were damaging their crops.
Muhammad Shaft, his father had told him that goats of the appellants had damaged their crops and they had abused them. He further stated that Shaft, his father asked them to round up goats of the appellants to take to the cattle pond. They were taking the said goats through Killa No.15, which was vacant when Mushtaq and Razzaq appellants who were armed with hatchets made a murderous attack upon them. Mushtaq appellant delivered hatchet blows with its front and back side upon Tariq P.W. While Razzaq appellant delivered hatchet blows with its front and back side.
Muhammad Ashiq P.W. Further deposed that he and his son fell on the ground and his father raised an alarm which attracted Ismail and Siddique. In the meantime, Mst. M4ryam came there and tried to intervene but Mushtaq appellant delivered hatchet blow with its front side upon her head.
Muhammad Shafi, the father of the witness stepped forward but was injured by Razzaq appellant with hatchet. The appellants went away forcibly taking their goats and abusing them. Muhammad Shafi, complainant arranged a tractor trolley to take the injured to Rahimyar Khan for medical treatment. At bus stand Gulmarg, the local police met them and his father made a statement before the police regarding the occurrence. He further deposed that the police took them to hospital where he was medically examined and where he was admitted in hospital while doctor advised to take him and Mst. Maryam to hospital at Multan because their condition was precarious. He and Mst. Maryam were taken to hospital, Multan where Mst. Maryam died in the hospital, Multan.
14. Muhammad Tariq was P.W.8, who corroborated the version of F.I.R. In toto and- stated that both the appellants had made murderous attack with hatchet when they were taking the goats of the appellants to cattle pond of the Government in Killa No.15. Mushtaq appellant injured him and Razzaq appellant injured his father. He further stated that upon their alarm Muhammad Siddique and Muhammad Ismail P.Ws. Were attracted, and, in the meantime, his mother Mst: Maryam also came there and alongwith his grandfather tried to intervene whereupon Mushtaq appellant delivered hatchet blow by its front side upon the head of his mother Mst. Maryam, who fell on the ground. His grandfather stepped forward but Razzaq appellant gave hatchet blow from front and back side of the hatchet on the person of his grandfather, who also fell on the ground, and the appellants went away alongwith their weapons of offence and their goats, and that he was medically examined.
15. Muhammad Ashraf was P.W.9, who stated that in August, 1984, he was posted at Police Station Saddar, Rahimyar Khan as a duty officer and on 2-8-1984 at 7-00 p.m., he received the complaint, Exh.P.H. And on the basis of the same he recorded formal F.I.R., Exh.P.H./1 without any addition or omission which was in his hand and bear his signature. He further stated that on 4-8-1984 Muhammad Saleem, Inspector gave him one sealed parcel containing blood-stained earth and on 9-8-1984 another sealed parcel containing blood-stained hatchet for safe custody in his Malkhana which he had handed over to Muhammad Saleem, F.C./129, on 26-8-1984 for onward transmission to the office of the Chemical Examiner, Lahore, and that parcel during his custody remained intact.
16. Muhammad Saleem, S.I./S.H.O., (P.W.10) had partly investigated the case and stated that on 14- 9-1984 he recorded the statement of Muhammad Saleem, F.C./129 under section 161, Cr.P.C.
17. Muhammad Saleem Inspector (P.W.11) had stated that in August, 1984, he was posted as S.H.O., Police Station Saddar, Rahimyar Khan and had partly investigated this case, and on 4-8-1984 he arrested Mushtaq and Razzaq appellants from Bus Stand Gulmarg, Rahimyar Khan. He got both the appellants medically examined on the same day after preparing their injury statement, Exh.P.B./1 and P.C./1. He further stated that on 9-8-1984 Mushtaq appellant while in custody led to the recovery of blood-stained hatchet P.4 from his residential house, which was made into sealed parcel and was taken into possession vide memo. Exh.P.F. He also prepared the site plan of the above said recovery Exh.P.F./1. He stated that on the same day i.e. 9-8-1984 appellant Razzaq led to the recovery of hatchet P.5, which was taken into possession by him vide memo. Exh.P.G. And recorded the statements of witnesses to the memos., under section 161, Cr.P.C.
18. Dr. Riaz-ud-Din, Senior Medical Officer (P.W.12) had stated that he was posted in Civil Hospital, Multan, when on 3-8-1984 at about 4-30 p.m., he conducted post-mortem examination of Mst.
Maryam, wife of Ashiq. The dead body was brought to him by Constable No.85, and it was identified by Muhammad Arshad son of Abdullah and Muhammad Shaft son of Murad Bakhsh. After post- mortem examination Dr. Riaz-ud-Din opined that death was due to shock and intercornial haemorrhage (injury to brain) with injury No.1 which was sufficient to cause death in ordinary course of nature and injury was caused with sharp-edged weapon. He further deposed that about 12 to 18 hours was the time between death and post-mortem of the deceased. Post-mortem report was Exh.P.J. Which bears his signature. Exh.PJ./1 was the diagram showing the rest of the injuries. He further deposed that Exh.P.J./4 was the previous M.L.R. Of the deceased issued by Dr. Khalid Mehmood, C.M.O., D.H.Q. Hospital, Rahimyar Khan.
19. Rashid Ahmed was P.W.13, a retired Sub-Inspector who deposed that in August, 1984, he was posted as S:I./S.H.O. At Police Station Saddar, Rahimyar Khan and on 2-8-1984 at about 6-30 p.m.
He was present at Adda Gulmarg, Rahimyar Khan alongwith other police officials, when Shari injured complainant appeared before him and made his statement. Exh.P.H. Which was recorded by him and was red over to him and thumb-marked the same in token of its correctness. He further stated that the complainant was accompanied by Mst. Maryam, Ashiq and Tariq, who were all injured. He prepared injury statement of Mst. Maryam, Exh.P.K. Who was unconscious, injury statement of Tariq, Exh.P.L., that of Shari, Exh.P.M. And that of Ashiq Exh.P.N. He sent the complaint, Exh.P.H. To police station for formal registration of case and despatched the injured to D.H.Q.
Hospital for medical examination and treatment under the escort of Ghulam Akbar, F.C. He further stated that he immediately proceeded to Hospital and recorded the statement of Tariq, Ashiq, Siddique and Ismail P.Ws. Under section 161, Cr.P.C. He made an inquiry from the M.O. As to the fitness of Mst. Maryam for making statement vide application, Exh.P.O., whereupon M.O. Replied that the patient was not in a position to give her statement vide his note, Exh.P.O./1. The next day he proceeded to the spot and inspected the place of occurrence. Secured blood-stained earth after making the same into sealed parcel vide memo. Exh.P.D. And also recorded the statement of Ghulam Mustafa and Ataullah P.Ws. The same day he received information that Mst. Maryam Bibi, who was referred to Nishtar Hospital, Multan, had expired there. On receipt of this information, he proceeded to Multan alongwith Ghulam Akbar, F.C. And prepared her injury statement, Exh.P.J./2 and inquest report, Exh.P.J./3 and deputed the aforesaid constable to get the autopsy done. He added section 302, P.P.C. Upon the death of Maryam. He further deposed that on 3-8-1984 Ghulam Akbar, F.C. Produced before him the last worn clothes of the deceased, shirt P.1, Shalwar P.2, and Dopatta P.3, which were blood-stained, taken into possession vide memo. Exh.P.E. On 18-8-1984 the Revenue Patwari produced before him the site plan Exh.PA./l and he gave note in red ink on the same which bear his signature. He also recorded the statement of Abdul Aziz and statement of Muhammad Ashraff H.C. Under section 161, Cr.P.C.
20. Bashir Ahmed, F.C./385 (P.W.14). Had deposed that he was deputed to effect service of summon marked `B' of Dr Khalid Mehmood, M.O., D.H.Q. Hospital, Rahimyar Khan and made a report marked `B/1' that Witness had proceeded to United States of America after leaving service So the service could not be effected as reported at the summon marked `B/2' and bear his signature.
21. On 25-3-1987 the learned A.P.P. Had tendered in evidence Chemical Examiner's reports Exhs.P.Q.
And P.R. And Serologist's reports, Exhs.P.S. And P.T. And closed the prosecution evidence. On 2-4- 1987 statements of appellants Mushtaq and Razzaq were recorded under section 342, Cr.P.C. In his statement Mushtaq accused/appellant stated that:-- "I alongwith my brother were passing through open field as usual with our goats without any damage to crop. We were holding hatchets for cutting branches. Shafi; Tariq and Mushtaq P.Ws.
Armed with sticks and Mst. Maryam deceased armed with Chappa, illegally impounded our goats and at our intervention attacked and injured us. Apprehending danger to life, we acted in self- defence of person and property. We were seriously injured and were produced by Ch. Muhammad Arshad on the very first day before the police. Police investigated the case dishonestly and twisted the real story in connivance with complainant party. The P.Ws. Are interested and have deposed falsely. Ashiq P.W. Is married with the cousin of Arshad P.W. I produce Nikahnama Exh.D.E., F.I.R., Exh.D.F. And copy of complaint, Exh.D.4."
While Abdul Razzaq accused in his statement deposed that:-- "I alongwith my brother were passing through open field as usual with our goats without any damage to crop. We were holding hatchets for cutting branches. Shaft, Tariq and Ashiq P.Ws.
Armed with sticks and Mst. Maryam deceased armed with Chappa illegally impounded our goats and at our intervention attacked and injured us. Apprehending danger to life, we acted in self- defence of person and property. We were seriously injured and were produced by Ch. Muhammad Arshad on the very first day before the police. Police investigated the case dishonestly and twisted the real story in connivance with complainant party. The P.Ws. Are interested and deposed falsely.
Ashiq P.W. Is married with the cousin of Arshad P.W."
Razzaq appellant was questioned as to whether he will produce any defence evidence or not to which he replied in negative while Mushtaq appellant stated that he will produce defence evidence. On 4-5-1987 Muhammad Arshad appeared as D.W.1, who stated that about 2-3/4 years ago at about Aser Vela he was present in his house and appellants Mushtaq and Razzaq came to him in an injured condition and stated that they were taking their goats through a vacant land, when Shari etc. Rounded up the goats and upon their attempt to get their goats released, Shari etc. Injured them. He further deposed that Razzaq and Mushtaq appellant had told him that they had also injured Shari etc. In their defence. The witness further stated that he had accompanied the appellant to the police station and produced them before Saleem Warraich, S.H.O., the same day in the evening and narrated whole episode to Thanidar, who had promised to proceed according to law. Mushtaq appellant had closed his defence evidence thereafter.
22. We have heard the learned counsel for the appellants and the State and perused the record with their assistance.
23. The learned counsel for the convicts/appellants submitted that there was material discrepancy as to in what Killa number the goats were grazing and thus damaging the cotton crop, and that, according to the provisions of section. 10 of the Cattle Trespass Act, 1871, the animal in question can be impounded if found both trespassing and damaging and not otherwise. Since it was not so, therefore, an attempt by the complainant party to seize the goats in question amounted to illegal seizure and the appellants had the right of self-defence, and that it was in the exercise of the said legal right that the injuries were caused to the complainant party by the appellants. Further submitted that, at best, the appellants had injured the complainant party as a result of sudden fight and without there being any enmity between the parties. Further submitted that while causing hurt in exercise of right of self-defence the blows cannot be weighed in golden scales as repeatedly held by the Superior Courts. And that as only one grievous injury had been caused to the deceased, Mst. Maryam, therefore, under such mitigating circumstances, while upholding the conviction of the appellants under section 304, Part I, P.P.C. The sentences awarded to them deserve to be reduced. In this respect, he pointed out, that the convicts/appellants had also suffered injuries. Further submitted, in the' alternative, that the impugned judgment is neither perverse nor illogical, therefore, no interference with the same was called for as has been sought for on behalf of the State in the connected criminal appeal.
24. However, as pointed out, on behalf of the State the submissions made by the learned counsel for the convicts/appellants are not supported by the evidence on the record. For, it has been clearly stated in the complaint, Exh.P.H./1 that the goats were being grazed by the said appellants in the fields owned by the complainant, and that the goats had damaged the crop. Therefore, to argue that the appellants can take refuge behind the provisions of section 10 of the Cattle Trespass Act, 1871, is untenable. In this respect, it was further contended that the injuries caused to the said appellants were simple in nature, and that there is no evidence to support their plea of self-- defence on the record a.' a neither any weapons of any nature were recovered from the complainant party nor from the spot. It was further submitted on behalf of the State that the deceased was a woman, and that the appellants had caused her death by launching a murderous attack on her while armed with hatchets. Further submitted, that the injury was caused with such severe blow that there can be no doubt about the fact that there was intention to kill her. Therefore, it was argued that the appellants arc liable under section 302, P.P.C. And not under section 304, Part I, P.P.C. And also there were no mitigating circumstances for lesser sentence.
25. We have given our anxious consideration to the submissions made in support of both the criminal appeals by the respective parties. We are constrained to point out that the occurrence stands admitted by the convicts/appellants, and that there is no denial of the hatchets having been made use of while causing the injuries; and that in addition to causing the death of the deceased Mst. Maryam, grievous injuries had been caused to the P.Ws., namely, Mushtaq, Muhammad Shari and Muhammad Tariq. Furthermore, the occurrence is admitted to have taken place in the land of the complainant thus establishing the trespass by the convicts/appellants.
There is unimpeachable evidence on the record to further establish that the appellants' goats had damaged the cotton crop in the land owned by the complainant. Hence, the complainant party was within their right to round up the goats for taking to the cattle pond and in the circumstances attack made by the appellants to avoid impounding of the goats was aggression, and the learned trial Court rightly held that they did not have right of private defence of person or property. But the learned trial Court fell in error of fact and law both in holding that the offence committed was under section 304, Part I and not under section 302, P.P.C., observing that it was a sudden fight without premeditation and the accused had not taken any undue advantage. The learned trial Court missed to note that the appellants were hardly injured which means that the complainant party was unarmed, whereas the appellants had used hatchets against them so effectively that they had injured four persons including the deceased, causing them 13 injuries which included 3 grievous hurt suffered by Tariq and Ashiq P.Ws. And one fatal and extensive injury with hatchet was caused on the head of the deceased. Therefore, the appellants certainly took undue advantage and also acted in a cruel and unusual manner. Thus, the case falls out of the exception IV to section 300, P.P.C. The benefit of which the trial Court seems to have extended to them. We are, therefore, of the considered view that the offences committed by the appellants clearly fall within the provisions of section 302, P.P.C. For having caused the death of Mst. Maryam, and under the provisions of section 307, P.P.C. For having caused C grievous injuries to the P.Ws. However, taking into consideration the attending circumstances of the present case we feel that the sentences awarded to the convicts/ appellants do not call for extreme penalty of death. While converting their conviction from section 304. Part I. P.P.C. To section 302; P.P.C. And from section 308, P.P.C. To section 307, P.P.C. By allowing the State appeal, we maintain the sentences ordered by the learned trial Court. The appellants shall get the benefit of the provisions of section 382-B, Cr.P.C.
26. Therefore, in pursuance to the above discussion, Criminal Appeal No-74 of 1988/BWP fled by the convicts/appellants is hereby dismissed, whereas the Criminal Appeal No.22 of 1989/BWP filed by the State is hereby allowed in accordance with the terms stated above.
N.H.Q./M-478/L