1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This direct appeal in a case of murder is brought against the judgment of the Peshawar High Court; whereby while setting aside the appellant's conviction under section 326, P.P.C., he was convicted instead under section 302, P.P.C. And was awarded sentence of life imprisonment together with award of fine and compensation.
2. ' The acquittal of the father of the appellant; namely, Said Muhammad, who was also tried with him, by the trial Court was however, maintained. The accused/convict has challenged his conviction under section 302, P.P.C. Through this direct appeal.
3. ' The prosecution case as noticed in the impugned judgment is that on 18-12-1980 when Sarwar Khan P.W.10 was taking tea in the hotel of one Ikhtiar, the deceased Abdul Wahhab also came there with a loaf of bread in his hand. He after obtaining milk from the hotel went outside. Sarwar Khan also followed him a little later and saw that Irshad Muhammad appellant was grappling with the deceased who had already received some injuries. The witness put Abdul Wahhab, who was then in injured condition, in a pick up and took him to the hospital. There an A.S.I. Recorded the statement of the injured which has subsequently been relied upon as dying declaration as well as F.I.R. In the case. It is Exh. P.A./1. In the meanwhile the appellant had also arrived at the hospital and he was found by the A.S.-I. In an injured condition. He also recorded his statement and a case was got registered for offence under section 324, P.P.C. The F.I.R. In this counter-case is Exh. D.A.
4. The motive in this case in based on some minor altercation between the deceased and the appellant which had taken place some time prior to the occurrence. There was, however, no serious enmity between the parties. The evidence in this case in which the occurrence is admitted by the accused side is usual type. There is an eye witness; dying declaration; normal investigatory recoveries; there is motive but not strong one for committing a planned murder; the injuries on the accused showing his participation in the occurrence; his admission in the counter F.I.R. Of his participation.
5. ' The learned trial Court after balancing both the versions acquitted Said Muhammad, the father of the appellant, as he had not been attributed any active role in the actual murder, and, convicted the appellant under section 326, P.P.C. Land sentenced him to 5 years' R.I. And fine. The appellant did not challenge his conviction and sentence under section 326, P.P.C. But on the other hand the State through Advocate-General challenged the acquittal by the trial Court of the appellant and father, under section 302, P.P.C. The High Court, as stated above, while maintaining the acquittal of Said Muhammad found the appellant guilty under section 302, P.P.C., with sentence as noted above.
6. ' Learned counsel for the appellant has vehemently argued that it was a case of complete right of private defence because, as he argued, the deceased had attacked the appellant with a Chhuri and although he snatched the same from him, the apprehension from the deceased to the life of the appellant continued. Therefore, under the compulsion of assault and attack from the deceased's side the appellant had the right to cause the death of the deceased; notwithstanding the somewhat greater number of injuries than was absolutely necessary in case the appellant's version of snatching the Chhuri from the deceased is accepted as correct. In the alternative the learned counsel contended that at best it would be a case of exceeding the right of private defence and the appellant, accordingly, should have been convicted under section 304, Part I, P.P.C.
7. ' We have gone through the ocular evidence, dying declaration and the other material brought on record against the appellant. The controversy now is narrowed down to a simple proposition; namely, whether the appellant acted in complete right of private defence or he exceeded the right of private defence his participation in the occurrence and having caused injuries to the deceased not having been disputed.The High Court in the impugned judgment dealt with this question as follows:- "As regards the injuries on the person of lrshad Muhammad accused/respondent No,1 suffice it to say that the defence utterly failed to bring on record the nature of the injuries sustained by accused/respondent No,1 presumably because the injuries on his person were superficial in nature and could not be considered as sufficient in the ordinary course of nature to extend to him the benefit of right of self-defence. The learned trial Judge too did not extend to him the benefit of private defence."
8. ' After some discussion on the question; as to what was the nature of injuries found on the appellant the learned Advocate-General conceded that they must be such which compelled the A.S.-I. To register a case under section 324, P.P.C. At his (Appellant's) interest. This concession is fully justified as from the Karwai Police on the F.I.R. Lodged by Irshad Muhammad appellant. The injuries found by the A.S.-I. On his person are also noticed. It was no doubt the duty of the prosecution to place on record the medical evidence regarding injuries on the accused's person. But the same was also the duty of the accused. This failure, however, in the particular circumstances of this case as discussed above cannot deter the Court from coming to a correct conclusion as to what might have happened. See Syed Ali Bepari v. Nibaran Mollah (PLD 1962 SC 502).
9. According to eye-witness account in the statement of P.W.10 when he saw the accused and the deceased for the first time they were grappling with each other. Whether it was one knife with one of them only or they had both a knife each, it appears that on a sudden quarrel relating to some previous trivial matter both of them indulged in, fight with each other and it was not pre-planned.
10. Both caused injuries to each other and the nature of the injuries of the deceased do not show that they were' the result of any unusual or cruel act on the part of the appellant. He himself was receiving similar injuries if not of same gravity. It was, therefore, a case of a sudden fight which appropriately fell within Exception 4 to section 300, P.P.C. And the conviction should have been under section 304, Part I, P.P.C. Accordingly, while acquitting the appellant of the charge under section 302, P.P.C. His conviction is altered into one under section 304, Part I, P.P.C. He is sentenced to 10 years' R.I. The fine and compensation as already awarded is maintained.