' MUHAMMAD RAFIQ TARAR, J.--- This appeal by Nazar Muhammad, his brother Muhammad Nawaz and their father Muhammad Ameer with the leave of this Court is directed against the judgment of a learned Division Bench of the Lahore High Court, Multan Bench, dated 18-6-1990, whereby their Criminal Appeal No,237 of 1988 was dismissed.
2. The appellants were tried by an Additional Sessions Judge on the allegation that on 8-6-1986 at about evening time they committed the murder of Muhammad Nawaz and made murderous assault on Khizar Hayat, Mst. Rajjan Bibi and Mst. Kaneez Mai, in the area of Chak No,9-A/8R, District Khanewal, in furtherance of their common intention. Muhammad Nawaz deceased was the son of Noor Muhammad complainant. Khizar Hayat is his brother, Mst. Kaneez Mai is his sister and Mst.
Rajjan Bibi is their mother. By judgment dated 16-12-1987 all of them were convicted under section 302/34, P.P.C. For the murder of Muhammad Nawaz deceased and on two counts under section 307/34, P.P.C. For murderous assault on Khizar Hayat and Mst. Rajjan Bibi. Muhammad Nawaz appellant was further convicted under section 323, P.P.C. For causing simple hurt to Mst. Kaneez Mai. Under section 302, P.P.C. Nazar Muhammad was sentenced to death and a fine of Rs,5,000 while Muhammad Nawaz and Muhammad Ameer were awarded imprisonment for life and a fine of Rs,5,000 each. All of them were sentenced to R.I. For 5 years and fine of Rs,5,000 each on two counts for making murderous assault on Khizar Hayat and Mst. Rajjari. For causing injuries to Kaneez Mai her husband Muhammad Nawaz was sentenced to R.I. For six months. Sentences were ordered to run concurrently.
' The appellants challenged their conviction and sentence in the Lahore High Court, Multan Bench.
The death sentence of Nazar Muhammad appellant was altered to imprisonment for life and with this modification their appeal was dismissed.
3. The brief facts of the prosecution case are that 5/6 years prior to the occurrence Mst. Kaneez Mai daughter of Noor Muhammad complainant was married to Muhammad Nawaz appellant. The accused party had promised the hand of Mst. Irshad Bibi (daughter of Muhammad Ameer and sister of Muhammad Nawaz and Nazar Muhammad appellants) for Khizar Hayat P.W. Son of Noor Muhammad complainant. On 8-6-1986 at about evening time Noor Muhammad complainant, his sons Muhammad Nawaz deceased and Khizar Hayat P.W. Went to the house of Muhammad Nawaz appellant where Muhammad Ameer and Nazar Muhammad appellant were also present. They requested Muhammad Nawaz appellant to send Mst. Kaneez Mai with them so that she may celebrate the Eid with them which was falling on the next day. Muhammad Ameer appellant refused to oblige while Muhammad Nawaz appellant started beating Mst. Kaneez Mai in their presence. Noor Muhammad complainant pacified her saying that they would take her along on the Eid day (next day). On this the accused persons got enraged. The complainant and his sons came out of their house and started for their Bhehni. They had covered hardly a distance of one acre when all the three appellants of whom Nazar Muhammad was armed with a Barchhi and dthers with Sotas encircled them raising Lalkaras. Nazar Muhammad gave a Barchhi blow hitting the chest of Muhammad Nawaz as a result of which he fell down whereupon Muhammad Nawaz gave him a Sota blow on the head. Khizar Hayat P.W. Tried to intervene and all the three appellants gave him blows with their respective weapons. Mst. Rajjan got attracted to the spot and was given Sota blows by Muhammad Ameer and Muhammad Nawaz. In the meantime Haq Nawaz and Sher Muhammad also reached the spot and entreated the accused upon which they went away taking their weapons with them. Muhammad Nawaz succumbed to his injuries at the spot. Noor Muhammad complainant then went to Police Station Talamba and reported the occurrence to Muhammad Ashraf A.S.I. Vide F.I.R. Exh.PN.
4. After recording the F.I.R. Muhammad Ashraf A.S.I. Reached the spot and conducted the usual investigation. He arrested the accused persons on 11-6-1986. Muhammad Ameer and Muhammad Nawaz accused had injuries on their persons and he prepared their injury statement. On 14-6-1986 Nazar Muhammad accused led to the recovery of blood-stained Barchha P.5 which was made into a sealed parcel vide memo. Exh.PK. On the same day Muhammad Nawaz and Muhammad Ameer led to the recovery of Sotas P7 and P6 vide memos. Exhs.PM and PL respectively. After the usual investigation the accused persons were challaned.
5. On 9-6-1986 Dr. Abdul Ghaffar S.M.O., Civil Hospital, Mian Channu, conducted the autopsy on the dead body of Muhammad Nawaz deceased and found an incised penetrating wound going obliquely 2" x 1" x chest on the front and upper part of the right chest and a contused wound 1-1/2" x 1/4" on the scalp on the left side of head. In the opinion of the doctor death was due to shock and haemorrhage resulting from the first mentioned injury which was sufficient to cause death in the ordinary course of nature.
' On 8-6-1986 Dr. Muhammad Rafi, Primary Health Centre Abdul Hakim, examined Khizar Hayat P.W.
And found as many as 13 injuries on his person. Out of these four had been caused by sharp weapon and the rest with blunt weapon. Injury No,1 resulted in linear fracture of occipital bone and was declared grievous.
' On the same day the same doctor examined Mst. Rajjan wife of Noor Muhammad complainant and found five visible injuries on her person, all simple in nature caused by blunt weapon. Mst.
Kaneez Mai was also examined by the same doctor on the same day who found three bruises and a swelling on her person, all simple in nature caused by blunt weapon.
' On 11-6-1986 Dr. Tahir Kamal, Medical Officer, examined Mst. Rajjan wife of Amir accused and found a lacerated wound on the frontal region of scalp 1.5 c.m. x 1/4 c.m, x skin deep. It was simple in nature caused by blunt weapon, within the duration of 2/3 days.
6. On 12-64986 Dr. Zafar-ul-Haq examined Muhammad Nawaz accused and found two contused wounds and a number of abrasions of 3 to 4 days duration on his person, all simple in nature, caused by blunt weapon. The same doctor also examined Muhammad Amir accused and found a contused wound and a bruise and abrasion on his person, all simple in nature, caused by blunt weapon, with the duration of 3 to 4 days.
7. In support of its case the prosecution examined three eye-witnesses namely Noor Muhammad complainant, his son Khizar Hayat and his wife Mst. Rajjan. Mst. Kaneez Mai. Was examined as a Court-witness. The prosecution also relied on the evidence relating to motive and recoveries.
8. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Nazar Muhammad accused when asked why this case, made the following statement:--- "Mst. Kaneez Mai was married with my co-accused Muhammad Nawaz in exchange of Mst. Irshad Mai my sister. The marriage of Mst. Kaneez Mai had taken place with co-accused Muhammad Nawaz. There was only engagement of my sister with Khizar Hayat son of complainant. My father co-accused Muhammad Amir had refused to marry Mst. Irshad Mai with P.W. Khizar Hayat in exchange of Mst. Kaneez Mai due to which the complainant and his son were extending threats to us and were insisting us to marry Mst. Irshad with Khizar Hayat. Because of that Mst. Kaneez had left our house and had started living with her parents since a period of 5/6 months of occurrence. On the day of the occurrence I had been working in our garden and then I had joined my co-accused, I had been budding the plants in the garden. When I was present with my co-accused in our land at about Maghrib time complainant Noor Muhammad alongwith Khizar Hayat and deceased Muhammad Nawaz entered our house and forcibly brought out my sister Mst. Irshad Mai. They had started taking my sister Mst. Irshad Mai towards the Pakka road forcibly. On the cries of my sister and mother my brothers co-accused went towards the spot and they tried to save my sister Mst.
Irshad from the complainant and his son. The complainant and his son were armed with Sotas.
Deceased Muhammad Nawaz was having dagger and pistol. The complainant and his son injured my mother Mst.Rajjan and they also caused injuries to both my co-accused. In the meanwhile I reached the spot. I also tried to save my co-accused and my sister. Muhammad Nawaz deceased had brought out his pistol by that time and was going to fire at my sister Mst. Irshad Mai. In order to save my sister and the co-accused and the mother, I gave one injury to deceased Muhammad Nawaz with knife. P.Ws. Mst. Rajjan Mai, Haq Nawaz and Sher Muhammad were not there."
' Muhammad Nawaz and Muhammad Amir also adopted the above statement. They made statements on oath under section 340(2) of the Cr.P.C. In support of the above version.
9. In this case leave to appeal was granted to consider "whether the incident was not the result of a sudden fight upon a sudden quarrel which originated in the house of the complainant and spilled over into the fields outside" and whether Exception 4 of section 300, P.P.C. Was attracted to the facts of the case.
10. We have heard the learned counsel for the parties on the above aspect and examined their contentions in the light of evidence available on the record. The complainant's version is that accused persons got annoyed when he told them that he and his son had come to their house to take away Mst. Kaneez Mai so that she may celebrate Eid with them at their house on the next day.
The accused persons not only refused to send her with them but she was also beaten by her husband Muhammad Nawaz in their presence and the accused were further enraged when he (the complainant) pacified Mst. Kaneez Mai telling her that she should not worry and they would take her to their house on the Eid day. In cross-examination Noor Muhammad complainant denied having stated before the police that on the refusal of the accused his sons had exchanged hot words with them and that they (the complainant party) had tried to stop the accused from giving beating to Mst. Kaneez Mai over which they got further enraged. He was confronted with his statement before the police wherein it was so recorded.
' Khizar Hayat P.W. Stated that in their presence Muhammad Nawaz accused started beating his sister Mst. Kaneez Mai, they tried to intervene in order to save her "but the accused did not leave her. The accused then started searching weapons and apprehending danger they left their house and went outside". In cross-examination he stated that "on the refusal of the accused there was exchange of some hot words". Mst. Kancez Mai appearing as a Court-witness stated that when her father-in-law Muhammad Amir accused refused to send her with her father and brothers she requested her husband Muhammad Nawaz to allow her to accompany them but he got enraged and started beating her with a sota upon which she retaliated and threw a spoon on him with which she was cooking. She denied the suggestion that there was an exchange of hot words but was confronted with her police statement wherein it was so recorded. It is also in her statement that Mst. Irshad Mai sister of her husband was to be married in exchange with her brother Khizar Hayat. She had attained puberty and was major during the days of occurrence. Earlier her parents came to the accused for demanding the hand of Mst. Irshad Mai for Khizar Hayat but her husband refused to marry her with him. She further stated that she had sent a reply to the notice sent by her husband Muhammad Nawaz that she was prepared to live with him as his wife if the hand of his sister was given to her brother as their Nikah had already been performed.
11. From the overall analysis of evidence it can reasonably be concluded that on the refusal of the accused to send Mst. Kaneez Mai with the complainant party and on demand for the hand of Mst.
Irshad Mai for Khizar Hayat there was an exchange of hot words between the parties which resulted in a sudden quarrel when Muhammad Nawaz accused started beating Mst. Kaneez Mai in the presence of the complainant party and they tried to stop him from doing so. This was followed by a sudden fight in which both the parties caused injuries to their opponents with whatever weapon they could lay their hands on. There was no premeditation nor the parties had come prepared for the fight. Muhammad Nawaz deceased was given only one Barchhi blow and in that view of the matter no undue advantage of the situation can be said to have been taken by the accused persons. In the circumstances Exception 4 to section 300 of the P.P.C. Is clearly attracted.
' Accordingly we alter the conviction of the appellants from section 302/34, P.P.C. To section 304, Part-I/34, P.P.C. And sentence them to R.I. For 10 years and a fine of Rs,50,000 each thereunder. The entire amount of fine shall be paid to the legal heirs of the deceased as compensation. In default of payment of fine they will undergo R.I. For 2-1/2 years each. Likewise their conviction under section 307, P.P.C. Is altered to one under section 308, P.P.C. The sentences shall run concurrently as ordered by the Courts below. The appeal stands disposed of accordingly.