MUSHTAK ALI KAZI, J.-The appellants have been convicted by the IInd Additional Sessions Judge, Hyderabad for offence under section 302 read with section 34, P. P. C. And they have been sentenced to death. The convicts have accordingly preferred this appeal and there is also a reference by the Additional Sessions Judge for confirmation of the death sentence.
2. The prosecution case in brief is that complainant Allauddin along with his two sons, Abdul Jabbar and Abdul Razzaq resided in a quarter in Unit No. 11, Latifabad, Hyderabad. Accused Farooq a boy of about 18 years and his brother Siddiq a boy of about 15 years resided in the quarter along with their mother. The complainant and his sons were running a biri making Karkhana in their quarter. About 3 days prior to the incident, which occurred on 23rd August 1973 a petty quarrel had taken place between the parties. The labourers engaged by Allauddin had taken a few bricks lying in front of the house of the appellants and had put them in their "tachari". Appellants Siddiq and Farooq abused the labourers when Allauddin and his sons Abdul Jabbar and Abdul Razzaq intervened and offered to return the bricks to them. The mother of the two boys, however, continued to abuse Allauddin and others and they accordingly went into their quarter and put an end to the quarrel.
3. On the day of the alleged incident at about 6-30 p. In. Allauddin and his two sons Abdul Jabbar and Abdul Razzaq were standing outside their quarter on the road when appellants Farooq and Siddiq happened to pass by them. Appellants expressed annoyance because their mother bad been abused by them during the aforesaid quarrel. This led to an exchange of hot words between the parties. This quarrel was being witnessed by P. Ws. Mohammad Mobeen and Rustam who were preparing biris in the Karkhana situated in the quarter of Allauddin. The door of the quarter was open. Suddenly in the midst of this quarrel appellant Farooq took out a knife from his pocket and stabbed Abdul Razzaq son of Allauddin in the region of his chest as a result of which Abdul Razzaq fell down. Abdul Jabbar brother of Abdul Razzaq tried to intervene when appellant Siddiq also took out his knife and stabbed him. Appellant Farooq then caused a knife injury on the arm of Allauddin.
During this altercation, appellant Farooq was found to have sustained a danda blow on his head and he was bleeding from the wound on his skull. He had an incised injury on the palm of the left hand. There was a scratch on the neck of appellant Mohammad Siddiq. As the quarrel suddenly took a serious turn, P. Ws. Mobeen and Rustam and others came out and shouted to the parties to stop killing. Appellants thereupon ran away to their house along with the knives. Since the condition of Abdul Razzaq was found to be serious he was immediately taken to Civil Hospital, Hyderabad by Abdul Jabbar and P. W. Mohammad Mobeen. Abdul Razzaq succumbed to the injury 1-- hours after the incident. On exami--nation Abdul Razzaq was found to have sustained an incised wound 1" x --" over the right chest at the lower end of sternum 1-- away from the media plane. On, internal examination the pleura and pericardium were found full of blood. The right ventrical was found to have been cut through and through. The injury was found to be sufficient in the ordinary course of nature to cause death.
4. P. W. Abdul Jabbar was found to have sustained an incised wound 1" x 1 ", muscle deep at the back of right lumbar region. 'This 'injury was simple in nature. Complainant Allauddin had an incised wound 1" x 1--", skin deep over the left fore-arm and an abrasion over the thigh.
5. Complainant Allauddin went to Police Station, Latifabad about 15 minutes after the incident and lodged his F. I. R. With S. H. O. Mahmood Ali. The complainant was then sent for examination and certificate to the civil hospital. The S. H. O. Then went to the Civil Hospital and recorded the statement of injured Abdul Jabbar. . He also held an inquest over the head body of Abdul Razzaq. A.
S. L, Police Ghulam Mustafa was deputed to arrest the accused. He went to their quarter and apprehended the accused/appellants the same evening in presence of mashirs. Appellant Farooq volunteered to produce the knife. He led the Police party to a devi bush 15 paces from his house and took out a blood-stained knife which was secured and sealed. Appellant Siddiq also produced the blood-stained knife from another bush near his house. This was also secured and sealed. Both the appellants were then arrested. The A. S. I. Prepared mashirnama of injuries of appellants Farooq and Siddiq and he secured the blood-stained clothes, which they were still wearing on their person.
These clothes were also sealed. The blood-stained articles were later on sent to the chemical examiner, who forwarded his report that the clothes recovered from: the person of the accused and the knives produced by them were all stained with human blood. After completing the investigation S. H. O. Mahmood Ali challaned the appellants in the Court of the Extra-Joint Civil Judge and F. C. M., Hyderabad who committed the appellants for trial before the Court of Session.
6. The version of the appellants in the committal Court as well as in the Court of Session was one of bare denial. They alleged that they had been falsely implicated due to enmity.
7. Prosecution led the evidence of eye-witnesses Allauddin, his son Abdul Jabbar and neighbours Mobeen and Rustam. Rest of the witnesses who had seen the incident had been given up.
Allauddin and Abdul Jabbar are the injured, persons being father and brother of deceased Abdul Razzaq. They have supported the prosecution version narrated above in respect of both the quarrels. They have admitted that there was exchange of hot words, which led to the fight. Farooq was first to take out the knife and inflict injury on Abdul Razzaq. Allauddin then tried to intervene when Farooq inflicted a superficial injury on his arm, and Siddiq intercepted Abdul Jabbar and inflicted a knife injury on his waist. Prosecution witnesses Mohammad Mobeen and Rustam have also corroborated these injured witnesses and stated that during the exchange of hot words between the parties Farooq picked up his knife all of a sudden and stabbed Abdul Razzaq. P. W.
Mobeen has definitely stated that there was altercation between Abdul Razzaq deceased and his father Allauddin and elder brother Abdul Jabbar on the one hand and appellants Siddiq and Farooq on the other and there was exchange of abuses. P. W. Rustam has also admitted that during the exchange of harsh words Farooq inflicted knife injury on Razzaq. Father of Razzaq then moved forward towards Farooq when Farooq attacked him with the same knife. Thereupon P. W.
Jabbar tried to intervene when Siddiq inflicted knife injury on Jabbar.
8. It is thus evident that the appellants passing in front of- their house found deceased Abdul Razzaq, his brother Jabbar and their father Allauddin standing on the road. The parties were annoyed with one another on account of the previous quarrel. There was, therefore, exchange of hot words and abuses. All of a sudden appellant Farooq took out his knife and dealt only a single blow with it to deceased Abdul Razzaq. Obviously Allauddin father of deceased Abdul Razzaq moved towards Farooq in order to attack him. Possibly a danda blow was given on the head of Farooq. Farooq had then stabbed him and Jabbar; was also given a knife blow by Siddiq when Jabbar tried to intervene.
9. Thus the fight was not premeditated and the responsibility for the act of stabbing b3! Appellant Farooq cannot be shared by his brother Siddiq. Saddiq had taken his knife only after Allauddin and Jabbar had tried to intervene and attack them. Common on intention to commit murder cannot, therefore, be attributed to Siddiq, who was away from deceased Razzaq and who took no part in causing any injury to Razzaq resulting in his death. Accused Siddiq would, thus be liable for an offence under section 324, P. P. C. Only for causing simple injury to Jabbar. Even otherwise the case of Jabbar would be covered by the provisions of the Children Act. On the application of the defence counsel appellant Siddiq was referred to Civil Surgeon, Khairpur for examination regarding his age.
On receipt of the certificate the Civil Surgeon was summoned and examined in this Court as a witness. He has stated that on 17th March, 1979 Siddiq was examined and found after clinical and radiological examination to be 21 years of age. The incident had occurred on 23rd August 1973 more than 5 years ago and at the time of occurrence appellant Siddiq would be about 15 years of age. He would accordingly be a child offender within the meaning of section 3 oft the Bombay Children Act. Under the provisions of the said Act a child could not be sentenced to death or imprisonment nor could' a conviction be recorded in his case even if found guilty of a serious offence. He could, in that case, have been kept in safe custody and his' case should have been reported to Provincial Government for orders under section 26 of the said Act. However, no such action is called for' in case of appellant Siddiq as he cannot be made constructively liable for murder under section 34, P. P. C. As any such necessary inference cannot be drawn from the facts as set out above. He would at the most be liable for an offence of causing simple hurt with sharp weapon under section 324 P. P. C. But he has not been convicted for such offence in spite of their being a charge to that effect.
10. The learned counsel on behalf of the appellants has not disputed that the incident in question did occur in the course of which injuries were caused to both the parties. Regarding the liability of appellant. Farooq Mr. Akhund has pointed out that his case would fall under Exception (4) to section 300, P. P. C., as death was caused in the course of a sudden fight in the heat of passion and no undue advantage was taken. It has been admitted by the prosecution witnesses that the parties happened to meet on the road by chance and there was a verbal exchange or quarrel, which had preceded the fight. The act of stabbing was a sudden one. It is not the case of the prosecution that both the boys had come prepared to kill a member of the opposite-party.
Regarding the question of any unfair advantage, it has been rightly pointed out that the appel-- lants were young boys of 15 and 18 years while their adversaries were three grown-up men over 30 years of age Very likely they were armed as lathi blows had been sustained by appellant Farooq on his head at the instance of one of them. Possibly Farooq had been compelled to use his knife in order to avoid repetition of such blow. Only one knife in--jury had been caused by Farooq The learned counsel on behalf, of the appellants has cited a judgment of this Court in the case of Abdul Naeem v. Abdul Shakoor and another (PLD 1977 Kar. 750). It was stated in that decision that the question whether the accused had taken undue advantage or acted in a cruel manner would depend upon the facts of each case and no hard and fast rule could be laid down in that regard.
Reliance was placed on the earlier decisions reported in 1969 SCMR 653; PLD 1963 Kar. 228, PLD 1950 Lah. 17 and PLD 1960 Lah. 339. In cases of sudden fight where the accused had struck one blow at the deceased with a knife which had proved fatal the accused being comparatively a young boy, and the deceased, a strong man having better physique, it has invariably been held, that the offence would fall within Exception (4) to section 300, P. P. C. And the conviction could be recorded under section 304, Part 1, P. P. C. Only.
11. In the result the reference for confirmation of the death sentence in respect of both the appellants cannot be accepted. The conviction of appellant Siddiq for offence under section 302/34, P. P. C. Is altered to that for offence of causing simple hurt under section 324, P. P. C. Since he is a child offender and he has suffered enough hardship, he is let off with a warning, as the only sentence.
12. The conviction of appellant Farooq is altered to that for offence under section 304, Part -I, P. P. C.
Only, and instead of sentence of death, he is awarded R. I. For 7 years only. With this modification the appeal is otherwise dismissed.