KHUSHI MUHAMMAD Versus MUHAMMAD JAMIL
This matter arises from a petition for leave to appeal filed by the complainant side and the State against the judgment of the Lahore High Court, which partly allowed the respondents' appeal by setting aside their convictions under sections 302 and 307 of the Pakistan Penal Code 1860 and instead convicting them under sections 304-I and 324 of the Pakistan Penal Code 1860 with reduced sentences, based on the applicability of Exception 4 to section 300 of the Pakistan Penal Code 1860. The core legal questions involve whether the High Court committed serious errors resulting in a miscarriage of justice by applying Exception 4 to section 300 of the Pakistan Penal Code 1860 in the absence of a "fight," whether there was misreading of evidence, and whether the benefit of Exception 4 could be partially applied. The Supreme Court granted leave to appeal to examine these questions, holding that arguable points of law regarding the correct application of Exception 4 and appreciation of evidence warranted a full hearing, while issuing orders regarding the custody and bailable warrants of the respondents.
- Whether the absence of a "fight" precludes the application of Exception 4 to Section 300 of the Pakistan Penal Code 1860?
- Whether the High Court committed misreading and non-consideration of evidence resulting in a miscarriage of justice?
- Whether an accused can be granted the benefit of Exception 4 to Section 300 of the Pakistan Penal Code 1860 when only some of its conditions are satisfied?
- Section 302, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 304-I, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 300, Pakistan Penal Code 1860
- Section 299, Pakistan Penal Code 1860
- Section 308, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
ORDER
MUHAMMAD AFZAL ZULLAH, J. ‑‑Leave to appeal has been sought in a murder case by the complainant side and the State, from Judgment, dated 22‑6‑1987 of the Lahore High Court, whereby the appeal of Muhammad Jamil and Muhammad Khalil respondents accused/ convicts was partly allowed. Their conviction under sections 302 and 307, P.P.C. was set aside and they were convicted under sections 304‑1 and 324, P.P. C. respectively, with reduction of sentences accordingly.
2. On account of business rivalry between the parties, the said respondents allegedly attacked the deceased with daggers. The prosecution case as summed up in the petitions for leave to appeal, is as follows:‑
"On the day of occurrence, Muhammad Jamil respondent abused Muhammad Saleem deceased, when he was passing in front of their shop; while on way to his sheet‑meats stall. Muhammad Saleem complained to Abdul Majid (uncle of Muhammad Jamil). In the meantime, Muhammad Jamil and Muhammad Khalil respondents rail to their houses and returned with daggers. Muhammad Jamil gave a dagger blow on the right side of back of Muhammad Saleem. Muhammad Khalil gave a dagger blow on the right side of back of Nur Muhammad P.W. Both of them fell down. Manzur Hussain P.W.8, who used to grease rickshaws in the same bazar and the given up P. W. Abdur Rehman, Rehriwala, had reached the spot on hearing noise of the complainant and had witnessed the occurrence. On their intervention, the accused ran away. The injured were removed to hospital. Muhammad Saleem died on reaching the hospital. Nur Muhammad P.W. was medically examined and was admitted to hospital."
3. The defence plea was of denial.
4. The learned trial Judge, relying on the testimony of eye‑witnesses including an injured one and the recovery of crime weapons, convicted: Jamil under section 302 P.P.C. and awarded him death sentence and a fine of Rs.5,000, Khalil was convicted under, section 307, P.P.C. and was awarded seven years R.I. and fine of Rs.2,000.
5. The learned Judges of the Division Bench hearing their appeal in the High Court, disbelieved the recovery evidence regarding the crime weapons. They relied or, the evidence of the eye‑witnesses in order to hold that Jamil and Khalil did cause injuries to Muhammad Saleem deceased and Nur Muhammad P.W. respectively. But on the assumption that Exception 4 to section 300, P.P.C. was applicable (wrongly mentioned as section 299, P.P.C. in the impugned judgment), it was held that while Jamil was guilty under section 304‑I, P.P. C. Khalil committed the offence under section 324, P.P.C. The sentences were also reduced accordingly.
6. After hearing both the learned counsel, we consider it a fit case for grant of leave to appeal to examine amongst others the following questions:‑
(1) Whether the High Court, with respect, committed serious errors resulting in miscarriage of justice, the arguments being:‑
(a) that there was no material on record to support the assumption that there was a "fight" amongst the parties‑‑an absolutely' essential condition for application of Exception 4 to section A 300, P.P.C.; and
(b) that even if Exception 4 was applicable, Khalil respondent could not have been given the benefit of conviction under section 324, P.P.C. only. His offence in that case would have been under section 308 , P . P. C .
(2) Whether there was misreading and or non‑consideration of evidence by the High Court on material points, resulting in miscarriage of justice; and
(3) Whether, in case it is ultimately found that except for one, all other conditions of Exception 4 to section 300, P.P.C. were satisfied, the accused/convicts could be granted any benefit, on account thereof. .
7. Leave to appeal accordingly is granted. Jamil, respondent, it is stated, is still serving his sentence wherein benefit of section 382‑B, Cr.P.C. has been allowed to him by the High Court. It is directed that on the expiry of his sentence as already awarded, he will not be released during the pendency of this matter without the order of this Court. Khalil respondent, it is stated, has been released from Jail. Bailable warrants of arrest in the sum of Rs.25,000 with two sureties of equal amount, shall issue against him for appearance in this Court. It is returnable to A. C. Sargodha.
8. The appeal to be made ready for early hearing.
M.Y.H./K‑41/S Leave granted.