KHALIL AHMAD vs JAMIL AHMAD AND 2 Other
This petition for leave to appeal arose from a judgment of the High Court which altered the respondents' conviction from Section 302/34 of the Pakistan Penal Code 1860 to Section 304 Part II/34 of the same Code, reducing their sentences from transportation for life to three years' rigorous imprisonment. The prosecution alleged that the respondents launched a pre-planned attack on the deceased and his companions, causing fatal head injuries. However, the High Court appraised the evidence and concluded that the incident was a sudden affair arising from an altercation in the bazaar, during which both parties sustained injuries. Applying Exception 4 to Section 300 of the Pakistan Penal Code 1860, the High Court determined that the respondents did not take undue advantage or act in a cruel or unusual manner during the sudden fight. The Supreme Court, reviewing these findings, declined to interfere with the High Court's assessment of the facts and application of the law, thereby upholding the alteration of the conviction and sentence.
- Whether a sudden altercation in a public street resulting in mutual injuries attracts Exception 4 to Section 300 of the Pakistan Penal Code 1860?
- Can a conviction under Section 302 of the Pakistan Penal Code 1860 be altered to Section 304 Part II if the accused did not take undue advantage or act in a cruel or unusual manner during a sudden fight?
- Does the presence of injuries on the person of the accused support the plea of a sudden melee or mutual fight for the purpose of mitigating a murder charge?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 323, Pakistan Penal Code 1860
- Section 304 Part II, Pakistan Penal Code 1860
- Exception 4 to Section 300, Pakistan Penal Code 1860
ORDER
1. WAHIDUDDIN AHMAD, J.-Respondents Jamil Ahmad and Muhammad Rafi were convicted by the learned Sessions Judge, Jhelum, by judgment dated the 28th April 1969, under section 302/34, P. P.
2. C. For the murder of Muhammad Yasin and under section 323/34, P. P. C. For causing injuries to the petitioner and Muhammad Idris P. W.
8. They were sentenced to transportation for life and were further sentenced to undergo one year's rigorous imprisonment each on the other count. On appeal, the High Court, by order dated the 5th March 1970, upheld the conviction under section 323/34, P. P. C. For causing injuries to the petitioner and Muhammad Idris but acquitted the respondents of the charge. Under section 302/34, P. P. C. And altered the sentence to section 304/34, Part II, P. P. C. And reduced their sentence to three years' rigorous imprisonment. The petitioner seeks permission to file an appeal against the said judgment.
3. The prosecution case is that on the 10th April 1968, at peshiwela, Muhammad Yasin deceased, along with his son P. W. 8 Muhammad Idris, I1: W. 9 Muhammad Siddiq and the petitioner, who was the sister's son of the deceased came out of Masjid Muhajrin after saying their prayer there.
4. Muhammad Yasin was going a bit forward from others. They reached the Chowk Shah--ra-e-am of the village and the respondents were found there. Jamil Ahmad was armed with an iron shod lathi and he opened the attack on Muhammad Yasin with it and caused him an injury on the head.
5. Muhammad Rafi respondent threw stone which hit Muhammad Yasin on his head. Muhammad Yasin deceased, on receiv--ing the" two blows; dropped down on the ground unconscious. Jamil Ahmad respondent tried to give second blow to Muhammad Yasin but it hit Khalil Ahmad petitioner on his right hand as he intervened to save the deceased. Muhammad Idris P. W. 8 stepped forward to save his father and hurled a stone which hit Jamil Ahmad on his forehead. Muhammad Rafi threw another stone which caused injury to Muhammad Idris on his collar bone. Muhammad Rafi respondent came out of vacant site and he was given a push by the petitioner as a result of which he fell on the wall and the stones in the corner of the vacant site. He thus received injuries on the nose and some of his ribs were also broken. Alarm was raised which attracted several persons on the spot. The respondents ran away. Muhammad Yasin was put on a cot and taken to Jalalpur dispensary. After securing a medical certificate, the Petitioner lodged the First Information Report at 6-00 p.m. On the same day at Police Station, Jalalpur, which is at a distance of five miles from the place of occurrence. No counter report of this incident was given but Jamil Ahmad and.
6. Muhammad Rafi respondents were examined by Dr. Nazir Ahmad. Muhammad Yasin died, at midnight at 12-05 a.m. On the 11th. April 1969, and the, respondents were challaned under section 302/ 4, P. P. C. And under section 323/34, P. P. C.
7. On the appraisal of the evidence, the High Court has come to the conclusion that they were not prepared to believe that the two respondents were sitting id ambush in front of their own shop armed with lathis and stones waiting for the complainant --party to pass so that they may be attacked. According to the High Court, the incident had been a sudden affair probably on account of certain remarks which the petitioner may have made about the eating of food by the son of the deceased at the house of Abdul Ghafoor which ceremony was arranged by the respon--dents.
8. Some altercation seems to have been the cause which took place in the bazar. In the melee, the parties have received injuries. Their passions having gone high on account of the sudden quarrel.
9. The High Court finding is that in view of the injuries on the person of the respondents it cannot be said that they took undue advantage or acted in a cruel and unusual manner in causing injuries to the deceased, and his companions. Exception 4 to section 300, P. P. C. Would, therefore, attract to the facts of the case and the High Court altered the conviction of the respondents from section 302, P. P. C. To section 304, Part II, P. P. C. And reduced their sentence to three years' rigorous imprisonment.