ABDUL SHAKOOR vs MUHAMMAD MUSTAQEEM alias BOGA and anothers

' SALEEM AKHTAR, J.--This appeal with the leave of the Court calls in question the judgment of the Lahore High Court dated 13-7-1991 whereby the learned Judges convicted respondent No,1 under section 304, Part I, P.P.C., and sentenced him to 14 years' R.I. And fine of Rs,20,000 or in default two years' R.I. With benefit of section 382-B, Cr.P.C.

2. The appellant being the complainant filed petition for leave to appeal which was heard and was orally dismissed, but while writing the order it was found that the High Court's judgment suffered from a patent error apparent on the face of the record, which was not pointed out by the learned counsel for the petitioner, and therefore, it was reheard after notice and leave was granted to consider the question whether offence under section 304, Part I, P.P.C., is punishable with imprisonment for life or imprisonment of either description for a terms which may extend to 10 years and not 14 years.

3. The brief facts are that Muhammad Ashraf deceased, nephew of the appellant was working as a labourer in the ice factory of Muhammad Yasin. Muhammad Yasin owned several shops near his ice factory, one of which was rented out to Muhammad Mustaqeem respondent No,1 as a tenant. In front of the ice factory and the shop there existed a drain through which the water discharged from the factory passed. On 5-2-1987 at about 8-30 a.m. Muhammad Ashraf was cleaning the drain in front of the ice factory when respondent No,1 asked him to clean the drain in front of his-shop as well, which he refused. On this, quarrel started between them and both of them grappled and exchanged blows. Abdul Shakoor, Noor Muhammad, Abdul Razzaq and Muhammad Jameel came and separated them. The respondent went to his shop and after a few minutes came out armed with a dagger and attacked Muhammad Ashraf. He gave one blow which landed on the chest of Muhammad Ashraf who fell down. The respondent escaped with his weapon. The aforesaid persons witnessed the incident. Muhammad Ashraf was removed to the hospital in injured condition where he was declared dead. The learned trial Court sentenced' the respondent to death and fine of Rs,20,000 or in default to suffer two years' R.I. However, the learned Judges after examining the evidence concluded as follows:-- "It may be noted that the occurrence took place at 8-30 a.m. While it was reported to the police station at a distance of about two furlongs at 9-10 a.m. On the same day. Thus, the report was lodged promptly. This would demonstrate beyond doubt that the prosecution witnesses were present at the spot and that they witnessed the occurrence. Even otherwise, the occurrence has clearly been admitted by the appellant although by giving a different version of his own. It is a case of two v.Ersions. The question arises as to which one out of the two versions is true. The admitted position is that there was no previous enmity existing between the parties. Both the parties were neighbour inter se. The appellant was a tenant under Muhammad Yaseen and the deceased was working as a labourer in his Ice factory. In other words, the quarrel took place between an employee and a tenant of Muhammad Yaseen over the question of clearing a common drain in front of the Ice Factory of Muhammad Yaseen and the shop of the appellant. In our view, both the parties 'did not give the correct immediate cause of the incident. The possibility of a sudden quarrel having taken place between the parties over the question of cleaning the drain thus cannot be excluded. The appellant might have asked him to clean the drain in front of his shop as well considering him to be of a higher social status. The appellant did not lead any evidence in support of his plea of self-defence. Even otherwise, there exists no such circumstances to hold that the appellant was entitled to exercise his right of self-defence in this case. We, therefore, do 'not believe his version. His plea of self-defence does not fit in the circumstances of the case and as such it is discarded. The incident appears to have taken place at spur of moment without any premeditation on part of the appellant. This is a case of single injury having been inflicted by, the appellant upon the deceased with a Khangar. He did not repeat the injury although he was definitely in a position to do so. In our view, the case of the appellant falls under section 304, Part I, P.P.C. In consequence, the death sentence awarded to the appellant under section 302, P.P.C., is set aside being not sustainable under the law. The Murder Reference is answered in the negative. The appellant, is, however, convicted under section 304, Part I and is sentenced to 14 years' R.I. The sentence of fine imposed by learned trial Court is, however, maintained. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant."

From a perusal of the conclusion drawn by the learned Judges the question was whether the case fell under Part I or Part II of section 304, P.P.C. It is clear that the act, which caused death, was not done with the intention of causing death or causing such bodily injury as was likely to cause death, therefore, first part of section 304, P.P.C. Will not be attracted. As there was no intention to cause death or cause such bodily injury as was likely to cause death, the case will be covered by Part II of section 304, P.P.C., which provides for imprisonment of either description for a term which may extend to 10 years or with fine or with both. In the circumstances, we convict and sentence Muhammad Mustaqeem respondent under section 304, Part II, P.P.C. For 10 years' R.I. The respondent shall also pay a compensation of Rs,40,000 to the heirs of the deceased, to be recovered as arrears of land revenue or in default he will suffer imprisonment for 6 months. Fine of Rs,10,000 is also imposed on him in default of payment of which he will suffer one year R.I. However, benefit of section 382-B, Cr.P.C. Is extended to the respondent. The appeal stands disposed of in these terms.