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Petitioner: KHUSHI MUHAMMAD VS Respondent: MUHAMMAD JAMIL
1988 S C M R 659
1988 S C M R 659
Present: Aslam Riaz Hussain, Muhammad Afzal Zullah and Javid Iqbal, JJ
KHUSHI MUHAMMAD‑‑Petitioner
versus
MUHAMMAD JAMIL and 2 others‑‑Respondents
Criminal Petition for Leave to Appeals Nos. 216 and 305 of 1987, decided on 20th February, 1988.
(On appeals from the Judgment dated 22‑6‑1987 of the Lahore High Court, Lahore, passed in Murder Reference No. 29 of 1984 and Criminal Appeal No. 121 of 1984).
(a) Penal Code (XLV of 1860)‑‑
‑‑‑‑Ss.304, Part I, 324 & 300, Exception 4‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal granted to examine question whether High Court committed serious errors resulting in miscarriage of justice when it assumed that Exception 4 to S.300, Penal Code, was applicable in case while there was no material on record to support assumption that there was a 'fight' amongst parties which was an absolutely essential condition for applicability of Exception 4 to 5.300, Penal Code, and that even if Exception 4 was applicable, accused could not have been given benefit of conviction under S.324, Penal Code, only, whereas his offence in that case would have been under S.308, Penal Code.
(b) Penal Code (XLV of 1860)‑
‑‑‑Ss.304, Part I, 324 & 300, Exception 4‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal granted to examine question whether there was misreading and or non‑consideration of evidence by High Court on material point, resulting in miscarriage of justice .
(c) Penal Code (XLV of 1860)‑‑
‑‑‑Ss.304, Part I, 324 & 300 Exception 4‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal granted to examine question whether in case it was ultimately found that except for one, all other conditions of Exception 4 to S.300, Penal Code, were satisfied, accused could be granted any benefit on that account.
Raja Muhammad Anwar, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner (in Criminal Petition No.216 of 1987).
Muhammad Akhtar, Assistant Advocate‑General, Punjab and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for the State.
Nemo for Respondents Nos.1 and 2.
Muhammad Akhtar, Assistant Advocate‑General, Punjab and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 305 of 1987).
Nemo for Respondents.
Date of hearing: 20th February, 1988.
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.