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Constitution of Pakistan (1973)----Art. 185(3)--Penal Code (XLV of 1860), S. 302 read with S. 300, Exceptions 1 and IV-Murder-Accused, after being pushed by deceased into a muddy nallah, standing up and firing a shot at deceased from a distance of 10-12 feet-.No fight taking place before firing of fatal shot-Held, accused could not, in circumstances, be given benefit of Exception IV or of Exception I to S. 300, Peu1 Code-Conviction and sentence under S. 302 upheld. M. Bilal, Advocate Supreme Court for Appellant. Bashirullah, Addl. A: G. (N.-W. F. P.) for the State. Date of hearing: 27th February, 1984. JUDGMENT SHAFIUR RAHMAN, J. This is an appeal as of right under Article 185(2) of the Constitution by a convict whose acquittal under section 302, P. P. C. was set aside by the Peshawar High Court by its judgment dated 3-12-1978 and he was convicted under section 302, P. P. C. and sentenced to imprison­ment for life in substitution of his conviction under section 304, Part 1, P. P. C. and sentence of 7 years' R. I. awarded by the trial Court by the judgment dated 13-3-1976. On the night of 16-10-1973, Mahbub Ali (P. W. 9) the complainant, Gulroz the deceased, Tahir Shah (P. W. 10) and Sahib Shah (P. W. 11) had gone to the mosque for their Ishah and Teravi prayers. After completing the same they were coming back to their houses when on the way Tahir Shah (P. W. 10) and Sahib Shah (P. W. 11) stopped for easing themselves in the fields. Mahbub Ali (P. W. 9) and Gulroz deceased proceeded ahead. From the neighboring field of Mahbub Ali in which sugarcane had been cultivated sound was heard as if there someone were stealing the sugar-cane. Mahbub Ali and Gulroz went there to find an orphan boy Farhad stealing their sugar-cane. They caught hold of him and wanted to take him to his mother in order to complain about what he had been doing at night in their field but Farhad was reluctant to accompany them on which they were dragging him. They brought him to the road side. In the meantime the appellant Dildar Gul appeared on the scene armed with a gun, intervened and objected to their applying force to Farhad, and it is said, an altercation took place wherein .the deceased…

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