' SARDAR MUHAMMAD ASLAM, C J.---Appellant Muhammad Ishtiaq was tried by the learned Sessions Judge, Islamabad in a case F.I.R. No,192 dated 21-6-2002 registered under section 302, P.P.C. At Police Station Sihala, District Islamabad who vide judgment dated 6-12-2002 convicted the appellant under section 302(b), P.P.C. And sentenced to death with the direction to pay Rs,3,00,000 to the legal heirs of the deceased as compensation, provided under section 544-A, Cr.P.C. In default whereof six months' simple imprisonment.
2. Briefly the prosecution set up according to F.I.R. Is that on 21-6-2002, at about 11-30 a.m. Zahoor Ahmad complainant along with his brother Mehmood Ahmad proceeded to Soan Nala near Pepsi Cola Factory to look after their cattle where other co-villagers along with their cattle, were also present. In the meanwhile, appellant, a security guard in Pepsi Cola Factory, armed with .12 bore repeater reached there and started abusing for the presence of cattle at the spot. Mehmood Ahmad, deceased clarified the matter but the appellant made a straight fire shot which hit Mehmood Ahmad on his face who fell down and succumbed to the injures. The appellant fled away from the spot. The motive behind the occurrence was that prior to this occurrence the villagers were restrained to provide water to their cattle from the place of occurrence.
' On the report of the complainant, Exh.PA was recorded by Muhammad Iqbal, S.-I. Who after formal proceedings, examined the dead body, prepared the inquest report along with an application for post-mortem examination and dispatched the dead body under the escort of Sikandar Hayat, constable (P.W.10) and Muhammad Azam constable. Complaint Exh.PA was sent to police station for recording of F.I.R. Through, Zulfiqar Ali, constable. On arrest of the appellant, the police recovered the weapon of offence which was taken into possession through recovery memo. The sealed parcels were dispatched to the office of Chemical Examiner and Forensic Science Laboratory, Lahore respectively. After the post-mortem conducted by Dr. Arshad Khan, P.W.8, last-worn clothes of the deceased, sealed parcel phial containing pellets were handed over to the concerned officials who produced the same to the Investigating Officer who had taken possession, through recovery memos.
3. During the investigation, the appellant was found guilty and challaned. The learned trial Court formally charged the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced eleven witnesses in all. It also tendered in evidence the report of Chemical Examiner Exh.PP, that of Serologist Exh.PQ and of Forensic Science Laboratory Exh.PN respectively which were positive. After recording the prosecution evidence, the statement of the appellant under section 342, Cr.P.C. Was recorded in which he pleaded his innocence and refuted the allegation levelled against him and asserted as under:-- "I am innocent. I am security guard in factory since so many years, there is not a single incident involving me of any aggression or crime. I am regular pious Muslim and it is but for my character that I have been officiating as Security Guard of a factory. I feel greatly aggrieved for the death of Mehmood, the whole thing happened at the spur of the moment. I never intended or acted in any manner to cause death of the deceased, as being locals, they felt annoyed of my being reprimanding them from approaching factory premises and since I was also alone, they threatened me and injured me and even tried to snatch weapon from me and Mehmood was grappled with me at the time of the shot. I may further submit the fire wound was directly under the chin of the deceased and from a very close range, as the barrel of the gun was pointing upward in between both of us and I was trying to protect the weapon while he was trying to take it away and if I had gone let it go, Mehmood would have killed me with the same gun. I was only protecting my gun from being snatched and during this process the shot went off without any overt act on my part.".
4. The learned counsel contends that occurrence took place on the spur of moment without any premeditation, pre-concert or pre-planning on exchange of abuses and a scuffle took place between the appellant and the deceased in bid to take possession of the gun during which it accidentally went off; that the injury caused at the chin damaging the lower portion of the socket of teeth, mandible and pellet injuries on the apex of lungs are suggestive of the fact that barrel of the gun was very close and fire shot landed from upside down and that the appellant had very apprehension that if the deceased managed to snatch the gun, he would have killed the appellant, therefore, under immediate apprehension of death they had the right of self-defence.
5. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant argued that the time of occurrence, venue, the presence of the eye-witnesses and the fire shot is admitted by the appellant himself, hence, he deserves no leniency in the matter of sentence; as the gun was in the possession of the appellant and even if the barrel of the gun was in the hand of the deceased, the appellant could save the life of the deceased, if he acted, with restraint and caution, being in control of the trigger.
6. We have heard the learned counsel for the appellant, the State as well as the complainant and examined the record.
7. Admittedly, the appellant has admitted the occurrence but gave his version of the incident. Eye- witness account had been furnished by Yasir Nawaz (P.W.4), Mst. Sharina (P.W.5), Zahoor Ahmed, complainant, brother of the deceased (P.W.6). P.W.4 in his examinationin-chief stated that the deceased used filthy language when accused dissuaded him, upon which the appellant reacted and fired a shot. P.W.4 was student of 8th Class at the relevant time. The mother of the deceased was maternal aunt (Khala) of said P.W. This P.W. Admitted in cross-examination that though they were also grazing the cattle but were not questioned by the appellant except the deceased who was abused and he too reacted and returned abuses to the appellant. P.W.5 was at a distance of 55 feet from the deceased. P.W.6 complainant, admitted that the appellant and the deceased were present face to face. Muhammad Iqbal, S.-I./I.O. Stated that he collected three up-rooted teeth of the deceased lying at the spot. Ali Ahmad, chief security officer had produced the appellant with a repeater .12 bore gun along with licence, in the police station. Dr. Muhammad Arshad Khan (P.W.8) conducted the post- mortem examination and recorded the following external injuries:-
(1) A large wound on the chin, lower jaw, the chin was shattered of the wound measuring 3 and half inches transversely and two inches up-downward. The margins of the wound were irregular.
' The underlying bone were shattered and seen through and through the wound. Teeth were absent in the corresponding area. The floor of the mouth was severely injured. Blackened tissue inside the wound. The lower lip was also shattered of.
(2) Multiple small pellets size wound, on the upper third of the neck front.
(3) Five small pellet size wound on the right lower chick.
8. Eye-witnesses stated that the deceased and the appellant were standing face to face at a distance of only five feet from each other. Length of the crime weapon was measured by the learned trial Court and it came to two feet and six inches. Injuries on chin going downward would negate account of the eye-witnesses that deceased and appellant was standing face to face. Had it been so, injuries would after hitting the chin must have gone on back side of the neck rather than on the front of next, trachea, larynx and apex of lungs. Medical evidence does clash with the ocular account. Presumably while snatching the barrel of gun the muzzle was so close to chin that it caused heavy damage to mandible and removal of floor of mouth. There was no injury on the face except the lower socket and lower mandible. Inference can be drawn that incident has not taken place as deposed by the prosecution witnesses.
9. The injury on chin, causing fracture of mandible, loss of three teeth from the lower socket, injuries on apex lungs, severe damage to larynx and trachea, suggest that injury was caused from a very close range and were in up-downward direction.
10. There is neither any motive nor any previous between the parties. The occurrence took place at the spur of moment on exchange of filthy language by both the sides. The deceased as well as the appellant, both were young persons with boiling blood. Both might have lost patience and in the heat of temper, scuffled with each other. It cannot be ruled out safely of a scramble to take possession of the gun by the deceased and a counter effort by the appellant to retain its control.
However, it cannot be said with certitude as to whether, in that scuffle, the weapon went off accidentally or the appellant pressed the trigger to avoid loss of control of the gun; and a resultant apprehension of being done to death or a fatal injury. We are certain that the occurrence took place without any pre-meditation or pre-concert. It was a sudden flare up on exchange of abuses by both the sides and a scuffle had also taken place between them. Assailant in case of such a nature is deprived of self-control. He loses his mental faculty, may be temporarily and is unable to judge his actions. Sudden provocation and flare up of such a nature does not bring the offence into the ambit of outright murder.
11. For what has been discussed above, in our opinion the offence under section 302(c), P.P.C. Is made out against the appellant and awarding of sentence for ten years' rigorous imprisonment will meet the ends of justice. Consequently, we while setting aside the conviction awarded to the appellant under section 302(b), P.P.C., convict the appellant under section 302(c), P.P.C. And sentence him to undergo ten years' rigorous imprisonment. He shall be entitled to benefits under section 382-B, Cr.P.C. Compensation to the legal heirs of deceased is reduced to Rs,1 lac. In default whereof, he shall suffer 3 months simple imprisonment. The sentence of death is not confirmed.
Murder Reference is answered in the negative. With the above modification in the sentence, this appeal is dismissed.