1. ' MUHAMMAD AFZAL ZULLAH, J.-Conviction and sentence of life imprisonment of Saidur Rehman appellant under section 302, P. P. C. Affirmed in appeal by the Peshawar High Court, has been called in question through this appeal through special leave.
2. ' Suleman P. W. 1 an injured eye-witness and brother of Gohar Rehman deceased reported to the police on 28-6-1972 that the appellant and his companion Mir Dad his co-convict (under section 323 only) came to their field when he was ploughing the same and the deceased was present nearby. Saidur Rehman who had a pistol with him abused him and fired a shot at the deceased hitting him in the chest. Mir Dad gave a stick blow to the witness On the alarm Ashraf and Saud P.
3. Ws. Reached the spot and saw the occurrence. The motive disclosed in the F. I. R. Was that on the day previous to the occurrence the witness and the appellant had altercated on the dispute over a banna, which the appellant had damaged.
4. ' At the trial Suleman P. W. Gave the above account. He, however, added that "on the day of occurrence just before the occurrence. Gohar Rehman deceased was mending the `banna' when Saidur Rehman accused came there and grappled with the deceased. The accused then went to the village front where he returned along with his co-accused Mir Dad and killed the deceased".- XEN. "Saidur Rehman accused, during the grappling, was overpowered and felled on the ground, and the deceased rode on his belly. After this the accused rushed to his house and brought the pistol and the occurrence took place. The interval between the grappling and the occurrence was about 5 to 10 minutes". The witness also admitted that prior to the occurrence the deceased was breaking the earth clods with a prick axe. The other two eye-witnesses also supported the prosecution. The site plan and Investigating Officer's statement indicated that there were marks of grappling at the spot and that the deceased was fired at from a distance of five paces. The medical evidence confirmed the eye-witness account. The defence plea was of denial and no evidence was led by the accused.
5. ' Learned trial Judge found the appellant guilty of murder and awarded him lesser penalty of life imprisonment, as according to him, there being no previous enmity the dispute was over a banna and further that by throwing him on the ground and sitting over him the deceased had 'alighted' the appellant which must have provoked him. Mir Dad, it was held, did not share the intention of the appellant. He was convicted under section 323, P. P. C. Only. He did not challenge his conviction. The appellant's conviction and sentence having been maintained in appeal, he has challenged the appellate judgment through this appeal. Leave was granted to examine the question whether in view of the grappling in which the deceased had upper hand, the offence did not fall under section 304, Part I by application of Exception 2 to section 300, P. P. C.
6. ' Mr. Masoom Ali Shah, learned counsel for the appellant has rightly stated that the only point for consideration is whether in view of the grappling part of the prosecution case, as deposed by the star witness Suleman, the appellant has rightly been denied the benefit of exception 2 to section 300, P. P. C. According to him, the appellant had the right of private defence at the time when the deceased having thrown him down sit on his belly.. He further argued that although the right did not extend to the causing of death (as there was no material that when under the assault the appellant had apprehension of death or grievous hurt), he could cause any other harm to the deceased as provided in section 101, P. P. C. Therefore, the case was covered by exception 2 to section 300, P. P. C. With regard to the splitting up of the occurrence by Suleman P. W. In his deposition in such a way as to attach the grappling part of it with the motive, and the introduction of appellant's retreat to the village and his return armed with the pistol after few minutes, for committing the crime, he contended was an improvement and embroidery to deprive the appellant of his right of private defence. He explained that it was all done to avoid the consequences of discovery by the police that there was grappling at the spot.
7. ' Although the learned Judges of the High Court accepted Suleman's narrative at the trial regarding the details of the occurrence including his assertion that the appellant had gone to the village after the grappling and before the firing incident, it would not be now necessary to examine this finding because even if it be assumed that there was one incident and the grappling was followed by firing, this case would not fall within the scope of Exception 2 to section 300, P. P. C. The appellant being conscious of the previous day's, altercation came to the spot armed with a pistol. Not only this, he brought' a companion with him who was armed with a stick and on reaching the spot he abused his adversary. There was not only premeditation but also full preparedness for an attack.
8. Thus the proviso would not be attracted. This is not all. What happened subsequently also goes against the appellant. The medical evidence shows that the shot was fired during grappling. This also gets confirmed from other evidence which shows that the appellant fired at the deceased from distance of five paces. After the grappling incident which was provoked by him, the appellant instead of going away stood aside and fired at the deceased. In the circumstances of the case, therefore, the appellant could not take advantage of proviso 2 to section 303, P. P. C., due to premeditation, absence of which is a necessary ingredient for its application.
9. ' The appellant has rightly been convicted for the offence of murder. This appeal fails and is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.