' MIAN SHAKIRULLAH JAN, J.---The appellant, with the leave of the Court through the instant appeal, is seeking setting aside of the judgment of his conviction and sentence passed by the High Court and his acquittal in a murder case. Leave was granted to consider, the quantum of sentence on the ground that the occurrence was the result of sudden flare up and the case of the appellant attracted the provisions of section 302(c), P.P.C. Instead of 302(b), P.P.C., in the following circumstances of the case which have been given in paras 4 and 5 of the impugned judgment and are reproduced herein below:-- "4. The prosecution case set up in the F.I.R., in brief, is that on 19-7-2002 at 4-30 p.m. Aulia Khan, P.W.11, 'his brother's son Gulab Khan, P.W.10, his son Khilas Khan, given up P.W. And his younger brother Baz Khan (deceased) were present in their house, when Raees Khan, appellant, armed with gun .12 bore and his son Mohabbat Khan empty handed threw challenge that they were going to uproot hedge of thorny bushes. Baz Khan, deceased, stood up after hearing the challenge and proceeded towards the accused persons followed by the eye-witnesses. After having reached at the spot Baz Khan, deceased, responded the challenge in the same words. On asking of Mohabbat Khan (acquitted accused), Raees Khan (convict) fired with gun striking Baz Khan in his chest. Gulab Khan, P.W.10 and Khilas Khan, given up P.W., picked up, sticks/dandas and struck Raees Khan and Mohabbat Khan, accused persons, on their heads. Thereafter, the assailants fled.
5. Motive for the occurrence was that the complainant party had placed thorny bushes near their house bordering the passage to the annoyance of Raees Khan, who had been asking the P. Ws. To remove the thorny bushes from his owned plot, but unsuccessfully."
2. The learned counsel for the appellant in view of the leave granting order has confined his arguments only to the quantum of sentence by altering it from section 302(b), P.P.C. To section 302(c), P.P.C. And with a prayer for reduction of sentence to the minimum by contending that it was a case of sudden flare up, in other words sudden provocation as contemplated by section 304(a), P.P.C. Before the amendment introduced in the P.P.C. And now covered under section 302(c), P.P.C.
3. We have considered this aspect of the case. The appellant has been charged for effective firing at . The deceased. It is also in the evidence that the appellant along with his son while busy in removing/uprooting thorny hedge from a disputed place which was not allowed by the complainant party and as a result of tight between the two parties, in which the accused party has also received certain injuries, the deceased was done to death by firing at him with a lethal weapon on a vital part of the deceased's body by the appellant as a result of which he succumbed to injuries. The fact that the appellant. Had come to the spot being armed with a fire-arm while the other party (complainant party) was not having such weapon with them which would compel the appellant in order to avoid any apprehended act to use the fire-arm prior to the other party.
According to the prosecution story which the complainant himself stated in the F.I.R. About the injury caused to the accused party by them was after the firing by the appellant at the deceased which fact could not have been dislodged. The learned counsel for the appellant even at the appellate stage before the High Court while arguing his case has considered it a "mitigating circumstance" for determining the quantum of sentence within the ambit of section 302(b), P.P.C.
And has not pressed his appeal further..
4. Resultant consequence of the above discussion is that the learned counsel for the appellant has failed to make a case to bring it within the ambit of section 302(c), P.P.C. For a reduction of sentence from imprisonment for life to any other lesser term of imprisonment. Therefore, we see no force in this appeal and the same is dismissed.