ASIF SAEED KHAN KHOSA, J. According to the prosecution a volleyball match was in progress in the ground of Ghazali Public School in village Shalband i within the area of Police Station Daggar , District Buner at 03.45 p.m. on 28.02.2004 and Fayyaz Ahmed appellant in Criminal Appeal No. 469 of 2007 and his father Rozi Khan appellant in Criminal Appeal No. 594 of 2014 were witnessing that match when Safdar Ali deceased emerged there and soon thereafter Fayyaz Ahmed appellant took the deceased in his clasp and Rozi Khan appellant gave a chhurri blow to Safdar Ali deceased which landed in his abdomen. The said injury proved fatal and as a result thereof Safdar Ali deceased breathed his last on his way to the hospital. FIR No. 178 was lodged in respect of that incident by Muhammad Khan complainant at 04.45 p.m. on the same day for an offence under section 302, P.P.C. During the investigation the appellants were arrested and a chhurri was recovered from the custody of Rozi Khan appellant.
Upon completion of the investigation a Challan was submitted before the trial court which framed a charge with one head under section 302(b), P.P.C. read with section 34, P.P.C. against the appellants to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced nine witnesses in support of its case against the appellants including Babar Zia (PW5) and Fazal Akbar (PW6) who furnished the ocular account of the incident. Dr. Jehanzeb (PW3) provided the medical evidence. Khurshid Khan, S.I. (PW9), the investigating officer, stated about the various steps taken by him during the investigation of this case. The remai ning evidence produced by the prosecution was formal in nature. In their statements recorded under section 342, Cr.P.C. the appellants denied and controvertted all the allegations of fact levelled against them by the prosecution and professed their innocence.
The appellants opted not to make any statement on oath under section 340(2), Cr.P.C. and did not produce any evidence in their defence. At the conclusion of the trial the learned Additional Sessions Judge/Izafi Zilla Qazi, Buner convicted Fayyaz Ahmed appellant for an offence under section 302(c), P.P.C. and sentenced him to rigorous imprisonment for fourteen years and to pay a sum of Rs. 50,000/- to the heirs of Safdar Ali deceased by way of compensation under section 544-A, Cr.P.C. or in default, of payment thereof to undergo simple imprisonment for six months. The trial court also convicted Rozi Khan appellant for an offence under section 302(b), P.P.C. and sentenced him to imprisonment for life and to pay a sum of Rs. 50,000/- to the heirs of the deceased by way of compensation which was recoverable as arrears of land revenue or in default of payment thereof he was sentenced to simple imprisonment for six months. Fayyaz Ahmed and Rozi Khan appellants assailed their convictions and sentences before the Peshawar High Court, Peshawar through Criminal Appeal No.119 of 2005 and Muhammad Khan complainant preferred Criminal Revision No. 119 of 2005 before the said Court seeking enhancement of the sentence passed against Fayyaz Ahmed convict. Through a consolidated judgment dated 12.04.2007 a learned Division Bench of the Peshawar High Court, Peshawar allowed the complainant's revision petition, converted the conviction of Fayyaz Ahmed convict from one under section 302(c), P.P.C. to that under section 302(b), P.P.C. and sentenced him to imprisonment for life while maintaining the order regarding payment of compensation passed against him by the trial court. Through the same judgment the learned Division Bench of the High Court upheld the conviction and sentence of Rozi Khan appellant recorded by the trial court. The appeal filed by both the appellants was dismissed with the above mentioned enhancement of the sentence of Fayyaz Ahmed.
Fayyaz Ahmed appellant has approached this Court through a direct appeal, i.e. Criminal Appeal No. 469 of 2007 whereas Criminal Petition No. 60-P of 2007 had been filed by Rozi Khan convict and in that petition leave to appeal had been granted by this Court on 08.04.2014. Hence, the present appeals before this Court.
2. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance. It has been argued by the learned counsel for the appellants that the trial court was entirely justified in concluding that the offence committed by Fayyaz Ahmed appellant attracted section 302(c), P.P.C. and the High Court was not justified in enhancing the sentence of the said appellant from one under section 302(c), P.P.C. to that under section 302(b), P.P.C. He has also maintained that the sentence of imprisonment passed against the said appellant by the trial court was sufficient to meet the ends of justice. As regards Rozi Khan appellant he has maintained that his case too attracted the provisions of section 302(c), P.P.C. and, therefore, he shall be satisfied if his conviction is recorded by this Court for an offence under section 302(c), P.P.C. and in the matter of sentence he may be treated at par with Fayyaz Ahmed appellant with whom he shared common intention in committing the alleged murder . As against that the learned counsel for the complainant has maintained that the record of this case clearly established that both the appellants had developed an intention to kill the deceased at the spot through the use of a chhurri and the blow given in the abdomen of the deceased indeed proved fatal. In these circumstances, according to the learned counsel for the complainant, it was a case of Qatl-i-amd and both the appellants shared common intention towards that end and, thus, the High Court was quite justified in recording the appellants' convictions and sentences by invoking the provisions of section 302(b), P.P.C. The learned Additional Advocate-General, Khyber Pakhtunkhwa appearing for the State has supported the submissions made by the learned counsel for the complainant and has maintained that the High Court was quite justified in reaching its conclusions and in recording the convictions and sentences of both the appellants.
3. After hearing the learned counsel for the parties and going through the record one thing is quite noticeable that according to the FIR itself both the appel lants were present at the scene of the crime prior to arrival of Safdar Ali deceased there and they had no prior information that the deceased would come that way. In these circumstances it was far-fetched to conclude that they had any premeditation or pre-concert to do away with the deceased. The record shows that the motive set up by the prosecution based upon a past incident had been discarded by the High Court as unproved and the alleged recovery of a chhurri from the custody of Rozi Khan appellant had also been ruled out of consideration by the High Court because the recovered chhurri was not stained with blood and, thus, it did not stand connected with the alleged offence of murder . Be that as it may one thing is clear to us that once Rozi Khan appellant, father of Fayyaz Ahmed appellant, had taken out his chhurri for causing a blow to the deceased the giving of such blow had been facilitated by Fayyaz Ahmed appellant by catching hold of Safdar Ali deceased which shows that both the appellants had developed a common intention at the spot and both had then committed overt acts in furtherance of that common intention.
4. The facts and circumstances of the case clearly demonstrate that the encounter between the parties was a chance and sudden encounter and there was no premeditation involved in this case. In this sudden occurrence only one blow was given by Rozi Khan appellant to Safdar Ali deceased and despit e an opportunity being available in that regard he had not repeated that blow. In the heat of passion at the spot no undue advantage had been taken by the appellants and they had not acted in any manner which could be termed as cruel or unusual. For all these reasons we have concluded that the actions attributed to the appellants attracted the provisions of section 302(c), P.P.C. With this conclusion we hold that the trial court was quite justified in convicting and sentencing Fayyaz Ahmed appellant for an offence under section 302(c), P.P.C. and the conviction and sentence of Rozi Khan appellant for an of fence under section 302(b), P. P.C. were unjustified.
5. For what has been discussed above Criminal Appeal No. 469 of 2007 is allowed, the judgment passed by the High Court allowing the complainant's revision petition is set aside and the judgment passed by the trial court vis-- vis Fayyaz Ahmed appellant is restored. As regards Rozi Khan appellant his Criminal Appeal No 594 of 2014 is partly allowed, his conviction for an offence under section 302(b), P.P.C. is converted into one under section 302(c), P.P.C. and he too is sentenced to rigorou s imprisonment for fourteen years and to pay a sum of Rs.50,000/-to the heirs of Safdar Ali deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. shall be extended to both the appellants. These appeals are disposed of in these terms.