1. ' 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 I, P. P. C. And sentence of 7 years' R. I. Awarded by the trial Court by the judgment dated 13-3-1976.
2. ' 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 neighbouring field of Mahbub Ali in which sugarcane had been clutivated 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 pushed the appellant on which the latter fell in the nallah and the muddy portion near about. Immediately on getting up he fired one shot with the gun by which Gulroz was fatally injured on the face and the head. Tahir Shah and Sahib Shah, the two witnesses who had stayed behind for easing themselves heard the report of the shot and rushed to the spot. Gulroz became unconscious on receiving the injuries.
3. ' The appellant ran away from there. The injured was first taken to the police station in an unconscious state where the report was lodged by Mahbub Ali about the occurrence. Gulroz was taken to the hospital where he soon expired.
4. ' At the trial Mabbub Ali was the only eye-witness who narrated the entire occurrence having seen it himself. Tahir Shah (P. W. 10) and Sahib Shah (P. W. 11) gave the evidence only with regard to their having reached the scene after hearing the report, of the shot and then learning that the appellant had fired and escaped from there on a dispute concerning Farhad. The Investigating Officer Attaullah Khan (P. W. 13) stated about the recording of the F. I. R. The injury sheet prepared by him and the inquest report and the taking of the blood-stained earth from the spot and cardboard disc Exh. P/2 and snuff box Exh. P.
3. The'plea of the accused at the trial was as follows :- "I had previously enmity in Pabbi and, therefore, at night time I used to carry gun. On the night of incident after offering my Khuftan prayers I went out to ease myself. When I came to the spot, 1 saw Mahbub and Gulroz mercilessly beating Farhad with sugar-cane. I came near them and entreated them not to beat Farhad because he is an orphan boy, and they should take him to his mother.
5. Gulroz slapped me on my face and also tried to take gun from me saying that he would stuff the same in my anus. 1 told him that I would go my way if they were offended. He started abusing me and he pushed me and I fell in a dirty Nala, and in the process my gun went off and the deceased was accidentally hit. I am innocent and falsely charged."
6. ' As the appellant could be arrested only on 8-8-1975 i. e, after about two years of the occurrence and meanwhile taken to be an absconder he was asked to explain his abscondence after the occurrence and be said "I had absconded out of fear."
7. ' The trial Court after examining the evidence and relying mainly on the statement of the Investigating Officer held that it was a case of sudden fight where the appellant had acted in the heat of passion upon a sudden quarrel without having taken undue advantage or acted in a cruel and unusual manner in firing a single shot at the deceased in order to relieve himself from the clutches of the deceased. The reasoning by which the learned trial Judge arrived at this finding would appear from the following conclusion :,- "I am in agreement with the arguments of the learned counsel for the accused, because the Investigating Officer observed at point No, I of the site plan that there was altercation between the accused and the deceased. The Investigating Officer also observed foot marks of the accused besides struggle marks at point No, C in the site plan. The Investigating Officer recovered snuff box belonging to the accused from point No,
2. All the above facts when put together show that there was altercation between the accused and the deceased before the incident took place. It follows that it was a sudden fight in the heat of a passion upon a sudden quarrel and without offender's having taken undue advantage or acted in a cruel or unusual manner fired a shot at the deceased in order to relieve himself from the clutches of the deceased. Taking into consideration, that the accused fired only at the deceased in order to relieve himself from clutches of the deceased, I am of the view that the accused has committed an offence which does not come under the definition of murder. The offence if at all committed by the accused comes within the purview of section 300, Exception 4 of the Pakistan Penal Code because the accused had no premeditation and it was at the spur of moment that the incident occurred. Over and above the accused had no enmity with the deceased. In view of the above discussion, I convict the accused under section 304, Part I, P. P.
8. C. And sentence him to seven years' R. I. And a fine of Rs, 1,000 or in default to suffer further two years' R. I The fine if paid, Rs, 700 be paid to the heirs of the deceased as compensation."
9. ' State filed an appeal against the acquittal of the appellant under section 302, P. P. C.
10. ' The High Court after examining the evidence on record and considering the requirement of Exception IV to section 300 held as follows :- "Admittedly the accused/respondent was armed with a topak whereas the deceased was empty- handed. There was also pushing by the deceased to the accused respondent from points A to C where he ultimately fell in the nullah of dirty water and mud yet the accused-respondent had no right to fire at the deceased. He (accused-respondent) could have relieved himself from the clutches of the deceased, by giving him fist and kick blows or at the most could hit him with the butt of his topak but by his (accused respondent) firing at the deceased which hit on the vital part of his body, the accused-respondent has definitely taken undue advantage and has acted in a cruel and unusual manner and thus has deprived himself of the concession provided in exception 4 to section 300 P. P. C."
11. ' His acquittal was, therefore, set aside and he was convicted under section 302, P. P. C. And sentenced to imprisonment for life and further ordered to pay a sum of Rs,300 as compensation to the heirs of the deceased.
12. ' Learned counsel for the appellant submitted that the prosecution evidence itself established that there was a quarrel over the handling of Farhad followed by physical involvement of the deceased and the appellant. Ultimately the appellant was pushed with such force and effort that he dropped in the nullah and his clothes got soiled with mud and slush. It was then that the appellant fired a single shot and no more. In such a background, according to the learned counsel for the appellant, the appellant cannot be held to have either taken undue advantage or to have acted cruelly.
13. This is a case in which the nature of the intervention of the appellant has been brought out in evidence. Mahbub Ali (P. W. 9) stated "Didar Gul accused intervened and asked Gulroz deceased that he had no business in the matter." This makes out the intervention of the appellant to be positive and against the deceased and in favour of the boy Farhad. It was then that "the deceased pushed the accused. The appellant stood up and then fired a shot at the deceased from a distance of 10-12 feet. There was, therefore, no fight on when the appellant fired the shot. As the appellant's intervention in the matter was not without fault he had a legal duty to retreat when asked to keep off. The push given to him to ward off his intervention did not justify his use of force.
14. ' What the Investigating Officer said does not carry the case of the appellant any further. In cross- examination he stated as follows : "It is correct that I have written in my note C that there was struggle marks and foot marks in the mud. I meant that if a person falls in the mud and he tries to get up there are marks of foot and hands by that I meant struggle marks. Though ordinarily Kashmakash means struggle between the two persons. It is incorrectly recorded in the foot-note C that there were foot marks of the accused besides struggle marks. I prepared the site plan at the instance of the P. Ws. It is correctly recorded in point No, 1 that there was altercation between accused and the deceased and then the occurrence took place."
15. ' It was nobody's case that the fight took place on the muddy portion of the nullah. Obviously what was taken to be the struggle marks in the mud was in fact the foot and body marks of the appellant as he alone was in that area. The struggle marks elsewhere in the neighbourhood could as well be of dragging of Ferhad by the deceased and Mahbub Ali (P. W). The appellant could not in the circumstances be given the benefit of Exception IV to section 300, P. P. C. Or of Exception I to section 300, P. P. C. His conviction and sentence under section 302, P. P. C. Is quite proper.
16. ' The appeal is, therefore, 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.