' MIAN BURHANUDDIN KHAN, J.-This judgment will dispose of both the aforementioned Criminal Appeals Nos. 156 and 157 of 1979 directed against the judgment and order of the Lahore High Court, dated 17-2-1979 passed in Criminal Appeal No, 49/76 and Criminal Revision No, 58/76.
2. Ilyas Ali complainant lodged a report against Mushtaq Ahmad and Ahmad Ali alias Bheeku for the murder of Abbas Ali and attempt on the life of Sajjad Ali P. W. And causing simple hurt to the complainant on 21-7-1973 at 3 p.m. In Chowk Bazar at a distance of 1 furlong from P. S. K4p, Multan vide F. I. R. Exh. P. A. Recorded by Muhammad Taj, S. I. W.
11.
3. According to the aforesaid report, the complainant who runs a shop styled as Nyla Cloth House in Chowk Bazar, Multan where Abbas Ali deceased and Sajjad Ali P. W. Also had a cloth shop known as Abbas Cloth Shop closeby. It was a rainy day and the deceased and his two sons were present at their respective shops. Mushtaq accused used to sell knives and daggers on a hand-driven cart in the same locality. On the day of occurrence, Mushtaq accused stopped his cart in front of the shop of the deceased and started throwing water at the deceased who was sitting in the rain in order to soak himself; when the accused Mushtaq threw dirty water at the deceased the latter resented it. At this Mushtaq accused/respondent started abusing and the deceased returned the abuses. Ahmad Ali accused is also alleged to have reached the spot meanwhile and joined Mushtaq accused/respondent in abusing the deceased and exhorted Mushtaq saying that the old man i,e, Abbas Ali be done to death. Both Mushtaq Ahmad accused/respondent and Ahmad Ali accused/respondent picked up knives from the cart and started stabbing the deceased. Mushtaq Ahmad dealt a blow on the left side of his abdomen and Ahmad Ali gave a blow on the left side of the chest of deceased who fell to the ground. Sajjad Ali is stated to have stepped forward to rescue his father when accused Ahmad Ali gave him a knife blow on his right flank and right buttock, Ilyas All then came forward and caught hold of the knife of Mushtaq Ahmad who pulled the knife and injured the left hand of Ilyas Ali. The occurrence was witnessed by Muhammad Rafiq P. W.
10. The case was initially registered under section 307/34, P. P. C. But later on, on the death of Abbas Ali the same day the offence was altered to section 302/34, P. P. C.
4. After recording the above report, Muhammad Taj, S. I. P. W. 11 went to the spot to investigate the case. He took into possession various articles relevant to the case, and also took into possession the cart of Mushtaq Ahmad. He prepared injury statement Exh. P. N. And inquest report Exh. P.
0. And got prepared from Ashiq Draughtsman P. W. Site plan Exh. P. J. And its duplicate Exh. P. J./1.
5. Thereafter Usman Ahmad Khan S. J. P. W. 12 took over the investigation of the case and arrested both the accused on 21-7-1973. He got removed the blood-stained clotnes of the accused/respondents and took them into possession vide Memo. Exhs. P. K. And P. L. Mushtaq accused led the Investigating Officer to the recovery of blood-stained knife P-5 from inside his house in Andhi Khoi, Multan which was taken into possession vide Memo. Exh. P. G. On 25-7-1973.
Similarly Ahmad Ali led the I.
0. To the recovery of knife P. 6 which was also blood-stained and was taken into possession vide Memo. Exh. P. H.
6. Dr. Syed Aitaf Hussain P. W. 5 Medical Officer, Civil Hospital Multan conducted the post-mortem examination on the dead body of Abbas All deceased on 22-7-1973 and found-
(i) an incised wound 3/4" x 1/4" muscle deep on the outer side of left chest mid auxiliary line.
(ii) an incised wound (stab) triangular shape 1.7/8" x 3/4" X abdominal cavity on the left iliac fossa, and
(iii) an incised scratch 5.1/2" x 1/2' on the front of the left chest 3' away from the left nipple.
' The peritonium was found cut under injury (ii) above and the abdominal cavity was full of clotted and dark red fluid blood; small intestine was cut through and through at one place under injury (ii) above and the mesentry was cut alongwith blood vessel under injury (ii). In the opinion of the doctor the death was due to shock and haemorrhage and injury (ii) above was found to be sufficient to cause death in the ordinary course of nature.
7. Dr. Abdul Wahid, Medical Officer, Civil Hospital, Multan examined Sajjad All and found :
(i) a punctured wound 1" x 1/2' not probed on the right side of abdomen 1.1/2" above the aliac crest and 6.1/4" from the umbilicus and
(ii) an incised wound 1/4 " x 1/8" x 1/4 on the right side of back 2.1/2" from the vertebral line 6.1/4" above the hip bone.
' Dr. Abdul Wahid also examined Ilyas Ali and found an incised wound 1" x 1/4 x 1/8 at the root of the thumb of left hand of Ilyas Ali.
8. The prosecution produced Ilyas Ali P. W. 8, Sajjad Ali P. W. 9 and Muhammad Rafiq P. W. 10 who gave ocular account of the occurrence. The learned Sessions Judge, Multan who tried the accused convicted and sentenced both the accused/respondents Mushtaq Ahmad and Ahmad Ali to imprisonment for life under section 302/34, P. P. C. For committing the murder of Abbas Ali deceased and a fine of Rs, 2,C00 each, as compensation to the heirs of the deceased or in default to undergo R. I. For a further period of one year. Both the accused/respondents were also convicted under section 307/34, P. P. C. For murderous assault on Sajjad Ali P. W. And were sentenced to undergo R. I. For two years each; and were further convicted and sentenced under section 324/34, P. P. C. For causing injury to Ilyas Ali P. W. And sentenced to six months' R. I. Each. All the sentences of imprisonment were ordered to run concurrently.
9. The convicts filed appeal but the same was dismissed by the Lahore High Court. As regards the revision petition for enhancement of sentence from life imprisonment to death the learned Judge declined to enhance the sentence holding that the matter was the result of a sudden quarrel A between the parties. Complainant Ilyas All filed a petition for leave to appeal and leave was granted vide order of this Court, dated 24-10-1979 to consider the question of enhancement of sentence and leave was also granted to Mushtaq Ahmad and Ahmad Ali to consider the question of their vicarious liability as the learned Judges of the trial Court and High Court had held that there was no previous enmity between the parties and the incident in question was the result of a sudden quarrel wherein both the accused are B stated to have picked up knives from the cart of Mushtaq appellant and attacked Abbas Ali deceased, and since this was a sudden quarrel and unpremeditated affair, therefore, each of the assailants will be liable for his own individual act. As the fatal injury caused to the deceased is attributed to Mushtaq Ahmad alone, Ahmad Ali appellant should not have been found guilty under section 302/34, P. P. C. But only for causing simple injury with a knife on the chest of the deceased.
10. Learned counsel for the appellant in Criminal Appeal No, 156/79 contended that it was a cruel act without any provocation given by the deceased or his sons P. \Vs.; that the deceased-an old man-was insulted and thereafter he was attacked with knives and stabbed by the accused/ appellants and it would be immaterial as to which of the injuries resulted in the death of the deceased; that common intention could be formed in an incident resultant of the spur of a moment, and needs not neceassrily to be premeditated attack; the offence, in any case, would fall under section 302 read with section 34, P. P. C. And as such both the accused/appellants deserve normal penalty of law i,e, death. The learned counsel further contended that there being no harm done to the accused, it could not, therefore, be made a case where they could have acted in self- defence or under any provocation.
11. While going through the evidence we find that it was a sudden quarrel between the parties. The accused/appellants had not come prepared to attack the deceased with knives which were available lying on the cart of Mushtaq appellant where from the knives were picked up at the spur of the C moment. It is in evidence that Mushtaq was the first to attack the deceased and in the meantime Ahmad Ali accused/appellant reached the spot and seeing a fight going on between Mushtaq Ahmad and Abbas All he too took up a knife and raising a lalkara gave only one blow to the deceased which fell on the left side of the chest of the deceased and the doctor found this injury to be a 'simple injury'. Thus, Ahmad All will be responsible for causing simple injury with a knife to the deceased. Had he the intention to cause the death of the deceased, he could have caused more injuries as he was also possessed of a knife. Ongoing through the judgment of the trial Court we find that in the relevant portion of the judgment, it has been observed since the occurrence evidently took place all of a sudden, the extreme penalty of death is not called for."
Same is the observation of the learned High Court. Agreeing with the view of the trial Court the learned Judge observed : .....If it was an intended murder, the appellant would not have chosen a bazar to be a venue of attack. They did not come together nor were they armed before the quarrel had actually started.
They picked up knives from rehri which was standing closeby in the course of quarrel and inflicted blows to the deceased and the P. Ws. I, therefore, feel inclined to concur with the view of the learned trial Judge that the occurrence was essentially a result of sudden quarrel which had started when one of the appellants began throwing rain water over the deceased."
' In view of the above, we are inclined to accept the argument of the learned counsel in case of Ahmad Ali, appellant in Criminal Appeal No, 156/79 and set aside his conviction and sentence under section 302/34, P. P. C. And hold him guilty only of causing simple hurt to the deceased and would convict and sentence him under section 324, P. P. C. To one year's R. I. And fine of Rs, 1,000 or in default to undergo further 6 months' R. I.
12. As regards the case of Mushtaq Ahmad, appellant in Criminal Appeal No, 157/79, the prosecution case against him is established beyond any reasonable doubt by the ocular testimony of the eye- witnesses and the statement of the doctor who held the injury caused in the abdomen of the deceased to be fatal and sufficient in the ordinary course of nature to cause death. Mushtaq Ali caused the fatal injury to the deceased Abbas All with a knife, and though the quarrel was sudden yet he cannot be exonerated of the charge under section 302, P. P. C. He, undoubtedly, caused the injury to the deceased with the intention of causing his death or with the intention of causing such bodily injury as was likely to cause the death of the deceased. Therefore, his conviction under section 302, P. P. C. To life imprisonment is maintained. He would, however, be entitled to benefit of section 382, Cr. P. C. As for the enhancement of sentence awarded to him, we agree with the finding of the Courts below that it was not a case where normal penalty of death is called for as the matter was sudden and unpremeditated. Therefore, the appeal for enhancement of his sentence fails and is, accordingly, dismissed.
13. Coming to the injury caused to Ilyas Ali, it is in the evidence of witnesses that he held the knife of Mushtaq accused and when the latter pulled it back, in the process it caused injury to his hand. We, therefore, consider that this injury was not caused voluntarily. Hence, we set aside the conviction of Mushtaq Ahmad under section 324, P. P. C.
Ahmad Ali was, however, found guilty of attempting on the life of Sajjad All P. W. By the Courts below when the latter tried to intervene and save his father Abbas Ali deceased from further assault. But in the circumstances of the case it appears that Ahmad Ali wanted to keep Sajjad away from apprehending or overpowering him and in this effort he caused grievous injury to Sajjad. We, therefore, alter his conviction from under section 307 to section 326, P. P. C. But we maintain his sentence of two years' R. I. Thus, Criminal Appeal No, 157/79 filed by Mushtaq Ahmad and Ahmad All stands partly allowed as above.