' MUHAMMAD HALEEM, ACTG. C. J.-These appeals, by special leave, arise from the judgment dated 29th of April, 1979, of the Lahore High Court, Lahore. Criminal Appeal No, 69 of 1980, is directed against the acquittal of Muhammad Nazir and for the enhancement of the sentence of appellant Nawab to death in Criminal Appeal No, 70 of 1980, which turns against his conviction and that of Muzaffar Hussain and Muhammad Salim,
2. Leave to appeal was granted to consider :- "Whether the judgments of the two Courts are in accordance with the principles laid down by this Court for the appraisal of evidence in criminal cases."
3. Nawab alongwith his four sons Muzaffar Hussain, Riasat, Muhammad Salim and Muhammad Nazir, was tried for the murder of Wadi Khan, deceased, and for the attempted murder of P. Ws.
Amir Hussain and Iqbal Ahmad.
4. It was said that at about 4-30 p. m. On 9th of June, 1975, while Azram alongwith Wadi Khan, deceased, Iqbal Ahmad and Amir Hussain, were returning after witnessing a Kabadi match held at the fair at the tomb of Mian Faizullah in village Jand Najar, they were attacked by Nawab, Muhammad Salim, Muzaffar Hussain, Riasat and Muhammad Nazir, out of whom Nawab and Muhammad Salim were armed with knives while Muzaffar Hussain had a revolver and Riasat, a gun. Muhammad Nazir was empty-handed. The part attributed to Muhammad Nazir was that he held Wadi Khan in his grip from behind whereas Nawab inflicted a knife blow in his abdomen followed by Muhammad Salim who caused a knife blow to Amir Hussain on his abdomen. Muzaffar Hussain fired a revolver shot at Iqbal Ahmad which hit him on his chest. Riasat only raised a lalkara that none of them should be spared. Azram took to his heels and it was alleged that he saw the incident from a distance of about 15 paces. Saeed and Sharif who also saw the incident raised an alarm which attracted the other co-villagers, whereupon the assailants left the place. P. W. Azram took Wadi Khan, deceased, and the other two injured Iqbal Ahmad and Amir Hussain to Civil Hospital, Gujar Khan, and upon their examination they were directed to be taken to the District Head-quarter's Hospital, Rawalpindi, as they were seriously injured. On arrival at the said hospital, it being Sunday, neither the Medical Superintendent nor any Medical Officer was available to attend to them and on advice being given that they should be removed to Central Government Hospital, Rawalpindi, they were taken there and admitted for treatment. It was after all this exercise that Azram proceeded to Police Station Gujar Khan, where he lodged the report at 8-00 a. m. On the 10th of June, 1974.
5. The enmity alleged was that about a year before the incident, Nawab and others were raising a construction on the Shamlat Deh of the village, and to prevent them from doing so Azram filed a suit and obtained an interlocutary order as a result of which further construction was stopped. This case was pending and it was because of it that Nawab and others had a grudge against him and the others, which led them to cause the injuries to the deceased and the other two P. Ws.
6. One incised wound was noticed on Wadi Khan, deceased, while Iqbal Ahmad had a fire-arm injury on his right chest. Amir Hussain had also a stab wound on his stomach.
7. Apart from the admission of the appellants that ,Azram had filed a suit and obtained an injunction to restrain them from constructing the house, they denied the prosecution allegations and pleaded their innocence.
8. The trial Court while appraising the ocular testimony of Muhammad Azram (P. W. 1), Muhammad Saeed (P. W. 3), Amir Hussain (P. W. 4) and Iqbal Ahmad (P. W. 5) held that all of them were subjected to lengthy cross-examination, and it found no reason to doubt their testi money on the broad aspects of the case. It also held that their account was corroborated by the medical evidence. As for the recovery of knife at the behest of appellant Muhammad Salim, the trial Court did not place any reliance on it. In regard to the motive, the trial Court held that it was "far-fetched and remote", but that by itself was not consequential if otherwise the facts on record proved the guilt of the appellants. The trial Court also rejected the defence plea that there was delay in lodging the F. I. R. And that time was consumed in deliberations to implicate the appellants. As for the relationship inter se of the P. Ws. And the deceased and their animosity towards the appellants, the trial Court held that there cannot be a doubt that there was a dispute between the appellants Muhammad Azram, but his ocular testimony stood corroborated by the independent testimony of Muhammad Saeed against whom no motive or malice was established. As for the presence of Amir Hussain, who was a real brother of Azram and Iqbal Ahmad, the trial Court held that it could not be disputed as they were injured in the course of the transaction. The further fact which weighed with the trial Court was that Iqbal Ahmad had no enmity with the appellants. Concluding, the trial Court said that this relationship was not consequential in view of injuries sustained by the injured witnesses, and, therefore, there was no ground for discarding their testimony.
9. In the ultimate analysis, however, the trial Court was of the opinion that there was a probability of some provocation having been given by the complainant party which enraged the appellants and this became pivotal as to the manner in which the occurrence took place. The factor, which influenced most the mind of the trial Court, was that although Azram had direct enmity with the accused for having obtained an injunction, yet he was not the victim of an attack. The second reason being that having seen the appellants approaching them, they made no attempt to escape from there. Again the assigning of the part to Nazir for baving caught hold of Wadi Khan, who, had no animosity against him, and of allowing Nawab, an old man of 71, to cause him a stab-wound, was highly unnatural and improbable as it ran counter to the ordinary conduct of a human being of escaping from the evil of an attack rather than facing it with the probability of fatal consequences. The trial Court was of the opinion that they were already not on good terms and because of some provocation there was a sudden quarrel between them and the injuries were caused in the heat of passion. The element of premeditation was discredited on the ground that the injunction order was obtained a year earlier, and if this was the mainstay for the attack then they would have been belaboured much earlier. On this finding, the trial Court negatived the common object and proceeded to examine the culpability of each accused ; and convicted Nawab under section 302, P. P. C. As he was found to have caused the fatal blow to Wadi Khan despite his old age, which was not regarded as such a physical factor to disable him from doing so and he was sentenced to imprisonment for life. About Nazir, it was held tha t he had held the deceased in his arms and facilitated Nawab to cause the fatal blow, still there was no evidence to establish that he bad instigated him to use the knife, and, for that matter, it was also said that he might not have been aware of Nawab being armed with the knife. The highest culpability that could be attributed to him was of "aiding an ordinary as sault punishable under section 325, P. P. C".
He was, therefore, sentenced to undergo R. I. For seven years. Muzaffar Hussain and Muhammad Salim were both convicted under section 307, P. P. C. For causing grievous in juries to P. Ws. Amir Hussain and Iqbal Ahmad in the absence of any prior determination to kill either the deceased or to cause injuries to the P. Ws. Accordingly, they were sentenced to suffer R. I. For seven years. Riasat was acquitted as the trial Court held that the proverbial act such as lalkara was usually attributed to implicate innocent persons.
10. On appeal, the High Court upon appraisal of the evidence upheld the finding of the trial Court that there was no case for vicarious liability as because of the delay in lodging the F. I. R., there was a possibility of suppression of some kind as a result of which different colour was given to the version at the trial. As for the participation of the appellants, the High Court held that the defence counsel failed to make out a case for their acquittal as the presence of at least two injured eye- witnesses could not be denied. The specific parts attributed to the appellants were also accepted and it was further held that the incident arose out of some incident which happened earlier during the Kabaddi match and the occurrence did not take place in the manner as suggested by the prosecution. Nazir, who was earlier convicted under section 325, P. P. C. For having held the deceased was acquitted as apparently the High Court was not satisfied with the part attributed to him. While disposing of the revision petitions, the High Court expressed, in the context of the armed attack on the complainant party, that there was no likelihood that the venue such as where the fair was held would be selected to kill Wadi Khan in broad daylight in front of several hundred persons.
While upholding the conviction of others, the High Court remitted the fine imposed on Nawab as his two sons were each ordered to pay Rs, 5,000 to the two injured P. Ws. As Muzaffar Hussain and Muhammad Salim were on bail after their conviction, their sentences were modified to that which they had already undergone, but each of them was ordered to pay a fine of Rs, 5,000 which, if recovered, was to be paid as compensation to the two injured P. Ws. In equal shares. The acquittal of Riasat was maintained. With these modification, the appeal and revisions were disposed of.
11. On examining the evidence on record, and after taking into consideration its appreciation by the Courts below, we agree with the finding of the Courts below that despite enmity, it was not a premeditated attack, but a sudden quarrel as a result of some provocation given by the complainant party when they came across each other while returning from the fair. On this basis, there was no occasion for holding them liable for any vicarious liability and they were rightly convicted for the parts attributed to them. This conclusion is further strengthened by the fact that the injunction order was obtained a year before the incident, and, if at all, they were pre- determined to kill Azram or any of his companions they would have taken the revenge much earlier rather than in broad daylight at a place close to the fair within the view of many persons and the more-so when they lived in the same village and had the opportunity to take revenge. In this context, the argument that Azram should have been the victim loses significance as it was not a determined attack to kill any particular individual. The presence of Azram also cannot be denied as he was the person who arranged for the transportation of the three injured to at least three hospitals. This fact is not denied. Further, his presence is also established by the two injured witnesses whose evidence we have no reason to discard. As regards the delay in lodgng the F. I. R., we are of the view that it is not consequential. Azram has explained the delay by stating that the remind !Al of the injured persons to three different places had necessarily consumed time, and it was, therefore, that the F. I. R. Came to be lodged on the next day at 8-00 a. m. Be that as it may, nothing would turn on it, even if it be taken that there were other persons available who could have lodged the report, as the Courts below have given substantial benefit to the appellants by not taking into consideration the version imputed at the trial. There is also no occasion for holding that any of the appellants was falsely implicated. The Courts below acquitted the other two on the improbability of the parts assigned to them, and not on the ground of their false implication. We have not found any error in the appraisal of evidence so as to disagree with the conclusions of the Courts blow as to the participation of the appellants.
12. However, one question requires consideration, and, that is the offence committed by Nawab.
Upon the finding reached by the trial Court, in the peculiar facts of this case, that the fight was sudden as a result of the provocation given by the complainant party, Nawab could not have intended to kill Wadi Khan who was indirectly related to Azram against whom there was direct enmity. All that can be said is that he had caused the blow in the heat of the moment with such knowledge that it was likely to cause death. Accordingly, he could not be said to have the requisite intention to bring home the guilt under section 302, P. P. C. Therefore, his case is covered by Part II of section 304, P. P. C. In the result, while maintaining the convictions and sentences of the two appellants, we alter the conviction of appellant Nawab to one under section 304, Part II and substitute a sentence of 10 years' R. I. We also award a fine of Rs, 10,000 or in default to undergo R. I.
For three years. We further direct that he would be entitled to the benefit of section 382-B, Cr. P. C.
While computing his sentence. In this view of the matter, the question of enhancing his sentence does not arise nor is there any case for setting aside the acquittal of Nazir with the result that Criminal Appeal No, 69 of 1980 is dismissed. Criminal Appeal No, 70 of 1980 is also dismissed, but, subject to the above modifications.