MIAN BURHANUDDIN KHAN, J.--These two petitions arise out of the impugned judgment/orders of the Lahore High Court both, dated 20-9-1980.
The accused /petitioner Muhammad Iqbal, his brother Muhammad Irshad and their father Feroze Din were tried by the learned Additional Sessions Judge, Sahiwal, for committing the murder of Jamshed deceased on 6-9-1976 at about 5-30 p. m. In the area of Chak 151/9-L Police Station, Dera Rahim, District Sahiwal. Muhammad Iqbal accused /petitioner was convicted under section 302 read with section 34, P. P. C. And sentenced to death and fine of Rs.4,000; while Muhammad Irshad and Feroze Din were also convicted under the same sections and were sentenced to imprisonment for life and fine of Rs.2,000 each vide judgment, dated 4-7-1979. On appeal, the learned High court Judges modified the said judgment to the extent that death sentence, awarded to Muhammad Iqbal was not confirmed and instead he was awarded, life imprisonment, maintaining the fine imposed by the learned trial Court, and conviction and sentence of Muhammad Irshad and Feroze Din were set aside and they were acquitted vide the impugned judgment and orders, dated 20-9- 1980.
2. Now by Criminal Petition for Leave to Appeal No. 549 of 1980 Muhammad Ismail seeks leave to appeal against the impugned judgment praying for setting aside the acquittal of the two accused namely Muhammad Irshad and Feroze Din, and for awarding death sentence to Muhammad Iqbal respondent No.1; whereas by Criminal Petition for Leave to Appeal 553 of 1980 Muhammad Iqbal accused/ petitioner seeks leave to appeal against the sentence of life imprisonment awarded to him by the learned High Court. This order will dispose of both these petitions.
3. The parties in the case fell out over the drain water which was overflowing due to choking of the drain. The complainant Muhammad Ismail P-W.7 was cleaning the drain to which Feroze Din and Muhammad Irshad acquitted accused objected on the ground that the sullage water would get accumulated in front of their Khata in the street where they used to park their bullock cart, which resulted in verbal altercation between them. Ismail P.W.7 started towards his house alongwith his Kassi; when he reached in front of the common Deorhi of the Khata Muhammad Iqbal accused/ petitioner also came there followed by deceased Jamshed and Muhammad Ashraf P.W.8.
Thereafter exchange of fist blows started between the parties, the accused on the one side and Jamshed deceased and P.Ws. On the other. Muhammad Iqbal, accused /petitioner, at the instance of his other two companions, went to his house, came out with a gun and fired at Jamshed deceased hitting him effectively with the second shot, Jamshed succumbed to his injury after about 20/30 minutes. His body was removed to the hospital. Muhammad Ismail complainant proceeded to the Police Station Dera Rahim and lodged the F.I.R. Exh.P.D.
4. The prosecution case is supported by Muhammad Ismail P. W.7 as he is the complainant and ocular witness of the occurrence. Muhammad Ashraf P-W.8 and Mst. Alam Bibi P.W.9 also gave ocular account of the occurrence.
5.Dr. Muhammad Ismail P. W.5 conducted the post-mortem examination on the dead body of Jamshed and found a circular fire-arm wound 2" in diameter x going deep with multiple small pellet wounds around on the left side of chest. In the opinion of the doctor death was due to shock and internal haemorrhage caused by the said injury which he found to be sufficient to cause death in the ordinary course of nature.
6. The accused, when examined under section 342, Cr, P. C. Came out with a counter-version of the case which is, briefly, to the effect that the drain water was coming out from the house of Muhammad Ismail who was cleaning the said drain by broadening it towards their Khata to which they objected whereupon he abused them and thereafter there was altercation between them which attracted many persons of the locality; Muhammad Ismail was sent to his house by the people who had gathered there, but shortly afterwards he, alongwith his son Jamshed, armed with Sotas, came, stood in front of their house and started abusing them; Muhammad Iqbal and Muhammad Irshad also came and requested them not to create any trouble and abstain from abusing them but Jamshed deceased and Muhammad Ismail started giving them blows with Sotas; Muhammad lqbal, after having received Sots blow at the hands of the deceased, rushed to his house, brought his licensed gun and in order to scare away the complainant party, fired in the air; Muhammad Iqbal loaded the gun in order to fire again to ward off the attack; the deceased Jamshed caught hold the barrel of the gun and tried to snatch it from Muhammad Iqbal, and in the process, the gun went off which hit Jamshed deceased.
7. Learned counsel for Muhammad Iqbal accused /petitioner in Cr. P. L. A. No. 553 of 1980 contended that the deceased and his companions had opened the attack on the accused /petitioner with Sotas and this fact is borne out by the injuries caused to the accused/ petitioner; that the counter- version of the accused /petitioner finds support from the facts of the case narrated in his statement; that the medical evidence also supports this version; that there is no reason for the High Court to deny the petitioner's right of self-defence; that the learned High Court Judges have wrongly placed reliance on the testimony of the eye-witnesses in this case as Mst. Alam Bibi was not mentioned in the F.I.R. And the other two witnesses namely Muhammad Ismail P.W.7 and Muhammad Ashraf P. W.8 are 'interested' and had a motive to falsely implicate the accused /petitioner; that it has been rightly held by the learned High Court that it was a sudden affair and that Muhammad Iqbal accused /petitioner had not brought his gun on the exhortation of his father Feroze Din the acquitted /accused; and in this view of the matter it could not be said that the accused /petitioner had, in any way, exceeded his limit; the learned High Court Judges have observed that the accused /petitioner was provoked on account of the injuries caused to his father and brother; and that after this finding the learned Judges should have given complete right of self-defence to the accused/ petitioner.
8. We have gone through the evidence, the judgment of the learned trial Court and the impugned judgment of the learned High Court, and find that the ,learned Judges have made elaborate assessm ent of the prosecution evidence and have given maximum benefit to the accused/ petitioner, that from the circumstances of the case it appears that Muhammad Iqbal the accused/ petitioner has not only exceeded his right of self-defence but he used a gun without any real apprehension to his life or that of his companions, the acquitted accused. We find no reason to interfere with the impugned judgment. Leave refused in Cr.P.L.A. No. 553 of 1980. Petition dismissed.
9. As regards Cr.P. L. A. No. 549 of 1980 the arguments of the, learned counsel are that the learned High Court Judges were wrong to hold that Feroze Din and Muhammad Irshad the acquitted accused did not share the common intention of Muhammad Iqbal accused/ petitioner; that it is in evidence that Muhammad Iqbal, after the altercation, went home and brought out a gun and fired at the deceased; that after the deceased escaped the first shot, he re-loaded the gun and fired again; that, therefore, the act of the accused /petitioner was brutal, deliberate and intentional, and he was rightly convicted and sentenced to death by the learned trial Court and the learned High Court Judges have erred in reducing his sentence from death to life imprisonment. We are not inclined to accept these arguments. It was held by the learned Judges that it was a sudden fight in which the parties were exchanging fists and Sota blows. It was Muhammad Iqbal accused who went home, brought out a gun and fired at the deceased from a very close range and, therefore, he was rightly held liable for causing the death of Jamshed deceased. We find no merit in Cr. P. L. A.
No. 549 of 1980. Leave refused. Benefit of section 382-B, Cr.P.C. Extended to Muhammad Iqbal accused/ petitioner (in Cr.P.L.A. No.553 of 1980). With this observation this Criminal Petition for Leave to Appeal No 549 of 1980 is also dismissed.