1. ' JAVID IQBAL, J.--After hearing learned counsel in both the above connected petitions we convert these petitions into appeals and since counsel for the parties as well as learned counsel for the State are present, we proceed to dispose them of as follows: ' Criminal Appeal arising out of Criminal Petition No,58-R of 1987 has been filed by Shehzad appellant against his conviction and sentence, whereas Criminal Appeal arising out of Criminal Petition No,42-R of 1987 has been filed by Mst. Akbar Jan appellant, mother of the deceased in the instant case for enhancement of sentence awarded to Shehzad and against the acquittal of Mushtaq Ahmad and Mukhtiar co-accused. Since these appeals are connected, these were taken up together.
2. ' Briefly the facts are that Shchzad, Mushtaq Ahmad and Mukhtiar all brothers and respondents in Criminal Appeal arising out of Criminal Petition No,42-R of 1987 were tried under section 302/307/34, P.P.C. For committing the murder of Tariq Mahmud deceased and murderous assault on Liaqat Ali PW by the Additional Sessions Judge Attock who vide judgment dated 11th February 1985 acquitted Mushtaq Ahmad and Mukhtiar but convicted Shchzad under section 304, Part I, P.P.C. And sentenced him to imprisonment for life plus fine of Rs.20,000 or in default to undergo further R.I. For a period of two years. It was further directed that the fine if realised should be paid to the heirs of the deceased as compensation. He was allowed benefit under section 382-B, Cr.P.C.
3. And was acquitted of the charge under section 307/34, P.P.C. Feeling aggrieved Shchzad filed an appeal against his conviction and sentence and on the other hand Mst. Akbar Jan, mother of the deceased filed a revision petition for conviction of Shehzad under section 302, P.P.C. And enhancement of his sentence as well as against the acquittal of the two co-accused. A learned Single Judge of the Lahore High Court, Rawalpindi Bench dismissed the revision petition filed by Mst. Akbar Jan but maintaining the conviction of Shehzad under section 304, Part I, P.P.C. Reduced his sentence from imprisonment for life to ten years' R.I. The sentence of fine and other directions given by the trial Court were however maintained. At present before us as stated above, Shehzad has challenged his conviction and sentence vide judgment of the High Court whereas Mst. Akbar Jan has moved this Court for enhancement of his sentence as well as against acquittal of the two co-accused. The main point which requires decision in this case and for which we granted leave in both these petitions is as to whether in the circumstances of this case the correct section applicable was section 302, P.P.C. And that if section 304, Part I, P.P.C was applied by the trial Court then as to whether the sentence awarded by the trial Court under the aforesaid section of life imprisonment should have been maintained by the High Court as no ground was shown for the reduction of the same to ten years R.I.
4. ' Coming to the facts, these arc that Shchzad and Mukhtiar were armed with guns and Mushtaq Ahmad was empty-handed. According to the prosecution version, at 6-30 a.m. On 2nd November, 1983 the occurrence took place in the field in front of the house of Tariq Mahmud deceased situate in village Ratwal, Tchsil Fatch Jang, District Attock. The F.I.R. Was lodged by Tariq Mahmud himself while he was still alive. He got his statement recorded in the hospital on the same day at 8-35 a.m.
5. By Abdur Rashid A.S.I. And he died at 9-45 a.m. Thereafter. The recoveries in this case are of no consequence as although fire-arm was recovered at the instance of Shehzad, no crime empty was picked up to match with the same. According to the medical evidence the deceased had one blackened fire-arm injury on the left side of the chest. Thus-it appeared that he was shot at from very close range and the death had resulted from a single shot attributed to Shehzad. The prosecution produced two eye-witnesses of the occurrence, namely Liaqat Ali P.W. Maternal cousin of the deceased and Akbar PW (son of Sher Khan) paternal uncle of the deceased. Another Akbar son of Nawab was not produced.
6. ' The motive of the occurrence was that there was a dispute over land between the accused party on one side and Suleman maternal uncle of the deceased on the other. As a consequence of this dispute an altercation took place a day before the occurrence i.e, on 1st November, 1983 between Shabbir son of Suleman (Mamoonzad of the deceased and real brother of Liaqat Ali PW) and two of the accused namely Shehzad and Mukhtiar. The present occurrence had taken place in the background of this motive. The prosecution case is that the deceased came out of his house for making the call of nature. He saw that in front of his house in the field Shehzad and the two acquitted co-accused were exchanging hot words with Liaqat All PW. Shehzad and Mukhtiar were armed with guns and Mushtaq Ahmad was empty-handed. The deceased in order to effect settlement between them went towards them. When he reached near them, Mushtaq Ahmad raised a Lalkara that both he and Liaqat Ali should he finished, as a result of which Shchzad fired a shot which hit the deceased on his left flank and he fell down. The second shot was fired by Mukhtiar at Liaqat All but he was not hit. The occurrence was also witnessed by-Akbar son of Sher Khan PW and another Akbar not produced.
7. ' The Courts below did not place reliance on the statement of the deceased on the basis of which F.I.R. Was registered and which was subsequently treated as dying statement. They were also of the view that the two eye-witnesses produced did not state the whole truth. Furthermore they had doubted the presence on the spot of Mushtaq Ahmad and Mukhtiar. According to the prosecution version there existed a direct enmity between Liaqat All PW and the accused party but the accused party did not cause any harm to Liaqat All P.W. However the shot had hit the deceased who reached the spot when the altercation was going on between the accused party and Liaqat All P.W.
8. Then Liaqat All PW was allegedly fired at from a very close range by Mukhtiar but he did not receive any injury and the case of the prosecution further was that none of the accused made any attempt to fire again at Liaqat All P.W. In the light of this evidence on record the conclusion arrived at by the trial Court and the High Court was that initially hot words were being exchanged between Shehzad and Liaqat Ali P.W. The deceased came there per chance to intervene and in the heat of passions a shot was fired at him by Shchzad which led to his death. Their further conclusion was that the presence of Mushtaq Ahmad and Mukhtiar on the spot was doubtful for if Mukhtiar had been present alongwith a gun he was in a position to cause injuries to Liaqat Ali PW' or further injuries to the deceased. It was in this background that the trial Court acquitted Mushtaq Ahmad and Mukhtiar co-accused but held Shchzad guilty for committing the murder of the deceased in a sudden flare up or in the heat of passions without any 'premeditation or preparation as admittedly there was no evidence on the record of the existence of any enmity between Shehzad and the deceased. With this assessm ent of evidence the trial Court convicted Shehzad under section 304, Part I, P.P.C. And sentenced him to imprisonment for life plus fine. On appeal the High Court had upheld the judgment of the trial Court and while maintaining the conviction of Shehzad under section 304, Part I, P.P.C. Reduced his sentence to ten years' R.I. For the reason that the sentence awarded to him was harsh and undeserved and that since there was no enmity between Shchzad and the deceased, the occurrence had taken place without any premeditation, and therefore the sentence awarded to Shchzad was liable to be reduced.
9. ' The argument of learned counsel for Mst. Akbar Jan appellant in the appeal arising out of Criminal Petition No,42-R of 1987 is that even if it could be considered that some altercation was going on between Shehzad and Liaqat Ali P.W. When the deceased who was Mamoonzad of Liaqat Ali P.W.
10. Had gone there and intervened, and that in the course of the altercation Shehzad had fired a shot at the deceased from close quarters which led to his death, the case still would not fall under any of the exceptions available under section 300, P.P.C. So as to record the conviction of Shchzad under section 304, Part 1, P.P.C. According to learned counsel the conviction should have been recorded under section 302, P.P.C. And if it was a result of a sudden flare up, instead of death sentence life imprisonment could have been awarded under section 302, P.P.C. It was further argued that on appeal there was no justification on the part of the High Court to reduce the sentence from life imprisonment to ten years' R.I. On the ground that it was harsh and undeserved and that the occurrence had resulted from a sudden flare up, while maintaining his conviction under section 304, Part I, P.P.C. Learned counsel further submitted that according to the eye- witnesses' account the two co-accused of Shehzad had also participated in the occurrence and they should have not been acquitted. Learned counsel for Shehzad appellant in appeal arising out of Criminal Petition No,58-R of 1987 tried to make out a case that some unknown assailant had murdered the deceased in the early hours of the morning and that Liaqat Ali P.W. As well as father falsely involved Shehzad and his brothers due to enmity. This argument had also been advanced on behalf of Shehzad before the trial Court and the High Court but was rightly rejected as misconceived.
11. After hearing learned counsel for both the sides and perusal of the record it is evident that although the occurrence was not premeditated and was a result of sudden flare up, since the deceased was empty handed, it could not fall under any of the exceptions of section 300, P.P.C. To justify conviction of Shehzad under section 304, Part 1, P.P.C. The correct section which could have been applied was 302, P.P.C. Although sentence of life imprisonment could have been awarded thereunder as there existed no enmity between Shehzad and the deceased and the occurrence was a result of sudden flare up. But we note that the trial Court while applying section 304, Part I, P.P.C. Had awarded the sentence of life imprisonment plus fine etc. To Shehzad. Obviously in the circumstances of the case, no case on merits was made out for reduction of the sentence of imprisonment for life to 10 years' R.I. To Shehzad. We therefore set aside the judgment-of the High Court and restored the sentence of life imprisonment plus fine awarded to Shehzad by the trial Court under section 304, Part I, P.P.C. As a result the appeal of Shehzad arising out of Criminal Petition No,58-R of 1987 is hereby dismissed but appeal of Mst. Akbar Jan arising out of Criminal Petition No,42-R of 1987 is partly allowed as against Shehzad only, but it is dismissed in respect of Mushtaq Ahmad and Mukhtiar co-accused-respondents.