' SAAD SAOOD JAN, J.---The appellants, Ghulam Muhammad and Rab Nawaz, together with Shah Jahan and Ata Muhammad, were tried by the Additional Sessions Judge at Sargodha on charges under sections 302 and 307, read with section 34, Pakistan Penal Code, for causing the death of Muzaffar Khan deceased and making murderous assault on Ghulam Mohammad and Sher Muhammad. The learned Additional Sessions Judge convicted Ghulam Muhammad and Rab Nawaz alone on charges under sections 302 and 307, Pakistan Penal Code. He acquitted Ata Muhammad of both charges and convicted Shah Jahan of an offence, under section 323 P.R.C. For the offence under section 302 P.P.C. He sentenced the two appellants to death and for the offence under section 307, PPC he sentenced them to suffer R.I. For a period of five years. He also directed them to pay fines.
2. The three convicts, namely, Ghulam Muhammad, Rab Nawaz and Shah Jahan, who were real brothers filed a joint appsal before the High Court against their convictions and sentences. The learned .Additional Sessions Judge also made a reference to the High Court for the confirmation of the death sentence imposed upon Ghulam Muhammad and Rah Nawaz, The complainant party filed a revision petition against the acquital of Shah Jahan and Ata Muhammad of the charge under section 302 P.P.C. The High Court dismissed the revision petition. It maintained the convictions of the appellants but reduced their sentences to imprisonment for life. Ghulam Muhammad and Rah Nawaz have by special leave come in appeal to this Court. The complainant party seeks leave to appeal against the reduction of their sentence. It may be mentioned that Shah Jahan has since died.
3. Both parties ate closely related and reside in Village Warchha within the jurisdiction of Police Station Genjial, District Sargodha. Marriages in their family took place by way of Watta. A nephew of Muzaffar Khan deceased was married to a sister of the appellants and by way of exchange a daughter of the deceased was engaged to Shah Jahan. Apparently, the nephew of the deceased was not getting on well with his wife; consequently she returned to the house of her parents and sought Talaq from her husband. By way of retaliation the deceased broke off the engagement of his daughter with Shah Jahan. This strained the relations between the parties. About six months prior to the occurrence there was a firing incident involving the parties. As a result a criminal case was registered. This case was still pending when the present occurrence took place. About 4 months before the present occurrence the deceased married his daughter who was formerly engaged to Shah Jahan to one of his nephews. According to the prosecution this marriage was the motive for the attack on the deceased.
4. There is a nullah in front of the house of the deceased. Apparently, this nullah was used by the parties to answer the call of the nature. The path from the house of the appellants to the said nullah passed in front of the house of the deceased.
5. As alleged by the prosecution, on the 11th of March, 1980, at about 8 a.m., the deceased went out of his house to pass water. Shah Jahan and Ata Muhammad who were present there started hurling stones at him: The deceased raised alarm which attracted his son, Sher Muhammad (P.W.
6), and his brother-in-law, Ghulam Muhammad (P.W. 7) to the spot. In the meanwhile, Rab Nawaz and Ghulam Muhammad appellants also arrived there. They were both armed with shot guns. They fired at the deceased who was hit. Rab Nawaz then fired at Ghulam Muhammad (P.W. 7) who too was hit. Then both the parties threw stones at each other" as a result of which Sher Muhammad (P.W. 6) and Ghulam Muhammad P.W. 7) as well as the two appellants and Shah Jahan were hurt.
During the fracas, Sher Muhammad (P.W. 6) and Muhammad Hayat, son-in-law of the deceased were able to snatch away the guns of the two appellants. A large crowd gathered at the scene of the occurrence whereupon the appellants and the co-accused ran away. The deceased and Ghulam Muhammad were taken to the Civil Hospital at Quaidabad but the deceased died on the way. The occurrence was reported at Police Station Ganjial by Sher, Muhammad (P.W. 7) at 930 a.m. The Police Station was 14 miles away from the village of the parties.
6. The post-mortem examination of Muzaffar Khan deceased showed that apart from two separate shot gun injuries, he had a lacerated wound on the neck and a bruise on the left fore-arm. Ghulam Muhammad (P.W. 7) and Sher Muhammad (P.W. 6) were also examined by a doctor. Ghulam Muhammad had six fire-arm injuries, two lacerated wounds and a bruise. Sher Muhammad (P.W.
6) had two bruises and a contusion.
7. The two appellants and Shah Jahan were arrested from a hospital on the very date of occurrence. Ghulam Muhammad had 9 Injuries, Rab Nawaz ha three lacerated wounds and Shah Jahan had four lacerated wounds on their bodies.
8. The appellants did not deny their participation in the occurrence b came out with a different version. Thus, at the trial Ghulam Muhammad stated:- "My brother Shah Jahan went to khola of Mian to ease to himself where he was assaulted and injured by Sher Muhaminad, Ghula Muhammad and deceased Mauzaffar. On alarm raised by him I rushed towards the spot to save him. When I was passing near the spot I was also attacked by the complainant party and was injured. In the meantime, sympathizers from both sides collected there and there was cross-firing. I also received gunfire injury. Rab Nawaz made a similar statement. In his defence Ghulam Muhammad examined a doctor to show that one of the injuries received by him was the result of gunfire.
9. In support of its case the prosecution mainly relied on the ocular testimony provided by two eye- witnesses, namely, Sher Muhammad (P.W. 6) and Ghulam Muhammad (PW. 7). As already mentioned both were closely related to the deceased: Sher Muhammad (PW. 7) was a son of the deceased while Ghulam Muhammad (P.W. 7) brother of the wife of the deceased. They were both found bearing injuries immediately after the occurrence. Thus their presence on the spot at the relevant time admits of no doubt. Similarly, the two appellants also bore injuries on their persons.
They did not deny their participation in the currence. But then they had their own story to tell. Thus, it is a case of two versions.
10. There are certain features of the evidence which do not appear to have been noticed by the High Court and the trial Court. The relations between the parties had been strained for quite some time on account of the marriage between the nephew of the deceased and the sister of the appellants. There already had been a firing incident and a case registered in respect of that incident was pending in a Criminal Court. There can be thus little doubt that feelings were running high between the parties at the time of the present occurrence.
11. According to the eye-witness account the deceased left his house just before the occurrence to pass water. Neither of the two eye-witnesses was able to tell as to what happened just before they heard the cries of the deceased. They only saw Shah Jahan and Ata Muhammad hitting him with stones. It was also their story that the two appellants reached the scene after the occurrence started. It may be mentioned that the appellants lived at a short distance from the place of occurrence; their house was 60/70 feet away from the mosque that was located just behind the house of the deceased (See the statement of the Investigating Officer). Considering that the parties lived in close neighbourhood, Shah Jahan and Ata Muhammad were not armed with any weapon when the occurrence started and the two appellants arrived on the spot only after the deceased had raised the alarm, it seems that it was a case of a sudden flare-up.
12. Both parties were hurt during the course of occurrence. From the side of the complainant party, the deceased as well as Ghulam Muhammad (PW. 7) had received gunshot wounds. Similarly, from among the accused party Ghulam Muhammad had a firearm injury on his left hand. Although the learned counsel for the complainant party disputed that Ghulam Muhammad appellant had received any firearm injury, the statement of the Radiologist (P.W. 1) who examined him while he was in police custody leaves no room for doubt in the matter. It would thus appear that both pai ties had firearms with them and they had used them during the course of occurrence. It was the case of the prosecution itself that during the course of the occurrence Sher Muhammad (P.W. 6) and his brother-in-law Muhammad Hayat had flung stones at the accused party. Most of the injuries suffered by the two appellants and Shah Jahan were on their heads.
13. From the above-noted features of the evidence it seems to us that the occurrence started suddenly without any premeditation when the deceased went out of his house to pass water and met a member/members of the accused party who were also present or had come there, perhaps, for the same purpose. The encounter led to an affray which attracted the eye-witnesses and the appellants who all lived in the same neighbourhood. Both parties had fire-arms with them. Due to the tension that was already prevailing between them they started throwing stones and firing at each other in the heat of the moment. We can discover no basis for holding that the appellants indulged in firing or hurling of stones merely to defend themselves. However, we consider that their case is covered by Exception 4 to section 300, P.P.C. Which states that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. For the purpose of this exception, it is immaterial, as the explanation appended to this provides, to determine which of the parties had offered the provocation or committed the first assault. Accordingly, we would set aside the convictions and sentences of the appellants for the offences under sections 302 and 307, P.P.C. And instead convict them of an offence under section 304, Part I, for causing the death of Muzaffar Khan, deceased, and under section 308 for making murderous assault upon Sher Muhammad (P.W. 6) and Ghulam Muhammad (PW. 7). In this case the provisions of section 34 are clearly attracted. For the offence under section 304, P.P.C., we would sentence them to rigorous imprisonment for a period of 10 years and a fine of Rs, 1,000 each; in default of payment of fine they shall further undergo rigorous imprisonment for a period of three months. For the offence under section 308, P.P.C. We would sentence them to suffer rigorous imprisonment for a period of three years and a fine of Rs, 500 each; in default of payment of fine they shall further suffer rigorous imprisonment for a period of three years and fine of Rs, 500 each; in default of payment of fine they shall further suffer rigorous imprisonment for a period of one month. This appeal is disposed of accordingly and the criminal petition preferred by the complainant party is dismissed.