ABDUR REHMAN KHAN, J.---. Fazli Rabbi appellant No.1 was convicted for the murder of Sahar Gul and was sentenced to imprisonment for life under section 302/34, P.P.C. This appellant was also found guilty under section 323/34, P.P.C. For causing simple hurt to the complainant Ashraf Gul and on conviction was sentenced to one year's R.I. Tilawat Shah alias Tila appellant No.2 was convicted under section 307/34, P.P.C. For effective murderous assault over Mst. Khattaka and was given ten years' R.I. In case of the first appellant his sentences were ordered to run concurrently. The two appellants have preferred this appeal to challenge the legality and correctness of the impugned judgment.
2. The incident was reported by Ashraf Gul (P.W.4) on 17-12-1987 at 7-15 a.m. And the contents of the F.I.R. Are that the complainant and his son Sahar Gul (deceased of this case) were loading maize crop in the cart outside their house. In the meantime the two appellants and Fazli Nabi accused (who died natural death before the case was put in Court and the case tigainst whom abated), came armed with fire-arm and started giving the complainant stick blows which hit him on his head. During this time Mst. Khattaka came out of the house who and her son Sahar Gul tried to rescue him but Fazli Rabbi fired at Sahar Gul who was hit and fell down while with the shot of Tilawat Shah appellant No.2, Mst. Khattaka received fire-arm injuries. The accused then decamped because of the row of the villagers. Sahar Gul died on the spot. Said Gul father and Sharif Gul brother of the complainant were named as eye-witnesses. An altercation over children between the deceased Sahar Gul and Fazali Nabi, deceased-accused 3/4 days before the incident was described as motive for the offence.
3. Reference to the relevant evidence produced in the case would be necessary for its proper appreciation. Kiramat Shah P.W.2 is a witness to the recovery memo. Exh.P.R./1 through which blood-stained earth, two empties of 7.62 bore and three empties of .12 bore were taken into possession. Shahbaz Khan who appeared as P.W.3, is a witness to the recovery memo. Exh. P.R.
Whereby various clothes of the deceased, brought from the mortuary, were taken into possession.
The complainant Ashraf Gul was examined as P.W.4 who while giving the relation of the accused and the P.Ws., stated that appellant No.1 Fazli Rabbi is the father of dead accused Fazli Nabi while appellant No.2 Tilawat Shah is the nephew as well as brother-in-law of Fazli Rabbi. P.W. Sharif Gul - was brother of the witness and P.W. Said Gul' was his father. Disclosing the main events it was stated that at 7-15 a.m. He and his son the deceased were putting the maize crop in the cart in front of their house when the two appellants alongwith the dead accused Fazli Nabi armed with fire-arm and Lathi came there and gave them beating with Lathi as a result the P.W. Was injured on his head. In the meantime his were Mst. Khattaka came out of the house and remonstrated against the cruelty. The accused then resorted to firing, Fazli Rabbi fired at Sahar Gul, which hit him. The other appellant No.2 fired at P.W. Mst. Khattaka who received injuries but the shot of the dead accused proved ineffective. He recorded his report to a Police Officer who arrived at the spot.
Motive was disclosed an exchange of hot words few. Days before the occurrence between Sahar Gul and Fazli Nabi. The next witness who gave ocular account is Mst. Khattaka who appeared as P.W.5. According to her statement on the morning of the happening she was in her house while her husband P.W. Ashraf Gul and her deceased son Sahar Gul were busy loading maize crop in the cart outside the house. On hearing the noise she went outside her house and noticed her son and husband being beaten by the two appellants and the dead accused. She complained of this beating and saw that with the shot of Fazli Rabbi her son Sahar Gul received injuries who expired on the spot while she was hit with the fire shot of the appellant No.2. She was then taken to the hospital for medical examination. P.W.6 Muhammad Sher Khan, S.I. Has partly investigated the case, on receipt of the Murasila he registered the case through F.I.R. Exh. PA. He prepared the site plan Exh.
P.B. At the time of spot inspection. He made the recoveries of blood--stained earth, two empties of 7.62 bore and 3 empties of .12 bore from different points of the spot. He cart having maize crop was also taken into possession. He effected the arrest of the two appellants and Fazli Nabi on 19-12-1987 and then submitted complete challan in the case. Badam Gul, A.S.I. Appearing as P.W.7 stated that while on Gusht he reached the spot and recorded the report of the complainant there. He then prepared the injury sheets of the complainant and his were Mst. Khattaka and similarly the injury sheet and inquest report of the deceased were prepared and sent the dead body of the deceased to the mortuary. On arrival of the S.H.O. The investigation of the case was handed over to him. P.W.8 is Dr. Mubarak Hussain who on examination of P.W. Ashraf Gul detected the following injuries: (1)Lacerated wound over volt of skul 1-1/2" x 1/6".
(2)An abrasion just above right eye brow 1/2" x 1/2".
(3)A contusion over dorsam of left hand 1" x 1".
He also conducted post-mortem examination on the dead body of the deceased Sahar Gul and found the following fire-arm injuries on external examination: Wounds. An entrance wound of fire-arm over the back of lower part of left chest 3/4" x 3/4".
(2)An exit wound of fire-arm over the front of lower chest over xiphoid process 1" x 1" corresponding to wound No. 1.
Lady Dr. Rukhsana Rubi (P.W.9) examined Mst. Khattaka on 17-12-1987 at 7-50 a.m. And found the following injuries on her person:-- (1)Fire-arm inlet wound of about 1/6" x 1/6" on the medial side of right thigh.
(2)A wound of about 2" x 2-1/2" x 2-1/2" on the back of thigh.
4. Both the appellants when examined under section 342, Cr.P.C., pleaded complete innocence and their absence at the time of occurrence, however, both of them referred to a quarrel between Sharif Gul, Ashraf Gul, Sahar Gul deceased and Sultanai on one side and Fazal Nabi since dead and Mst. Afnana on the other side. Both of them declined to appear in their defence as their own witness in disproof of the charge under section 340, Cr.P.C.
5. The learned counsel appearing for the appellants at the very outset submitted that he would neither argue for complete acquittal of the appellants on the basis of benefit of doubt in proof of the charge or on the line of self-defence or on the plea of cross-case. However, the learned counsel very ardently and earnestly stressed that the case of appellant No.1 would fall under section 304, Part-1, P.P.C. While that of appellant No.2 will be punishable under section 308, P.P.C. In view of the applicability of exception 4 to section 300, P.P.C. On account of the facts and circumstances of the case. He was of the view that all the ingredients embodied in the said exception are fully applicable in case of his client and, therefore, he requested for conversion of conviction of appellant No.1 from section 302, P.P.C. Into section 304, Part 1, P.P.C. And that of appellant No.2 to section 308, P.P.C. And reduction in the sentences of both the appellants. In other words the view point of the learned counsel was that it is apparent on record that the offence was committed without pre-arranged plan, was the result of sudden fight which had occurred in the heat of passion upon a certain quarrel and the offender had never taken undue advantage nor had acted in a cruel or unusual manner. In this context it was submitted that it is in the statement of P.W. Ashraf Gul. `We fought with each other for about 20 minutes and after 20 minutes of our quarrel accused started firing at us. Accused Tila and Fazli Nabi were armed with shotguns whereas accused Fazli Rabbi was armed with a Kalashnikov'. On the basis of this statement it was argued that had the murder and attempted murder been pre-planned then fire-arm would have been used at the first instance. The conviction of appellant No.1 under section 302/34, P.P.C. And 323/34, P.P.C. Was also objected on account of the acquittal of the other appellant of these charges and that section 34, P.P.C. Does not apply. The learned Advocate-General opposed these submissions and supported the impugned judgment.
6. The learned counsel is oblivious of the fact that in order to avail the benefit of exception 4 to section 300, P.P.C. It is necessary that the terms of the exception must co-exist and all the ingredients of this exception must be established. In case any of the essential is lacking then no benefit of the exception can be extended. It is not sufficient to prove that the attack was unpremeditated and happened in heat of passion taut it is also to be established that it occurred in sudden fight and the offender did not take undue advantage over the victim. It must further be satisfied that the accused neither acted in cruel nor in unusual manner. If the evidence and the materials in this case are treated on this standard then it would negative the contention of the learned counsel for the appellants. It is in the F.I.R. That while complainant Ashraf Gul and his son were loading maize crop in the cart outside their house then at that time the two appellants alongwith dead co-accused appeared there armed with fire-arm and they first resorted to blows with sticks and then Fazli Rabbi fired at the deceased and Tila fired at P.W. Mst. Khattaka. The same version is repeated in the evidence of the two eye--witnesses and P.W. Ashraf Gul has attributed Kalashnikov to Fazli Rabbi while the other two accused were allegedly armed with .12 bore shotguns. This position was not refuted in the argument on behalf of the appellants but it was urged that according to the statement of Ashraf Gul referred to earlier that before the firing there was quarrel for about 20 minutes between the parties and the appellants resorted to firing, therefore, it was argued that there was no element of premeditation in the matter and that the deceased and the P.Ws. Were fired at in a sudden fight in the heat of passion. This is not correct factual position as the record does not support it. It cannot be denied that the appellants and the dead accused had gone armed with deadly weapons to the spot which was in front of the house of the deceased and it is not proved on record that either the deceased or any of the P.Ws. Were armed even with a club leaving aside any dangerous weapon. The mere fact that when the appellants attacked the deceased and the P.W. The latter exchanged hot words with the appellants and during that altercation or quarrel which ensued between them some exchange of hot words or excitement would not negate the element of pre-planned attack nor it can be said that deadly weapons were used in the sudden fight or in the heat of passion because such an alleged quarrel can neither be described as sudden nor it can be said to have occurred in the heat of passion. The word sudden naturally implies that it had no pre-arranged element but how can the instant alleged quarrel be termed as sudden when it was in contemplation of the appellants after the earlier altercation 3/4 days before the present occurrence. It is not proved that any of the P.Ws. Was having any lethal weapon and on the other hand it cannot be' disputed that the appellants were armed with dangerous weapons which they in fact used, therefore, the appellants must be held to have taken undue advantage and had acted in a cruel and unusual manner.
Premeditation can either even be proved from direct evidence or by circumstantial evidence and can also be inferred from previous ill-feeling and use of dangerous weapons as against less harmless weapons and in the present case prosecution has been able to prove pre-arranged attack by the appellants from all these facts and in absence of establishing the ingredient of exception 4 to section 300, P.P.C. By the appellants the onus of which was on them, we are of the opinion that the appellants cannot claim benefit of this exception. Moreover, the prosecution has neither built its case on these lines during the trial nor has laid any foundation in the evidence for such an arguments. Both the appellants have rather stated in their statements under section 342, Cr.P.C. That they were not present on the spot. The learned counsel also referred to some evidence on record to prove that a cross-case was I also registered but neither the F.I.R. Nor any other document from the file of that cross-case has been placed on this record. So, in absence of any legal evidence on the present record we would not be able to appreciate and consider this point and moreso when the learned counsel himself did not seriously argue this aspect of the case but confined his address to the benefit of exception 4 to section 300, P.P.C. Which, according to him, was available to the appellants. The learned trial' Judge has not believed that the appellants committed the offence on account of common intention and he, therefore, held each of them liable for his individual C act as is apparent from the impugned judgment. Therefore, the addition of section 34, P.P.C. Either to section 302 or 323, P.P.C. In case of appellant No.1 or to section 307, P.P.C. In case of appellant No.2 would neither affect the merits of the case nor can be described as illegality or irregularity which can be said to have prejudiced the appellants or to have adversely affected the proceedings. The guilt of the appellants has been fully established by the prosecution through natural, E consistent and confidence-inspiring evidence of the two injured witnesses whose deposition was not seriously challenged before us.
7. In view of the above discussion we find no legal or factual flaw in the impugned judgment of the trial Court and accordingly dismiss this appeal.