1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave' of the Court by the complainant side is directed against the judgment of the High Court in a case of murder; whereby, the conviction of Muhammad Iqbal, accused-respondent was altered from section 302, P.P.C. And he Has convicted under section 304, Part II, P.P.C. With a sentence of seven years R.I. And fme of Rs.5,000. There were other alterations in convictions and sentences which are fully described in the order for grant of leave to appeal, which rcads as follows:- 'Petitioner seeks leave to appeal from the judgment of the Lahore High Court, Rawalpindi Bench dated 31-1-1989 passed in Criminal Appeal No.88 of 1986 and the orders of the same High Court passed in Criminal Revisions Nos.137 of 1986 and 16 of 1987 in the following circumstances: Muhammad lqbal, Muhammad Sarfraz, Karam Ilahi, Muhammad Aziz, Sultan Sikandar, Ghulam Haider, Sultan Khan, Sher Ali and Dost Muhammad, the respondents, were tried for the murder of Muhammad Aslam and for causing injuries to Ahmad Khan, complainant, P.W.11, Mst. Lrshad Begum, P.W.12, Muhammad Pervez, P.W.13, and Sajid Mahmood (given up P.W.) by the Additional Sessions Judge, Chakwal, who by the judgment, dated 19th July, 1986, convicted Muhammad Iqbal and Muhammad Sarfraz under section 302, P.P.C. And awarded life imprisonment with fine of Rs.6,000 each with provision for default and compensation. Karam Elahi, Muhammad Aziz and Sultan Sikandar were convicted under section 307, P.P.C. And were to undergo R.I. For 5 years and to pay a fine of Rs.1,000 each and also providing R.I. In default of payment of fine. Ghulam Haider, Sultan Khan and Sher Ali were convicted under section 323, P.P.C. And awarded R.I. For two years each and a fine of Rs.5,000 with the default proNision. They were also convicted under section 323 and awarded R.I. For one year and a fine of Rs.300 each and in default ordering two months' R.I. Each. Under both 'the abovementioned convictions the fine, if recovered, was ordered to be paid to the injured P.Ws. Dost Muhammad was acquitted.
2. 3.The respondents appealed to the Lahore High Court, Rawalpindi Bench. State also riled criminal revision for enhancement of the sentence upon Muhammad Iqbal and Muhammad Sarfraz.
3. Ahmad Khan, complainant, also filed a revision petition against the respondents for enhancement of the sentences.
4. 4.A learned Single Judge in the High Court partly accepted the appeal of Muhammad Iqbal by altering his conviction. He acquitted Sultan Sikandar, Karam Elahi, Muhammad Sarfraz and Muhammad Aziz and maintained the convictions and sentences awarded to Ghulam Haider, Sultan Khan and Sher Ali under section 325 read with section 34 and section 323 read with section 34, P.P.C. So far as Muhammad lqbal is concerned he held that Muhammad lqbal, respondent No.l, exceeded the right of self-defence by firing at the deceased, Ahmad Khan, complainant and Mst.
5. Irshad Begum. Accordingly, his conviction was altered to one under section 304, Part II, P.P.C. And he was awarded seven years R.I. And a fine of Rs.5,000 or in default thereof one year's R.I. The fine, if recovered, was ordered to be paid to the heirs of Muhammad Aslam, deceased as compensation.
6. All the convicts were given the benefit of the provision of section 382-B, Cr.P.C. The acquittal of Dost Muhammad was maintained.
7. 5.Separate revisions filed by the State and the complainant, Ahmad Khan, were dismissed.
8. 6.According to the F.1 R. Lodged by Ahmad Khan, P.W.1, he was watering his buffalo at the village pond on 27-11-1984 at 4-00 p.m. His nephew Muhammad Pervez. P.W.13. Was returning to the village on his tractor. When he reached the front of the Baithak of Muhammad Iqbal, respondent-1, all the nine respondents came out of the Baithak and assaulted him. Muhammad Iqbal, Sultan Sikandar,.
9. Sarfraz Khan; Karam Elahi and Muhammad Aziz respondents were armed with guns while Ghulam Haider, Sultan Khan, Sher Ali and Dost Muhammad, respondents, were armed with sticks. Sultan Khan, Sher Ali and Dost Muhammad injured Pervez who fell down. Sajid Mahmood (given up P.W.) nephew of the ,complainant was coming behind the tractor with his cattle and he too was injured- by Sultan Khan, Sher Ali, Dost Muharrkmad and Ghulam Haider. He too fell down. Complainant ran to the spot and was fired at by Karam Elahi hitting him on his right arm, followed by another shot by Muhammad Aziz, respondent, injuring him in the chest. He also fell down. Muhammad Aslam, deceased, came out from his nearby house and was injured by the fireshot in- the 'chest by Muhammad lqbal, respondent No.l, and in abdomen by another fire-shot by Muhammad Sarfraz, respondent. No.2.'He too fell down. Mst. Irshad Begum, P.W.12, reached abusing and she was also fired at by Sultan Sikandar, hitting her in the thigh. Ghulam Abbas (P.W. Not produced) and Nazir Hussain P.W.14, reached raising Lalkaras and on this the respondents ran away along with their weapons. Muhammad Aslam died in the hospital.
10. 7.The prosecution rested its case on the ocular evidence of Ahmad Khan, P.W.11, Mst. Irshad Begum, P.W.12, Muhammad Pervez, P.W.13, and Nazir Hussain, P.W.14, first three of them being injured, medical evidence and motive, which according to the First Informant was that about 4/5 years back Sarfraz, respondent, who has caused the fatal injury to Muhammad Aslam, deceased, was caused fire-arm injury by Jumma Khan, cousin of First Informant and a case under section 307/34, P.P.C. Was registered against Jumma Khan, Ghulam Abbas, brother of complainant, and Ahmad Khan, Complainant, and they were acquitted. In that case Sultan Khan, real uncle of Muhammad Aslam, was cited as an eye-witness. Muhammad Aslam, deceased, prevailed upon him and he exonerated the three accuse. The accused (respondents) thus had a grudge and were on the lookout for an opportunity to take revenge.
8. Mr. Munir Piracha, learned counsel for the petitioner submitted that he would not press the petition against respondents Nos. 6 to 9 Therefore, the .Question that requires consideration, inter alia is I whether the High Court has followed correct principle of law in acquitting Muhammad Sarfraz, Sultan Sikandar, Karam llahi and Muhammad Aziz, respondents 2 to 5 respectively and converting the conviction of Muhammad Iqbal, respondent 1, from section 302, P.P.C. To section 304-II, P.P.C. In view of the fact that the High Court itself came to the conclusion that the occurrence was admitted and the right of private defence of person and property was exceeded."
11. The High Court in the impugned judgment took note of the fact that in this case both the parties had tried to conceal their respective incriminating part involved in the occurrence in which one person lost his life and two were injured. Para.6 of the impugned judgment throws some light in this behalf. It reads as follows:- "6.Learned counsel for the State and the complainant contended that from the evidence on the record it was proved that the appellants and their co-accused had formed an unlawful assembly and committed the offence with which they had been charged and that the conviction should have been recorded under sections 302, 307/149 and 148, P.P.C. On the other hand, it was strenuously urged by the learned counsel for, the appellants that the eye-witnesses including Mst.
12. Irshad Begum (P.W.12) were inimically disposed towards the appellants, all' were interested witnesses and could not be believed unless there was exceptionally independent and strong corroboration and that no such corroboration was forthcoming on the record. It was also asserted that in view of the proved facts on the record the right of self-defence was properly claimed and must have been extended to the appellants. After having heard them and gone through the record it seems that the occurrence took place neither in the manner the prosecution has put forth nor in the way the defence wants the Court to believe." (Underlining is by us).
13. Learned counsel for the respondents, during the course of arguments, relied on some of the observations made by the High Court in Para. 9 of the judgment, wherefrom it could be safely concluded that "I'he version of the defence seems to be correct that when many people from the complainant side assembled and started pelting stones even Sultan, Sher Ali and Ghulam Haider came down from the roof of the Baithak and the doors of the house were bolted. It was in such a situation, when still the stones were being hurled at the house, that the gun was fired from the window. These pieces were recovered just from the platform of the Baithak. The case of the defence is that only one shot was fired, but the complainant, Mot. Irshad Begum and Aslam deceased were injured at three places wherefrom the blood-stained earth was recovered, and it cannot be accepted in view of the medical evidence, that the three were, injured by one shot. One of the injuries on the right arm of Ahmad Khan complainant is going upwards while the other injury on the front of chest is going downwards and this clearly means that he was injured by two independent shots. Mst. Irshad Begum P.W. Seems to have been injured by yet another independent shot and Aslant deceased had also two fire-arm injuries and if not two, at least one independent shot had hit him. The conclusion is irresistible, in view of the medical evidence and the other circumstances appearing in the case, that at least four shots were fired injuring the deceased and the two witnesses".
14. After some discussion both the learned counsel agreed that the conclusion reached by the High Court regarding the pelting of stones could neither be the result of misreading or non-reading of the evidence. Otherwise also, it is not possible for this Court in these proceedings to substitute its own opinion in this behalf with that of the High Court. That being so, the next question arises; whether as contended by the learned counsel for the complainant side: that none of the accused having been injured by the pelting of stones from the complainant side, there was no right of private defence; or, as contended by the other learned counsel: the stones having been used as missiles it was serious apprehension of the accused side that they would receive injuries, therefore, it was a case of exercise of right of private defence.
15. To us, it was neither a case of complete exercise of right of private defence nor the complete negation of it. The accused, it seems, did react to the pelting of stones in such a manner so as to claim the right of private defence. In such like cases, it has to be decided as to whether the first act on the part of one party could be treated as such act of aggression as to confer complete right of private defence on the other side; or, it would be a case, either of exceeding the right of private defence or of sudden fight falling under Exception IV to section 300, P.P.C. In this case, it has been agreed that it was a case of sudden right which did fall within the scope of Exception IV to section 300, P.P.C., accordingly, the conviction could be under section 304, Part-I.
16. By virtue of the Explanation to Exception IV, it will be immaterial, for its purposes--who caused the original provocation or committed the first act of assault. Otherwise too, even if it would have been a conviction on account of the exceeding of right of private defence on account of the application of exception in that behalf to section 300, P.P.C., the conviction should have been under section 304 Part-I. It appears that it was on account of some typing mistake that the offence mentioned in the impugned judgment is Part-II of section 304, P.P.C.
17. In the light of the foregoing discussion, the appeal against acquittal is partly allowed against lqbal (respondent No.l), in that the impugned judgment 'is set aside to that extent only and his conviction is altered from section 304 Part-1I, to section 3014 Part-1.
18. On the question of consequential enhancement of sentence on the alteration of the offence as above and otherwise also, it having been found a fit case for enhancement of sentence, both the learned counsel agreed that instead of enhancement of rigorous imprisonment, the enhancement of fine shall meet the ends of justice. We, accordingly, enhance the fine to Rs.1,50,000. The entire amount of fine, when recovered, shall be paid as compensation to the heirs of Muhammad Aslam deceased; and, in default of payment of fine. Muhammad Iqbal shall suffer further rigorous imprisonment of 6-1/2 years. Except for the afore-altered measure of the offence and the sentence, the remaining appeal is dismissed; thus in the result, this appeal is partly allowed.