1. ' MUHAMMAD AFZAL ZULLAH, C.J.---These two Criminal appeals by leave of the Court are directed against the judgment in appeal by the High Court in a conviction under section 302, P.P.C. The leave grant order reads as follows:-- "Anwar Ali Shah, petitioner, was convicted by the Additional District Judge at Attock of the offence under section 302, Pakistan Penal Code, for causing the death of Azhar Hussain deceased and sentenced to suffer imprisonment for life and to pay fine and compensation. He filed an appeal against his conviction and sentence before the High Court. A learned Single Judge partly accepted the appeal, altered his conviction to one under section 304, Part I and reduced his substantive sentence to rigorous imprisonment for a period of 10 years. From the judgment of the High Court the petitioner as well as the complainant seek leave to appeal.
(2) The occurrence took place on 7-5-1980 at 3-30 p.m. And it was, reported by the father of the deceased at Police Station Pindi Gheb which was 10 kilo-metres away at 6-15 p.m. On the same day. According to the prosecution shortly before the occurrence the petitioner had misbehaved with the sister-in-law of the deceased. On coming to know of this incident, the deceased started for the house of the petitioner in order to make a protest. The petitioner met him on the way. There was a scuffle between the two, during the course of which the deceased felled the petitioner on the ground. One Mukhtiar Hussain Shah intervened and pushed away the deceased. The petitioner stood up, took out a pistol from the fold of his loin-cloth and fired at the deceased. The deceased was hit in the chest and he expired at the spot.
(3) At the trial the petitioner did not deny that he had killed the deceased. However, he took the plea of self-defence of person, stating that the deceased had tried to throttle him to death and had threatened to kill him even after he was pushed away by Mukhtiar Hussain Shah. He did not produce any evidence in his defence.
(4) At the trial the case of the prosecution rested entirely upon the ocular testimony of Lal Muhammad (P.W.1) and Altaf Hussain (P.W.2). They both supported the case of the prosecution. The Trial Court accepted their testimony, rejected the defence version and convicted the petitioner of an offence under section 302. On appeal the High Court reappraised the evidence and came to the conclusion that it was a case of free fight and the petitioner was entitled to take advantage of Exception 4 to Section 300, Pakistan Penal Code. Accordingly, it altered his conviction to one under section 304, Part I.
(5) As stated above, it is not disputed on behalf of the petitioner that he had fired the fatal shot at the deceased. However, it is contended that the evidence produced by the prosecution itself made out a case of self-defence of person; as such he was entitled to be acquitted. On the other hand it is asserted on behalf of the complainant that the High Court erred in holding that it was a case of free fight as the petitioner had fired at the deceased after the so-called threat to his life had come to an end and the fight was over.
(6) After hearing learned counsel for the parties we are of the opinion that the contentions raised in the two petitions need further examination."
2. ' Learned counsel for the convict has argued that the statement of the accused-appellant under section 342, Cr.P.C. Having been fully supported by. The prosecution evidence, could have been accepted. ' If so, according to him, this case would qualify for complete right of private defence and acquittal.
3. ' No doubt the accused did plead exercise of right of private defence; but the High Court rightly concluded that the circumstances appearing in the evidence did not support the plea of complete right of private defence, rather it negated the same. When called upon to point out such material in evidence from which it could be gathered that he accused-convict was in fact throttled by the deceased; whereupon the former fired the effective fatal shot, the learned counsel invited our attention to the testimony of Lal Mohammad, P.W.
1. At page 66 of Paper Book, the following deposition has, in particular, been pointed out by the learned counsel:- "After throwing Anwar Shah on the ground Azhar Hussain had come on him. Anwar Shah was at that time on the ground with his face downwards. He was in a kneeling position. Azhar Hussain had at that time pressed Anwar Shah down while holding him from shoulders, and the neck, from upper part, back side, Azhar Hussain was at that time pressing Anwar Shah with his belly."
4. ' Learned counsel read the word "neck" in the above quotation as signifying the front part of neck, but from the narration, it appears that the back of the accused, right from the neck downward was being pressed from back side and mention of deceased's "belly" here becomes significant. It shows. That even the -neck part of the accused was being pressed by the soft body pressure of the deceased and not by some throttling movement or manipulation by the hands. Faced with this, learned counsel for the appellant, raised a general contention that in such a situation when the adversaries are in a grappling posture, it is very difficult to weigh their acts in golden scales, therefore, on this account if not on the plea of throttling, the accused could have been held entitled to the benefit of right of private defence.
5. This aspect of the case was fully examined by the High Court. It kept in view the motive. That is, that part thereof in which the accused molested a close relation of the deceased and thus provoked the entire incident ending up with the firing of a shot by the accused. The conclusion drawn that it was a sudden fight fully qualifying for the application of Exception 4 to section 300, P.P.C., is not only justified but is supported by the judgment of this Court in the case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1%2 SC 502. Thus the conviction in this case under section 304, Part I, P.P.C.
6. Cannot be considered as unjustified. Learned counsel for the complainant in the other appeal when called upon to show whether it was a case of murder, contended only this much that whole of the conduct of the accused should have been examined right from the stage he molested the girl. That being so, it could have been held that he having provoked the deceased to do what he did in this case, was not entitled to any plea of right of private defence nor could he be extended to benefit of Exception 4 to section 300, P.P.C.
7. On face the argument of the learned counsel for the complainant did appear to be attractive, however, on further examination, it has been found to be of no force. The Explanation to Exception 4 to section 300, P.P.C. Itself takes care of the situation pointed out by the learned counsel. When all other conditions of the Exception are satisfied, the Explanation provides that the fact as to which party provoked or otherwise committed the first act of aggression, would become immaterial. In the light of foregoing discussion, we agree with the High Court that it was a case to which Exception 4 to section 300, P.P.C. Was attracted and the same having rightly been applied, the conviction under section 304, Part I is unexceptionable. Therefore, both the appeals in so far as the conviction is concerned, have no merit.
8. In the appeal filed by the complainant, his learned counsel in the alternative, requested for the enhancement of sentence. After some discussion on the question, whether the act of the accused was cruel and/or he took undue advantage of the empty handedness of the adversary--the deceased, it was ultimately agreed that even though the accused was armed with a fire-arm and he also used it but it cannot be ignored that the fight between the deceased and the accused was in this case in all probability, unequal. The deceased had overpowered the accused in the first instance. Even if they were during the scuffle at a stage when the fight was still on, it appeared as if they had been separated, the possibility that the deceased might again have been pounced upon the accused and this time might have throttled him, could not be excluded with reasonable certainty, in the peculair facts and circumstances of this case. Therefore, it cannot be held beyond reasonable doubt that the accused took undue advantage of his having a fire-arm by him. In this supposition, we have taken note of the fact as pointed out by the learned counsel for the accused that although he had still three more live cartridges, the accused did not fire/repeat the second shot at the deceased. Thus the case as already held, rightly fell within Exception 4 to section 300, P.P.C. We are also of the view that the sentence of ten years' R.I. Could have been enhanced by adding some more years of R.I.; but, ultimately both the learned counsel agreed that instead of enhancing rigorous imprisonment, the sentence of fine may be enhanced so as to compensate the heirs of the deceased. This approach is reasonable and satisfies the Islamic Ethos also. We, accordingly, instead of enhancing the, rigorous imprisonment, enhance the fine to Rs,1,50,000. The entire amount, when recovered, shall be paid as compensation to the heirs of the deceased. In default of payment of fine, the accused-appellant shall suffer rigorous imprisonment for 6-1/2 years. The acquittal appeal, namely, Criminal Appeal No,169 of 1991 is partly allowed with the enhancement of sentence of fine and award of compensation.