' WALI MUHAMMAD KHAN, J.---Through the instant Criminal Appeal, by leave of the Court, Muhammad Siddique appellant has called in question the order dated 31-3-1990 passed by the Lahore High Court whereby his appeal against his conviction under section 302, P.P.C. And death sentence was dismissed and the death sentence was confirmed on the reference made by the Additional Sessions Judge. While arguing the petition for grant of leave to appeal, the learned counsel for the petitioner did not question the legality of the conviction of the petitioner under section 302, P.P.C. But emphasised that in view of the occurrence being he result of a sudden affair, the extreme penalty of death provided under the law was not called for. Leave has been granted only to consider the question of sentence.
2. According to the prosecution story, the appellants and his co-accsued were digging a drain in the lane which is being claimed by the complainant party as their exclusive property. On the objection of the complainant party, an altercation ensued between them but they were separated by the persons collected there. It is alleged that the accused party thereafter went to their house and after some time Muhammad Siddique appellant armed with .12 bore gun and his co-accused Muhammad Ali, Muhammad Zikariya and Muhammad Azam armed with Sotas came to the spot.
Muhammad Ali delivered Sota blows to Ahmad Ali, Muhammad Azam gave Sota blows to Abdul Qayyum P.W. While Muhammad Siddique appellant fired a shot at The deceased Muhammad Hussain hitting him on his abdomen when he had already been caught hold of by Muhammad Zikariya acquitted accused. Thereafter, the appellant alongwith his companions fled away from the spot and Muhammad Hussain succumbed to his injuries there and then. Dr. Asif Mahmood P.W. 8 found one entrance and 4 exit wounds on the person of the deceased and according to him they were the result of fire-shot. He also examined Ahmad Ali P.W. And found 3 abrasions, one contusion and one lacerated wound on various parts of his body. Similarly, he found 2 contusions and 3 abrasions on the person of Abdul Qayyum 'P.W. Caused by blunt weapon. Muhammad Yousaf P.W.
Had one abrasion and swelling on his forehead and on right elbow joint. The accused/appellant and his companions were tried by the Additional Sessions Judge, who found the appellant guilty under section 302, P.P.C. For causing the death of Muhammad Hussain deceased and sentenced him to death and a fine of Rs,10,000 or in default thereof to 2 years' R.I. Muhammad Ali and Muhammad Azam were convicted under section 323, P.P.C. And sentenced to one year R.I. Each and fine of Rs,2,000 each or in default to 2 months, R.I. Muhammad Siddique appellant alone has challenged his conviction before the High Court and his co-accused rest contented with the finding of the trial Court.
3. We have heard Mr. Q.M. Salim, Senior Advocate for the appellant, Kh. Shoukat Ali, Advocate for the State and have perused the record of the case. The learned counsel for the appellant submitted that the occurrence is not the result of preplanning and premeditation but occurred at the spur of the moment on account of the action of the complainant party to stop the appellent and his co- accused from digging the drain for the smooth flow of water. According to the prosectution version, there was simple altercation at the outset and after being separated, the accused party went to their house and emerged on the scene subsequently with gun and Sotas and committed that crime. We questioned the learned counsel for the State whether the injuries caused to the complainant party, in all probability, is not the result of initial altercation and the allegation of the accused party going to their house and coming again is not an improvement, he replied that the appellant had no arm in his possession and therefore the fire-arm injury to the deceased was not caused in the earlier fight. He insisted that the accused came back duly armed having determined to do away with the life of the deceased who was a man of status in the family. He firmly asserted that the blunt weapon injuries to the P.Ws. Were caused prior to the firing by the accused/appellant at the deceased. We feel that if the appellant and his co-accused had the intention to kill the deceased, it is not understandable why the sota blows were delivered first to the P.Ws. And thereafter only one shot was fired at the deceased at a time when he was already in the grip of Muhammad Zikariya who too could receive pellet injuries. The parties are closely related with no previous enmity. In the circumstances of the case, we are certain that something happened between them before they came to grips which is being suppressed. We have pondered over the matter thoroughly and are of the considered opinion that the extreme penalty of death is not called for and that the lesser penalty provided under the law can amply meet the ends of justice.
' We accordingly allow this appeal partly and alter the sentence from death of life imprisonment and fine of Rs,25,000 or in default thereof to 2 years, R.I.