1. MUHAMMAD GUL, J.-Allah Yar and his two sons Falak Sher and Fazal-ur-Rehman, the first three respondents herein, were convicted by the learned Sessions Judge, Lyallpur, under section 302/34, P. P. C. For the murder of Saif Ullah, a son of the appellant herein, and were sentenced to death each. On appeal and a reference a Division Bench of the late High Court of West Pakistan at Lahore, by its judgment dated 3-3-1971 took the view that Allah Yar and Falak Sher had acted under grave provocation and their case was covered by the first exception to section 300, P. P. C. And therefore, altered their conviction to that under section 304, Part I read with section 34, P. P. C. And sentenced them to 10 years' R. I. And fine of Rs. 1500 each, or in default, to suffer further R.
1. For three years each. Fine if recovered, was made payable as compensation to the heirs of the deceased under section 544-A, Cr. P. C. About Fazal-ur-Rehman, the learned Judges of the Division Bench opined that it could not be said "with any certainty" that he shared common intention with the other two accused to cause the death of Saif Ullah and therefore, altered his conviction also and found him guilty under section 324, P. P. C. And sentenced him to the imprisonment already undergone. Leave to appeal was granted to the father of the deceased who was also the complainant, to consider whether on the facts of the case, the case of any of the three respondents is covered by the First Exception to section 300. P. P. C. And further whether the case of Fazal-ur--Rehman respondent has been properly differentiated from the other accused?
2. The deceased's father, Ghulam Muhammad. Appellant herein, is owner of Killa Nos.4 and 5 in Square No. 9 in Chak No. 567/G. B. District Lyallpur. Just opposite to his land are Killa Nos. 24 and 25 of Square No. 74 in Chak No. 567/G. B., belonging to the respondents, with a kutcha road running between the lands of the parties. Their dharis are also situate in their respective lands.
3. The incident took place at about digerweld on the 28th July 1968, when according to the prosecution case, six or seven cattle heads belonging to Allah Yar respondent trespassed in the munji crop of the appellant in Killa No. 5. Ibis son Saif Ullah (the deceased), who was grazing his own cattle nearby, rounded up the tresspassing cattle with the object of taking them to the cattle- pound for being impounded. The three respondents variously armed, appeared on the scene and asked Saif Ullah to release the cattle. Of them. Allah Yar carried a dang, Fazal-ur-Rehman a spear and Falak Sher a hatchet. On Saif Ullah's refusal to release the cattle, Allah Yar struck him three lathi blows on the head, followed by a spear blow by Fazal-ur--Rehman on the deceased's right shoulder. Falak Sher also gave him a, hatchet blow on the forehead which cut the bridge of his nose, who then fell down. Allah Yar then gave further lathi blows to Saif Ullah as he laid on the ground. On the cries of deceased, his father Ghulam Muhammad (P. W. 11) Sher Khan (P. W. 13) and Abdur Rehman (P. W. 14) reached the spot and witnessed the occurrence. At this stage the three respondents de--camped from the scene. The three witnesses then took Saif Ullah to the Civil Dispensary at Nankana, but the doctor incharge of the dispensary directed them to take him to Jaranwala hospital. Saif Ullah was then taken to the Jaranwala hospital, where he was medically examined at 10-00 p.m. After obtaining medical certificate, the appellant went to P. S. l.Undhianwala, District Lyallpur, where he lodged the F. I. R. (Exh. P. A.) on the following: morning at 4- 30 a.m. The deceased remained unconscious until he died in the hospital on 6-8-1968, without his own statement being recorded.
4. Falak Sher and Fazal-ur-Rehman respondents were arrested on 31-7-1968. The latter also produced a certificate of injuries on his person. On. 3-8-1968 a blood-stained hatchet (Exh. P. 2) was discovered at the instance of Falak Sher. It lay berried in a chappar in his dharl. On the same day, blood-stained spear (Exh. P. 3) was discovered at the instance of Fazal-ur--Rehman from underneath a stack of bhoosa near his dhari. Both these weapons were stained with blood but the report of the Serologist to determine the origin of blood on the two weapons is not on record. Earlier the S. H. O. Took into possession blood-stained vest (Exh. P. 1) produced be Ghulam Muhammad in the hospital. It was worn by the deceased and had a cut on the right sleeve, corresponding to injury No. 5 to the deceased on the right deltoid. Allah Yar respondent who had disappeared from the chak was arrested on 8-8-1968, after warrants had issued against him.
5. The autopsy of the deceased showed that in all, he suffered 8 injuries which included two contusion marks and two scratches and an abrasion. His death however, was due to the first injury on the head which had fractured his skull resulting in concussion of the brain, which in the opinionr of the doctor was sufficient to cause death in the ordinary course of nature. This was attributed to a lathi blow by Allah Yar. Of the remaining injuries, one was incised wound on the bridge of the nose, which was grievous and one was stab wound on the right shoulder. From the nature of the injuries,, it is clear that three different kinds of weapons had been used in the assault. Upon the deceased.
6. The medical certificate (Exh. P. N.) produced by Fazal-ur-Rehman on, 29-7-1968 showed two gunshot injuries on his person, one of which measured 1/8" x 1/16" in the outer aspect of the right leg 9" above the right outer malleolus of the right ankle joint. The second gunshot wound was oval in shape 1/8" x 1/16" on the lateral aspect of the right leg. 6/8" below and behind the first injury. There was no scorching of the surrounding skin, nor were the adjacent hair ringed. The third injury was a lacerated wound by a blunt weapon 1 1/2 " x 1/8" bone deep on the left side of the head. The character of all these injuries was however, remarkable. On a query from the S. H. O. Dr. Abdal Latif, M. O. Government Rural Dispensary who had examined Fazal-ur-Rehman stated with reference to these injuries "Pellets could be placed under injuries No. 1 and 2 after fabricating the injuries by some sharp- pointed needle. The clothes which Fazal-ur-Rehman was wearing had no mark corresponding to injuries Nos. 1 and 2 nor any cloth was produced before me bearing mark corresponding to injuries Nos. 1 and 2. The injuries Nos. 1 and 2 had been caused from front side and from above downward.
7. Injuries Nos. 1 and 2 had not caused any damage to the major blood vessels, except soft tissues.--- Injury No. 3 of Fazal-ur-Rehman could also be caused by friendly hand.
8. Of the three respondents, Allah Yar and Falak Sher pleaded alibi. Fazal-ur-Rehman can the other hand admitted the incident, but gave a different version. However, he did not admit specifically having caused any of the injuries which later resulted in the death of the deceased. Before the committing Magistrate; he stated "Our dhari is situated in our Square No. 74 where we keep our cattle. On the day of the occurrence, I took my cattle for watering them, when I was taking them on the road in between our square and that of the complainant, Saif Ullah deceased shouted and abused me saying that I should take away my cattle. He ran towards me, and again abused me. I retorted. Coming near me be assaulted me with a dang he was holding, which hit me at my head. He aimed another blow at me when I also assaulted him with the Gandala I was holding. In the meantime Mir Abdullah, a cousin of the deceased approached me and fired at me with his gun. The pallet hit me on my leg and I fell down and became unconscious. Ghulam Muhammad son of Fateh Muhammad and Faiz Muhammad son of Raj Mir our tenant were witnesses in the occurrence. I was then removed to the hospital where I was medically examined. The other two accused were not at the spot."
9. He improved upon his statement before the trial Court by introducing a previous incident. His statement in that Court was : "A road passes in between my land and that of the deceased. I had some banana plants in my land near that road. 4/5 days before the present occurrence, I uprooted those banana plants and threw them on that road. Ghulam Muhammad P. W. Threw back those uprooted banana plants in my land. On the following day when I went to my field, I found those banana plants in my land. I again threw those banana plants on the road. Ghulam Muhammad P. W. And Saif Ullah deceased came there. They told me that the road belonged to them and that I should not throw those banana plants on the road. I insisted that I would throw those plants on the road. Ghulam Muhammad and the deceased told me that they would see me in case I threw the plants there. I returned to my dhari. On the day of occurrence, at 4-30 or 5-00 p.m., I took my buffalloes, for watering them. I had a Gandala in my hand, because usually the Zamindars do keep Gandalas with them. On the day of occurrence, it was turn of water of the cultivators of Chak No. 567. When I passed in-between our Killa No. 24 and Killa No. 4 of Ghulam Muhammad, Saif Ullah deceas-.d ran towards me from his dhari, which seas in Killa No. 8. He was abusing and he had a stick in his hand.
10. When I reached in-between my Killa No. 25 and Killa No. 5 of Ghulam Muhammad P. W., the deceased reached there and told me to take. Back my buffaloes. I told him that I was going on the sanctioned road, and told him that as to why he was stopping me. The deceased inflicted stick blow to me which hit me on the head. I had Gandala with me. I had been causing injuries to the deceased with that Gandala. The deceased had been inflicting blows to me. Amir Abdullah son of Faia Muhammad P. W. Ran towards the spot armed with a gun. Faiz Muhammad son of Rajmir, Ghulam Muhammad son of Fateh Muhammad reached the spot on hearing our noise. They shouted that I was going to be fired at by Amir Abdullah. In the meantime, Amir Abdullah fired shot at me which hit me on the right leg. I fell down and became unconscious. I do not know what happened later."
11. No evidence was produced in support of this version, except the medical certificate (Exh. P. N.). But the statement of Dr. Abdul Latif was enough to demonstrate the spurious nature of injuries on the person of Fazal-ur-Rehman.
12. The learned Sessions Judge believed the evidence of the three eye--witnesses. Two of them, namely, Ghulam Muhammad and Sher Muhammad, though related to the deceased, their evidence was nevertheless found to be sufficiently corroborated by the discovery of hatchet (Exh. P.
13. 2) and spear (Exh. P. 3), both of which were blood-stained. The learned Sessions Judge also found the defence version highly improbable, apart from the fact that there was no direct evidence in support of it. Accordingly, in the absence of any mitigating circumstance operating in favour of the respondents. The trial Court imposed death penalty on each of them.
14. The learned Judges of the High Court on the other hand, did not consider it "safe" to rely on the evidence of Abdur Rehman (P. W. 13) because besides being married to maternal cousin of the deceased, he had his house seven squares away from the scene of incident and could not offer any reasonable explanation as to his presence at the spot. The learned Judges, however, treated Ghulam Muhammad, father of the deceased and Sher Muhammad, as natural witnesses of whom the latter was unrelated and therefore, independent. Nevertheless the learned Judges were of the opinion that Ghulam Muhammad and Sher Muhammad had, during the trial, in certain respects improved upon their earlier statements before the police so as to fit the medical evidence, particularly in relation to the sequence of injuries to the skull of the deceased. As stated already, according to the F.
1. R. The attack upon the deceased was opened by Allah Yar with three stick blows on the head of the deceased, one after the other. This was followed by a spear blow by Fazal-ur-Rehman and a hatchet blow by Falak Sher, and it was towards the closing stage of the fracas that the deceased was stated to have retaliated with a stick blow on the head of Fazal-ur- Rehman. According to the medical evidence, injury No. 1 on the head of the deceased had fractured his skull causing a concussion of the brain. The learned Judges opined that the deceased having suffered that grave head-injury, would have surely been incapacitated to retaliate with a stick blow on the head of Fazal-ur-Rehman respondent. To get over this angularity in the prosecution case, the eye-witnesses at the trial altered the sequence of injuries on the head of the deceased and stated that in the beginning the deceased received two injuries after which he retaliated and third head injury was caused later. This shifting of sequence of the bead injuries to the deceased in the opinion of the learned Judges had somewhat impaired the veracity of the eye--witnesses. However, the learned Judges treated Ghulam Muhammad (P. W. 11) and Sher Muhammad (P. W. 13) as natural witnesses of whom the latter was also independent.
15. In one other respect also, the learned Judges also did not quite agree with the trial Judge. That was about the origin of the assault on the deceased. In that behalf, the learned Judges were particularly influenced by the omission in the spot inspection report (Exh. D. C.) prepared by the S. H. O. Of any reference relating to the munji crop. On that facet of the prosecution case, the learned Judges were not inclined to accept the uncorroborated statement of Gbulam Muhammad and Sher Khan who, in their opinion had prevaricated about the sequence of head injuries to the deceased, to fit with the medical evidence.
16. Apart from these angularities in the prosecution evidence, the learned` Judges otherwise accepted the ocular account given by Ghulam Muhammad and Sher Muhammad which was also amply corroborated by the recovery of hatchet (Exh. P. 2) and spear (Exh. P. 3) and the production of vest (Exh. P. 1) with a hole in its right arm, worn by the deceased at the time of incident. The learned Judges also agreed with the trial Court that three different kinds of weapons had been used in the attack, which was also a strong circumstantial evidence in support of the ocular evidence, that the deceased was attacked by three persons.
17. Likewise, the learned Judges had no hesitation to reject, out of hand, the defence version adumberated in the two statements of Fazal-ur-Rehman, set out above. Similarly, the belated introduction of the incident relating to the throwing of uprooted banana plants was also pooh- poohed as "a flimsy' attempt" to prop up the plea of self-defence by conjuring previous back- ground of ill-will between the parties.
18. On these findings and following the dictum of the Federal Court in Safdar Ali v. The State (PLD 1953 FC 93), the learned Judges however felt bound and rightly so, to consider the prosecution and the defence versions in juxtaposition, with each other, so that if after the review of the entire evidence in the case, there is a reasonable possibility that the defence put forward might be true, it will react on the whole prosecution case.
19. Approaching the case in the above perspective, in the opinion of the learned Judges, there were only two alternative possibilities arising in the case, viz
(i) whether the three respondents were the first to attack the deceased, who in self-defence gave stick blow to Fazal-ur-Rehman respondent on the head ; or
(ii) whether it was the deceased who opened the attack by giving stick blow to Fazal-ur-Rehman on his bead and three respondents--retaliated to cause injuries to the deceased which later proved fatal?
20. Having propounded the above hypothesi, the learned Judges at once proceeded to say that since both the above-mentioned alternatives are equally possible and according to the well established principle, the one favourable to the accused ought to be accepted and all doubts should be resolved` in his favour. It is however, important to observe, that there was no examination at all, of the first alternative and entirely confined their discussion to the second alternative. Not only that while examining the second hypo--thesis, the learned Judges further assumed that ". . . It cannot be conceived that Saif Ullah deceased had struck a. Stick blow on the head of Fazal- ur-Rehman when the latter was.: accompanied by his two armed companions . . . . . . The possibility, therefore, is that the deceased gave a stick blow to Fazal-ur-Rehptan when the latter was alone and empty-handed."
21. This conclusion is not based on any evidence on record. As to whether it can be properly inferred from the circumstances will be seen presently.
22. Proceeding on that basis, and following the decision of this Court in Nusrat v. The State (PLD 1967 SC 18), the learned Judges felt justified to bifurcate the transaction into two distinct parts, that is to say, the initial stage when the deceased gave a laths blow on the head of Fazal-ur-Rehman, when the latter was not accompanied by the other two respondents, and the second stage, when the three respondents came together, well-armed in retaliation to ,the injury earlier received by Fazal- ur-Rehman. On this point, the finding of the learned Judges is in these words " . . . . The only reasonable possibility is that they (the respondents) came subsequently. It can be inferred from the above-noted facts that on receiving the stick blow on his head, Fazal-ur-Rehman . . . . Ran back to his dhari, informed his relatives Allah Yar and Falak Sher. Whereafter all the three of them immediately armed themselves with different weapons... And returned to take revenge from Saif Ullah deceased."
23. Thus proceeding on the basis of series of assumptions in favour of :the respondent, and coupled with the fortuitous fact that the parties were agriculturists, the learned Judges thought that a foundation was aid for attracting the following observations of this Court in the case of Nusrat v.
24. The State " . . Bearing in mind the character of the agricultural tribes of the Punjab, such conduct would be calculated to cause loss of control to the extent that the person affected would be driven to acts of violence by way of retaliation . . . . . . ."
25. Thus on these assumed premises, the learned Judges concluded that the ;infliction of injury by the deceased on the head of Fazal-ur-Rehman was "without any proper justification" and "an act of high handedness" which was sufficient to provoke him and his relatives into acts of violence by way of retaliation. And since the appellants in the precedent case were given the benefit of "grave and sudden provocation" and their conviction under section 302/149, P. P. C. Was altered to that under section 304, Part I, P. P. C. The learned Judges in the High Court felt justified to treat the case against Allah Yar and Falak Sher respondents herein on that footing.
26. On the question of application of section 34, P. P. C. The learned Judges had no doubt that both Allah Yar and Falak Sher having regard to the nature of weapons, they carried and which they wielded "ruthlessly" unmistakably showed that they had common intention to kill. The treatment of the case against Fazal-ur-Rehman was however, distinguished and briefly disposed of with the following observation "The injury attributed to Fazal-ur-Rehman. Appellant, is a minor one. Described as a stab wound 3/8" x 1/8" x --" on right deltoid. It was found to be a simple injury. Considering the nature, dimension and the location of this injury it could not be said with any certainty that Fazal-ur- Rehman, appellant, also shared the common intention of causing death of the deceased with his two companions.
27. Learned counsel for the appellant was critical of the above conclusion by the High Court and process of reasoning by which these conclusions were reached. It was submitted that these conclusions are wholly against the weight of evidence in the case, and rested on assumptions and inferences which do not properly flow from the evidence or the circumstances of the case. Learned counsel read before us material evidence in the case, particularly bearing on the motive, which according to learned counsel was entirely overlooked by the High Court and as a result, the learned Judges fell into error and rested their conclusions on inferences which were unwarranted. It was further urged that if it be assumed that inferences raised by the learned Judges were reasonable, even then the case of the respon--dents is not covered by the first exception to section 300, P. P. C. For which they had to discharge heavy onus, which they failed to do. As I will presently show, I consider that the criticism is well justified.
28. In a case like this, where there are two opposite versions of the same incident and there is also a plea of self-defence or for diminished criminal liability, motive assumes crucial importance. It is not only explanatory of the,, conduct of persons concerned in the incident in the given situation, but also helps in the proper appreciation of evidence in the case, in the light of moti--vation of their conduct.
29. In the instant case, it is not controverted that there is no background of previous ill-will between the parties. The incident about the throwing of uprooted banana plants on the Katcha road, five days before the assault on the deceased, introduced for the first time by Fazal-ur-Rehman respondent at the trial stage, has been rightly rejected by that Court and also the High Court. On the other hand, the F. I. R. Which was lodged with reason--able promptitude by an eye-witness gave, the rouding up of tresspassing cattle belonging to the three respondents, by the deceased and his insistence to take them to the cattle pound as the only motive which led to the concerned attack by the respondents on the deceased. The evidence of the three eye-witnesses which impressed the learned Sessions Judge as trust--worthy is also to the same effect. The learned Judges in the High Court, though excluded the evidence of Abdur Rehman,(P. W. 14) from considera--tion, but accepted that of the other two witnesses, Ghulam Muhammad appeal--llant herein and Sher Khan, except as to the sequence of stick blows on the head of the deceased attributed to Allah Yar respondent. Nevertheless, the learned Judges took the view that the real motive for the assault on the deceased was not proved satisfactorily. What mainly influenced the learned Judges in taking that view, as pointed out already, was the omission of any reference in the spot inspection report (Exh. D. C.) prepared by Nazar Hussain Shah, S. H. O. (P. W. 15), about the existence of munji crop in Killa No. 5 or damage to any such crop. But in their appraisal of evidence on this facet of the prosecution case, the learned Judges completely over--looked the evidence of Khan Muhammad paiwari (P. W. 12) who testified to the existence of munji crop in Killa No. 5 and also that of S. H. O.
30. Who in his cross-examination also testified to the existence of the crop and further stated that on his spot inspection, be found the munji crop damaged and the foot marks of cattle. This furnishes ample corroboration to the evidence of Ghulam Muhammad and Sher Khan P. Ws. About cattle trespass in the munji field. Therefore, absence of reference in Exh. D. C. About the damage to the munji crop is a mere inadvertant omission and it would be wrong to attach any greater significance to it. It is also consistent with the broad probabilities of the case or else the reason for the concerted attack upon the deceased, in the absence of the previous enmity, will remain an enigma.
31. The mistaken conclusion of the immediate cause of the assault on the deceased led to a further erroneous assumption by the learned Judges. The prosecution case has throughout been that there was only one incident in the course of which the deceased was attacked on his refusal to release the cattle. The F. I. R. Did not refer to any injury to Fazal-ur-Rehman respondent, though as pointed out already, during police investigation, he produced a medical certificate indicating three injuries on his person. It is perfectly conceivable that by this unexpected development, the prosecution felt obliged to offer some explanation about these injuries, and at the trial stage, the eye-witnesses introduced the story of the deceased having given in his defence a stick blow on the head of Fazal-ur-Rehman respondent. The spurious nature of these injuries had been referred to earlier. The trial Court found the two gunshot injuries fabricated-a conclusion, with which the High Court also agreed-but did not give any specific finding about the injury on the head of Fazal-ur- Rehman. Influenced by the "tailoring" of the prosecution evidence in an attempt to explain the head injury of Fazal-ur-Rehman and the omission of the trial Judge to give a definitive finding with regard to its genuineness or otherwise, the learned Judges proceeded on the basis of its genuineness and therefore, divided the incident as having happened in two stages, with an interval intervening between the two stages as explained already. This conclusion does not rest on any evidence whatever. Even the statement of Fazal-ur-Rehman at his trial did not go that far. The learned Judges being themselves on the judgment of this Court in the case of Syed Ali Bepari however, felt justified to reach that inferential conclusion. In the precedent case, it was inter alia observed "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an adversary proceeding to minimise one's own part in the incident. In such a case the Court may not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances"
32. Having thus concluded about the happening of the incident in two distinct stages each being separated in point of time from the other, and assuming further that stick blow on the head of Fazal-ur-Rehman was sufficient provocation to respondents to retaliate, the learned Judges opined that a foundation was laid for the application of the rule laid down by this Court in Nusrat v.
33. The State in mitigation of the offence against Allah Yar and Falak Sher respondents for the intentional killing of Saif Ullah.
34. The facts in the case of Nusrat briefly were these. A married woman by the name Fateh Mai during the absence of her husband Ahmed, eloped with her paramour Nusrat and his cousin Noora. They were seen and the erring woman was brought back. On his return to the village, her husband was informed about what had happened in his absence. Two days later, Ahmed along with three others went to Noora who was resident at another well some distance away, to reprimand him for his misbehaviour. After reprimand, Noora was also asked to vacate land of which he was a tenant.
35. There was then exchange of hot words between him and the woman's husband Ahmed and the latter struck him two stick blows, causing a lacerated wound 2" in length on his head and a 5" contusion on the shoulJer. Noora's brother also Ahmed by name, having seen his brother beaten, slipped away and went to his own well, apparently to inform his other brother and relatives about the beating to Noora. When Ahmad the woman's husband and his companions were returning to their well, they were overtaken and attacked by five persons including Nusrat, Noora and his brother Ahmed, all of whom were armed with dangs. Both sides received injuries. But injuries suffered by Ahmed, the woman's husband were fatal and he died shortly thereafter. At their trial, Nusrat and his companions pleaded right of self-defence on the basis of the earlier stick blows to Noora by Ahmed. The plea was rejected by the trial Court and the High Court and they were convicted under section 302/149, P. P. C. In this Court too, the plea of self-defence was rejected, but, the assailants were given benefit of grave and sudden provocation and their conviction was altered to that under section 304, Part I, P. P. C. The ratio decidendi of that case is in the following passage in the judgment of the learned Chief Justice : "On that view, the act of the complainants in applying force to Noora does not appear to have been covered with proper justification. If they had beaten him, when, as they alleged they saw him in the company of Mst. Fateh Mai, that would no doubt have been natural behaviour. But, the beating was given on the 1st March 1963, two days later at a time when Noora had offered no offence to them. It could be said that they had taken it upon themselves to judge him and to inflict punishment on their own authority and that was an act of bight-handedness which being accompanied by the infliction of serious injuries was of such a nature as to cause intense provocation to Noora's relations."
36. The judgment then proceeds to refer to the general character of the agricultural tribes in the Punjab relied upon by the learned Judges and reproduced earlier.
37. The foremost question that arises for consideration is whether there is any analogy between the instant case and the precedent case. The facts of the two cases are wide apart. In the precedent case. Two days after the return of the erring woman, her husband went to Noora's sell to chastise him and caused him two injuries which were by no means insignificant. It was in that context that the learned Chief Justice condemned the act of the deceased as "high handed" for which there was no jurisdiction and which really provoked the fatal assault. In the instant case, on the other hand, as held by the learned Sessions Judge, and there is ample evidence in support of that finding, that the immediate cause for fracas culminating in fatal injuries to Saif Ullah, was the rounding up of the trespassing cattle of the respondents by his and his insistence to take the cattle to the cattle-pound.
38. This he was justified in law to do. His custody of the trespassing cattle for the time being, until he took them to the cattle-pound with all reasonable despatch, had the sanction of law. Therefore, any use or show of criminal force by the respondents to obtain release of their cattle or to prevent the deceased from taking the cattle to cattle-pound was a criminal act. A fortiori, the deceased was fully protected in law to maintain his custody of the trespassing cattle, by the use of minimum force against any hostile act by the respondents. Therefore, any injury caused by the deceased to Fazal-ur-Rehman during the latter's attempt to obtain release of his cattle, whose custody he was justified to retain, cannot sustain a plea for diminished criminal liability in respect of any offence committed in course of the same transaction.
39. Therefore, nothing really turns on the sequence of the head injury to Fazal-ur-Rehman even if it is treated as genuine, though the possibility of its being self-suffered like the two gunshot injuries cannot entirely be excluded in view of the doctor's statement referred to above. However, that may be there is not tangible evidence to indicate that the transaction was spread over two stages each distinct from the other. If I may say with respect, the findings of the learned Judges in teat behalf rest on what virtually is speculation and not any inference "properly flowing from evidence and circumstances". Even if it be assumed as was done by the learned Judges that there were two stages of the trap action and tee earlier incident provoked the latter, bearing in mind the real motive for the incident, the provocation if any, was Fazal-ur-Rahman's own seeking. His attempt to rescue the cattle from the custody of the deceased as pointed out already, was a criminal act and the deceased could retain custody of the cattle by the use of minimum force.
40. Before I conclude discussion on this aspect of the case, it seems proper to eater a caveat with reference to the observation in the case of Nusrat about the general character of agricultural tribes in the Punjab, relied upon by the learned Judges, for invoking the first exception to section 300, P. P.
41. C. In favour of the respondents. This appears necessary to prevent any possible misunderstanding of the observation. I have already referred to the ratio decidendi of the case in which it was made.
42. The obser--vation must on general principle be understood as confined to the peculiar facts of the precedent case and I am certain and I say so with all respect was not intended to lay a general principle of law of general application. As recently pointed out by this Court's in State v. Mushtaq Ahmad (PLD 1973 SC 418) every thing said in a judgment and more particularly in a judgment in a criminal case, must be understood with great particularity as having been said with reference to the facts of that particular case. Therefore, the mere fact that a person is a member of an agricultural tribe in the Punjab will o be no excuse for his taking the law into his own hand on a slight excuse or pretext : else it would result to a serious erosion of the stringent conditions laid down for the plea of provocation, in mitigation of criminal liability in cases of the relevant kind. To allow any such plea, the Court ought to be satisfied that provocation was, both "grave and sudden" and the offender while engaged in the act of culpable homicide was deprived of the self---control.
43. The question whether these conditions are satisfied in a given case, is essentially one of fact which the Court has to decide in the light of facts of that particular case and not on any priori basis and much less as a matter of law.
44. As a general proposition for invoking the first exception in mitigation for an intentional homicide, the accused is required to show that he really acted in a passion under a sudden heat and that his act was not preme--ditated "in cool blood". Again law contemplates the case of a "reasonable E man" as distinguished from a person of pugnacious or inflammable propensities and further requires that there must exist provocation of such quality and intensity as the law would deem sufficient to excite the mind of a "reasonable man" to act under the influence of that passion.
45. In Mancini v. D, P, p. (1942 A C 1), at p. 9 Viscount Simon said "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death .... The test to be applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."
46. In considering whether the provocation has or has not been made out, one must also consider the retaliation or provocation itself, i.e. To say whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fist might be answered with fist but not with deadly weapons and that is a factor which the Courts have to bear in mind when considering the question of provocation. When the law makes the provocation of a reasonable man in a given situation, it necessarily excludes the personal idiosyncracies of the accused.
47. Therefore, to accept the plea of grave and sudden provocation on behalf of the respondents herein, in the face of the above finding about the real motive for the incident, would be tantamount to permitting them to take advantage of their own criminal act which the Courts have never permitted. Therefore, in the circumstances of the case, I am perfectly clear in my mind that the plea of grave and sudden provocation in mitigation of the offence of culpable homicide amounting to murder, is not available to them.
48. It yet remains to consider, whether the learned Judges of the High Court were right to distinguish the case of Fazal-ur-Rehman from the other two accused. On this question, the main reason which influenced the learned Judges to treat his case on a different footing from the casts of his father and brother is simple injury attributed to him. The learned Judges in the High Court however, eltcgether overlooked the circumstances in which the above injury was caused. He was armed with a spear, while his companions bad a dang and a hatchet, which are deadly weapons. They came in a body from their dhori to launch a concerted attack on the deceased. It is extremely difficult, if not impossible to procure direct evidence to prove the intention of a person. In most cases, it is to be inferred from his act or con--duct or other relevant circumstances. Having regard to the circumstances of the case including the close relationship between the three respondents and the weapons each one of them carried, it would be only fair inference that they had the common intention of killing the deceased or at least causing such injuries that they knew or had the knowledge, will cause the death of the deceased. This in my opinion, amply satisfies the requirements for the application of section 34, P. P. C. In relation to Fazal-ur-Rehman respon--dent, that he shared the common intention with his father and brother, regardless of the nature of the injury caused by him to the deceased.
49. For the foregoing reasons. I would accept the appeal, set aside the judgment of the High Court in so far as it varied the judgment of the learned Sessions Judge, subject however, to the modification that I would sentence the first three respondents to rigorous imprisonment for life each. In addition thereto, Allah Yar respondent is sentenced to a fine of Rs. 3,000 and respondents Fazal-ur-Rehman and Falak Sher to Rs. 500 each and in default of payment of fine, they shall suffer further rigorous imprisonment of three years, one year and one year, respec--tively. The fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
50. Fazalur-Rehman is on bail. He shall surrender forthwith to the District Magistrate, Lyallpur, to undergo the sentence imposed hereunder.