1. SALAHUDDIN AHMED, J: This appeal, by special leave of this Court, is from the order of the Lahore High Court acquitting respondent No. 2 Karam Dad Khan of the charges under sections 302/34 and 307/34 of the Pakistan Penal Code and maintaining the conviction and sentence of respon--dent No. 1 Sahib Dad Khan under section 307 of the Code for an, attempt on the life of P. W. 12 Abdullah Khan, but altering his conviction to that under section 304(1;) of the Code and sentencing him to ten years' rigorous imprisonment thereunder for causing the death of Rafiullah.
2. Leave was granted to consider the contention of the appellant that the case of respondent Sahib Dad Khan fell under section 301 of the Code and, therefore; it was a clear case of murder and he should have been convicted under section 302 of the; Code. Leave was also granted to consider whether there were sufficient evidence to prove tire charges under sections 302 and 307 of the Code against respondent Karam Dad Khan.
3. The occurrence took place over the distribution of Shisham trees 5 on a plot of 10/12 marlas which were inherited by the deceased and his brothers and the two respondents, on the 13th of September 1966 at 10 a.m. In the area of Kacha Kamar Mashani about two miles from the Police Station Kamar Mashani. A first information report thereof was lodged at the police station the same day at 11 a.m.
4. The parties are closely related to one another being the descendants of the common ancestor, Azad Khan. The appellant is the son of P. W. Ghulam Hassan Khan, a son of Azad Khan, while the two accused respondents are his nephews being the sons of Gulbaz Khan, another son of Azad Khan.
5. Rafiullah Khan deceased was the son of Ghulam Qadir Khan, brother of the appellant. He was only 19 years old at the time of his murder, and was a student of the Engineering University.
6. The two eye-witnesses, P. Ws. Shah Nawaz and Ghulam Khawaja, are the sons of Muhammad khan, another son of Azad Khan, and are, thus, cousins of the Another eye-witness, P. W. Ghulam Muhammad Khan is the son of, Allah Dad Khan, another son of Azad Khan, and thus a cousin of the Engineering University.
7. The prosecution case is that the appellant alongwith his father P. W: 13 Ghulam Hassan Khan, his nephew, Rafiullah deceased, P. W. 14 Shah Nawaz Khan, and two other persons had come to the plot for distribution of Shisham trees. Respondents Sahib Dad and Karam Dad were, also present there for the same purpose. There arose a quarrel between respondent Karam Dad and the people of appellant---s party over a particular Shisham tree which led to exchange of abuses, among them. This was followed by respondent Karam Dad exhorting his brother respondent Sahib Dad to kill the appellant as the latter had fired at Sahib Dad on an earlier occasion.
8. Accordingly, Sahib Dad who was armed with 303 rifle fire, Rat the appellant, but it missed him. In the meanwhile Rafiullah came forward to intervene, when respondent Sahib Dad fired a second shot and it hit Rafiullah's right thigh and he fell down on the ground. At this stage respondent Karam Dad fired a pistol shot at the appellant but it too missed him. Both the respondents again fired unsuccessfully at the appellant. P. W. Ghulam Hassan Khan, father of the appellant, fired a shot from his gun at Sahib Dad in order to disarm him and it hit him on the left hand. Thereafter, the respondents left the scene with their weapons. The injured Rafiullah died on the way to the police station. A first information report was lodged by the appellant at the police station at 11 a.m. On the same day. Before the Investigating Officer proceeded to the spot, P. W. Ghulam Hassan Khan appeared at the police station and handed over his gun Exh. P. 1 with cartridges Exhs. P. 2/1-2, and an empty Exh. P. 3 to the police officer and they were-seized.
9. Respondent Sahib Dad was arrested on the same day and rifle Exh. P. 4 alongwith seven cartridges and a sling of rifle Exh. P. 6 stained with blood were seized from him under recovery memorandum Exh. P. F. Respondent Sahib Dad had no licence for this fire-arm. Subsequently, he was prosecuted under the Arms Ordinance, and convicted.
10. As regards Sahib Dad, the offences under sections 302 and 307 of the Code have been brought home to him on the ocular evidence of three witnesses who are also closely related to the accused persons. The ocular evidence have been amply corroborated by the recovery of an unlicensed rifle Exh. P. 4 with a blood-stained sling Exh. P. 6 and several '303 cartridges from him on the very day of occurrence. His own injury by a fire-arm lent further support to the prosecution case, and corroborated P. W. Ghulam Hassan Khan that he had fired at Sahib Dad to prevent him from further firing at the son of the witness.
11. The medical evidence that Sahib Dad could not have fired after he had received the fire-arm injury on his left hand demolished the defence case that Sahib Dad fired in self-defence. Sahib Dad fired thrice and this showed that he was determined to kill P. W. Abdullah. Rafiullah, however, intervened and he was hit and killed. The facts of the case, therefore, fall squarely within the terms of section 301 of the Code, and Sahib Dad must be held guilty of murder under section 302 of the Code although he never intended to kill Rafiullah.
12. The learned Judges of the High Court, in our opinion, have wrongly applied Exception IV as there is evidence to show that the murder w committed with premeditation and that Sahib Dad fired with his gun having taken undue advantage and acted in a cruel or unusual manner. The evidence proved that P. W. Abdullah was unarmed, and he did not fight. Rafiulla was unarmed and only tried to intervene like a good relation to prevent the parties from harming one another. Sahib Dad was fired at by P. W. Ghulam Hassan after his son P. W. Abdullah had beep fired at twice in order to prevent the assailant from further firing at P. W. Abdullah. In such circum--stances firing several shots at P. W. Abdullah was, indeed, taking undue advantage and acting in a cruel or unusual manner. Exception I also is not attracted because although there were exchange of abuses between the parties, there is nothing to indicate that any grave provocation was given to Sahib Dad by the deceased or for the matter of that by P. W. Abdullah. It was, thus, a deliberate act of murder on the part of Sahib Dad in order to avenge the shot fired at him by P. W. Abdullah on an earlier occasion.
13. We accordingly, alloy the appeal against Sahib Dad alone. We convict him under section 302 of the Pakistan Penal Code and sentence him to suffer rigorous imprisonment for life, and also to pay a fine of Rs. 1,000. The fine shall Inc hail to tire father of Rafiullah deceased as compensation.
14. As regards respondent Karam Dad, there was no evidence of corroboration of the ocular evidence as was in the case of his brother Sahib Dad According to the prosecution ease he fired from his pistol at P. W. Abdullah and the pistol Exh. P. 4 alongwith four cartridges was recovered from him. No empty of a pistol was, however, recovered from the spot during the investigation. It appears, however; that he too was prosecuted under the Arms Ordinance but was acquitted.
15. The appeal against Karam Dad is, accordingly, dismissed and we direct that he be discharged from his bail bond.