' MUNAWAR AHMED MIRZA, J.---This petition for leave to appeal is directed against judgment, dated 29th October, 1996 passed by Lahore High Court in Criminal Appeals Nos.204 and 624 of 1992 and Criminal Revision No,473 of 1992.
2. Relevant facts briefly mentioned are, that occurrence had taken place on 4-5-1989 around 10.30 a.m. At Chak Kikarwala of Rahwali Talwandi, District Gujranwala, dispute arose on 3rd May, 1989, a day prior to the fateful event, over plucking of tomatos by Ghulam Hussain and Muhammad Munir (belonging to accused party) from fields of complainant side. It is the case of prosecution that some persons from complainant side went to Muhammad Munir, brick kiln contractor for placing their grievance before him. During the course of conversation Ghulam Hussain exchanged hot words with deceased Halim Akram, which also ensued into scuffle between the parties and later ended up with unfortunate incident. Muhammad Munir and Ghulam Hussain had threatened them to avenge this disgrace,.
3. It is alleged that, on 4-5-1989 at about 10.30 a.m. Deceased Halim Akram, injured Muhammad Riaz, Muhammad Saleem and Muhammad Saeed were working in their potato fields when four persons namely Muhammad Latif, Ehsan Elahi (respondent herein), Muhammad Munir and Muhammad Hanif duly armed arrived there. They called out deceased Halim Akram and opened firing, which caused fire-arm injuries to Halim Akram and P.W.6 Muhammad Riaz, Halim Akram succumbed to the injuries in Hospital. P.W.5 Muhammad Akram lodged F.I.R. No,120 of 1989 with Police Station Cantt. Gujranwala at 2.00 p.m. On the same day. After completion of investigation concerned police submitted challan against respondents Muhammad Latif and Ehsan Elahi.
Whereas Muhammad Hanif and Muhammad Munir were declared innocent during police investigation and were got discharged by the Ilaqa Magistrate vide order, dated 15-11-1989.
However, complainant aggrieved from same directly filed Sessions Complaint No,51 of 1990 before Additional Sessions Judge, Gujranwala. Challan submitted by police and above complaint were taken up together by the trial Court. On completion of trial learned Additional Sessions Judge, Gujranwala by means of judgment, dated 30-1-1992 found Muhammad Latif guilty for causing murder of Halim Akram by exceeding his right of self-defence and sentenced him to undergo imprisonment for life besides fine of Rs,20,000 or in default further R.I. For one year, whereas respondent Ehsan Elahi was held responsible under section 307, P.P.C. And on conviction sentenced to R.I. For seven years besides fine of Rs,5,000 or in default further R.I. For six months with benefit of section 382-B, Cr.P.C. The co-accused Muhammad Munir and Muhammad Hanif were acquitted for the charge. Relevant observations are reproduced below:-- "As a result of my above discussion, I reached the conclusion that complainant party launched offensive attack on the accused party on their brick-kiln. The assailants (complainant party) thinking that they might not be over-powered by the accused and others gathered there, started retreating towards their fields under the cover of continued exchange of firings. Latif and Ehsan Elahi accused while armed with 12. Bore. Gun and revolver, respectively exceeded their right of defence and caused the murder of Halim Akram deceased and injured Muhammad Riaz P.W., while reaching the fields of complainant from their brick-kiln. Since they were sharing common intention of each other, therefore, they are responsible for their individual acts.
(19) For all these reasons, Latif, accused killed Halim Akram deceased, by exceeding his right of defence. He is held guilty under section 302, P.P.C. Latif accused is a young man of 22 years of age.
He is, therefore, awarded imprisonment for life and to pay a fine of Rs,20,000 or in default to suffer R.I. For one year. Half of the fine, if realized, would be paid as compensation to the legal heirs of Halim Akram deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Shall be given to the accused. Accused Ehsan Elahi is held guilty under section 307, P.P.C. He is, therefore, awarded imprisonment for seven years R.I. And fine of Rs,5,000 and in case of default of payment of fine, he shall further undergo six months R.I. The amount of fine, if realised, half of it shall be given to Muhammad Riaz P.W. Benefit of section 382, Cr.P.C. Shall be given to the accused. The prosecution has miserably failed to prove the charge of murder against Munir and Hand accused beyond reasonable doubt, therefore, they are acquitted for charge, by extending benefit of doubt to them.
They are present before the Court, on bail. They are discharged of the bail bonds."
4. Respondents aggrieved from above conviction and sentence had preferred Criminal Appeal No,204 of 1992 before Lahore High Court. Petitioner Muhammad Akram filed Criminal Appeal No,624 of 1992 and State instituted Criminal Revision No,473 of 1992 praying for enhancement of sentence awarded to respondents. All these matters were decided by Lahore High Court through common judgment, dated 29-10-1996 whereby conviction awarded to respondent Ehsan Elahi was upheld whereas sentence recorded against the respondent Muhammad Latif was reduced from life imprisonment to R.I. For a period of seven (7) years. Fine as awarded by the trial Court was upheld.
Above referred appeal and revision were consequently dismissed. Operative portion of the judgment is reproduced below:-- "It, however, appears that while exercising the right of private defence the accused party had caused more harm than was necessary and thereby exceeded the right of self-defence available to them under Exception 2 of section 300, P.P.C. No doubt it is very difficult question to determine whether an accused has or continues to have a right of private defence, and when or whether it has come to an end, is in every case essentially a question of fact to be decided according to the circumstances of each case. Frankly speaking it may be difficult to Judge accurately the moment when the right of private defence comes to an end, but so long as the apprehension of hurt or grievous hurt continues to exist, the right of self-defence continues, and an accused person cannot be penalised for not wieghing in golden scales the amount of force, which should suffice to allay the apprehension of danger from the aggressor, but when the apprehension has disappeared and ceased to exist, the right of private defence comes to an end. In the instant case the deceased, while retreating from the brick-kiln of Muhammad Munir acquitted accused, continued firing and as such the apprehensions of hurt or grievous hurt would continue to exist till his gun had become silent. It is for that reason that accused side also continued firing till the deceased had reached his field, thereafter the appellant acted beyond the prescribed limits of Private defence. As such Muhammad Latif alias Pappu appellant having caused the death of Halim Akram by exceeding the right of private defence shall be liable to be convicted under Part I of the section 304, P.P.C.
However, even according to defence version Muhammad Riaz was not carrying any weapon nor any firing was attributed to him, therefore, his assailant namely Ehsan Ullah was rightly convicted and sentenced under section 307, P.P.C. For causing murderous assault upon him.
(18) In view of our above discussion, the conviction of Muhammad Latif appellant is converted to section 304 Part I, P.P.C. From section 302, P.P.C. And his sentence of imprisonment for life is accordingly reduced to 7 years R.I. Proportionate to his offence. With the above modification in the conviction and sentence the appeal of Muhammad Latif is dismissed. The sentence of fine awarded to him by the learned trial Court is, however, upheld. The conviction and sentence awarded to Ihsan Elahi appellant does not call for interference for the reasons already stated above. His appeal is also accordingly dismissed.
(19) In consequence, Criminal Appeal No,624 of 1992 and Criminal Revision No,473 of 1992 are also dismissed.
(20) The benefit of section 382-B, Cr.P.C. Given to both the appellants by the learned trial Court is extended to them throughout."
5 Being dissatisfied from above judgment of High Court petitioner has filed present petition for leave to appeal seeking enhancement of sentence awarded to respondents.
6. Mr. Shahid Hussain Kadary, Advocate Supreme Court, strenuously urged that respondent with their common intention had attacked deceased Halim Akram when he was working in his fields and caused him fire-arm injuries. They also inflicted fire-arm injuries upon P.W.6 Muhammad Riaz.
According to him arrival of respondents alongwith their companions at the cultivated fields of complainant side clearly displays premeditation for committing brutal murder of young body.
Learned counsel, thus, stressed that prosecution evidence has duly established guilt of the respondents and they ought to have been awarded capital punishment. It was argued that Courts below have not properly appreciated evidence because deceased and others were empty handed and respondents were aggressors, therefore, benefit of self-defence as granted by Courts below did not arise.
7. We have carefully gone through entire record of the case, in the light of above submissions. It appears from prosecution evidence that brick-kiln of the accused party is located close to the fields of the complainant's side. However, evidence is also suggestive that incident had taken place near brick-kiln. Trial Court while awarding conviction to respondents made observations that incident had taken place at brick-kiln where complainant party was aggressor but respondents have exceeded their right of self-defence. Be that as it may, there certainly exists cross-versions creating reasonable doubt as to which party was aggressor. Both the Courts below on this aspect has given concurrent findings. On proper reappraisal and thorough analysis of the material on record we do not find any glaring defect or legal infirmity in the conclusions drawn by High Court.
There is no gainsaying the fact that punishment must be commensurate with gravity of the offence which in the peculiar circumstances of the case appears to have been committed. In that background of the case and proper reappraisal of evidence, we are of the view that High Court in the impugned judgment had adequately considered all aspects in awarding sentence. Therefore, same does not warrant interference. Consequently petition having no merits is dismissed and leave prayed for declined.