' ASIF SAEED KHAN KHOSA, J.--- Muhammad Arshid and his brother Javed Akhtar were convicted by the learned Sessions Judge, Rajanpur vide judgment, dated 8-6-1994 for an offence under section 302/34, P.P.C. Muhammad Arshid was sentenced to death whereas Javed Akhtar was sentenced to imprisonment for life. They were also ordered to pay a sum of Rs,30,000 each to the heirs of Ehsan Fareed deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For four months each. Benefit under section 382-B, Cr.P.C. Was extended to Javed Akhtar. Through the same judgment the learned trial Court had acquitted the convicts father and co-accused Muhammad Ismail. Both the convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,119 of 1994. Asghar Ali complainant has filed Criminal Revision No,142 of 1994 before this Court seeking enhancement of the sentence passed against Javed Akhtar convict. The complainant has also challenged the acquittal of Muhammad Ismail accused before this Court through Criminal Revision No,140 of 1994. We have heard the convicts' appeal and the complainant's revision petition in alongwith Murder Reference No,149 of 1994 seeking confirmation of the sentence of death passed against Muhammad Arshid.
We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Asghar Ali complainant was a resident of Mauza Jagir Gabl, situated within the area of Police Station City Rajanpur, and was an agriculturist by profession. On 12-7-1993 the complainant's turn of irrigation water was to start at 6-00 a.m.
Before the complainant's turn of water Muhammad Ismail and his two sons namely Javed Akhtar and Muhammad Arshid were irrigating their cotton crop after borrowing somebody else's turn of, water. The complainant sent his son Ehsan Fareed to irrigate the complainant party's crop of Jantar at about 6-00 a.m. When Ehsan Fareed went near the outlet of the water channel Muhammad Ismail and his sons Javed Akhtar and Muhammad Arshid started abusing him. Upon hearing the noise Asghar Ali complainant went there. In the meanwhile the noise also attracted Sadaqat Maqsood, who was going on a tractor on the bank of Qutub Canal, to the spot. Upon a query made by Sadaqat Maqsood Ehsan Fareed told him that it was his turn of water but Muhammad Ismail, etc. Were not letting him avail of that. Sadaqat Maqsood told Ehsan Fareed that if it was his turn of water then he should go ahead and irrigate his field. Suddenly Muhammad Ismail took Ehsan Fareed in his clasp and Javed Akhtar gave a hatchet blow on Ehsan Fareed's head. In his defence Ehsan Fareed also gave a Kassi blow on Javed Akhtar's right shoulder.
Muhammad Ismail then instigated his son Muhammad Arshid not to spare Ehsan Fareed alive.
Upon that instigation Muhammad Arshid took out a .12 bore gun from the nearby Jantar crop and fired at Ehsan Fareed from a close range. The fire hit Ehsan Fareed on his front chest and upon receipt of that injury he fell down and became unconscious. Sadaqat Maqsood then tried to apprehend Muhammad Arshid but he was given a hatchet blow on his head by Javed Akhtar and a Soti blow on his right shoulder by Muhammad Ismail. When Asghar Ali complainant tried to go near the assailants he also received a hatchet blow on his right hand given by Javed Akhtar.
Thereafter, the assailants went away with their weapons towards their houses. Arrangements were then made to take the injured persons to the hospital on a tractor-trolly. Ehsan Fareed, however, succumbed to his injuries on their way to the hospital. The complainant then took the dead body of his son to the police station on the tractor-trolly for lodging a report in respect of that incident.
3. Asghar Ali complainant lodged F.I.R. No,149 (Exh.P.A.) at Police Station City Rajanpur at 6-40 a.m.
On the same day which was recorded by Ghulam Yasin, Inspector/S.H.O. (P.W.9) for an offence under section 302/34, P. P.0 .
4. After recording the F.I.R. Ghulam Yasin, Inspector/S.H.O. (P.W.9) took up the investigation of this case, prepared injury statement (Exh.P.O.) in respect of Asghar Ali complainant, injury statement (Exh.P.R.) in respect of Sadaqat Maqsood, injury statement (Exh.P.P.) and inquest report (Exh.P.Q.) in respect of Ehsan Fareed deceased and sent the injured to the hospital and the dead body to the mortuary for autopsy. He also learnt that one of the accused persons was also available in the hospital in an injured condition. So, he went to the hospital and prepared his injury statement (Exh.P.S.). He then went to the place of occurrence, inspected the same, collected a crime empty (P.9) vide memo. Exh.P.H. And blood-stained earth vide memo. Exh.P.G. Prepared rough site plan (Exh.P.T.) of the place of occurrence and recorded the statements of witnesses.
5. Post-mortem examination (Exh.P.K.) of the dead body of Ehsan Fareed deceased was conducted by Dr. Aftab Ahmad Alvi on 12-7-1993. On the same day the same doctor had medically examined Asghar Ali complainant (Exh.P.L.), Sadaqat Maqsood P.W. (Exh.P.M.) and Javed Akhtar accused (Exh.P.N.). The said post-mortem examination report and the medico-legal reports were proved at the trial by Mr. Shahid Hussain Bhatti (P.W.8).
6. After the post-mortem examination of Ehsan Fareed deceased Ghulam Yasin, Inspector/S.H.O.
(P.W.9), the Investigating Officer, secured the last-worn clothes of the deceased vide memo.
Exh.P.B. And arrested Javed Akhtar accused in the hospital on 12-7-1993. On 19-7-1993 he arrested Muhammad Ismail and Muhammad Arshid accused and also took into possession the bloodstained clothes of Muhammad Ismail accused. On 22-7-1993 he recovered gun (P.7) from Muhammad Arshid accused vide recovery memo. Exh.P.E. On the same day he recovered a Soti (P.8) and a rifle from Muhammad Ismail accused vide recovery memo. Exh.P.M. On 16-7-1993 he recovered a blood-stained hatchet (P.4) from Javed Akhtar accused vide recovery memo. Exh.P.C.
He got a formal site plan (Exh.P.J.) of the place of occurrence prepared from a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in respect of this case.
7. At the commencement of the trial the learned trial Court framed charge with two heads under sections 302/34 and 324/34, P.P.C. Against all the three accused persons to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as 9 witnesses in support of its case against the accused persons. Asghar Ali complainant (P.W.1) and Sadaqat Maqsood (P.W.2) furnished the ocular account of the incident Mr. Shahid Hussain Bhatti (P.W.8) provided the medical evidence.
Muhammad Ashraf (P.W.3) deposed about the recoveries affected from the accused persons.
Ghulam Yasin, Inspector/S.H.O. (P.W.9) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In their statements recorded under section 342, Cr.P.C. All the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Javed Akhtar accused maintained that in fact he was attacked by the complainant and the deceased and in the exercise of his right of private defense he also caused them injuries. According to him it was the complainant's own fire which had hit the deceased. He further maintained that his co-accused were not present at the spot during the incident.
Muhammad Ismail and Muhammad Arshid also took up the same stand in their statements. All of them, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defense.
10. At the conclusion of the trial, as mentioned above, the learned Sessions Judge, Rajanpur convicted and sentenced Muhammad Arshid and Javed Akhtar accused as noticed above and acquitted Muhammad Ismail accused. Hence the present appeal, revisions and the connected murder reference before this Court.
11. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General and the learned counsel representing the complainant and have also gone through the record of this case with their assistance.
12. At the outset of his arguments learned counsel for the appellants has submitted that he does not challenge the conviction of the appellants and that, in view of the peculiar circumstances of this case, he only prays for reduction of the sentence passed against Muhammad Arshid appellant.
As against that the learned Assistant Advocate-General and the learned counsel representing the complainant have argued that the prosecution had successfully proved the guilt of the appellants to the hilt and that there was no mitigating circumstance available on the record so as to reduce the sentence of death passed against Muhammad Arshid appellant. The learned counsel for the complainant has, however, stated that he does not press Criminal Revision No,140 of 1994 filed by the complainant against the acquittal of Muhammad Ismail accused.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. It was a case of a daylight occurrence and two eye- witnesses had deposed against the appellants quite consistently. Both the said eye-witnesses had the stamp of injuries on their persons to vouchsafe their presence at the place of occurrence during the incident. Javed Akhtar appellant had accepted the presence of Asghar Ali complainant at the spot and his receipt of injuries during the incident. We have found no reason to disbelieve the complainant and the narration of the incident by him. He had promptly lodged the F.I.R. With all the necessary details. The defense has failed to bring anything on the record to establish any background of bitterness, or animosity between the parties so as to prompt the complainant party to falsely implicate the appellants in the present case. These eye-witnesses had found sufficient corroboration from the recoveries affected from the appellants. The gun recovered from Muhammad Arshid appellant was found wedded with the crime-empty recovered from the place of occurrence. The , . Hatchet recovered from Javed Akhtar appellant was found to be stained with human blood. The medical evidence also provided ample support to the ocular account furnished by these eye-witnesses. We have also noticed that the stand taken by the defense and its version of the incident had remained without any proof whatsoever. In this view of the matter we find that the learned counsel for the appellants is quite justified in not challenging the finding of guilt recorded against the appellants by the learned trial Court.
14. As regards the sentence passed by the learned trial Court against Muhammad Arshid appellant we have noticed that the prosecution had failed even to allege any motive against the accused party. As mentioned above, we have not found any background of bitterness, or animosity between the parties so as to infer any premeditation on the part of the accused party. Even according to the prosecution's own case the incident in question had developed at the spur of the moment without any premeditation. Apart from that it is noteworthy that Muhammad Arshid appellant was initially not armed with a gun and that he had picked up that weapon and fired at the deceased only after the appellant's father had commanded him to do that and that too when the appellant's brother had already been given an injury with a Kassi by the deceased.
15. In this context we have seriously pondered over the possibility that Muhammad Arshid appellant's case may attract a plea of exceeding his right of self-defense or a plea of sudden fight so as to attract the provisions of section 302(c), P.P.C. (in view of the law declared by the Honourable Supreme Court in the case of Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274) but have decided against it. We have already believed the prosecution's case that it was the accused party which had launched the initial aggression in this case. A plea of self-defence or exceeding thereof is not available to an aggressor. As regards the question of sudden fight we have noticed that although the element of suddenness has been found by us to be present in the case in hand yet mere suddenness of an occurrence is not all that is required to attract such a plea. It is by now settled law (which was also till recently the statutory law) that such a plea is available only if in such a sudden fight the accused does not act in a cruel or unusual manner or does not take any undue advantage. In the present case while the parties were using ordinary implements of agriculture like a hatchet, a Kassi and even a Soti against each other the accused took out a gun and shot the deceased dead by firing at his chest. Thus, in the sudden fight that was in progress Muhammad Arshid appellant not only acted cruelly and unusually but also took an undue advantage. Therefore, his case does not attract the provisions of section 302(c), P.P.C.
16. Reverting to the question of sentence to be passed against Muhammad Arshid appellant we are also conscious of the law declared by the Honorable Supreme Court in the case of Ghulam Abbas v. Mazhar Abbas etc. PLD 1991 SC 1059 wherein it has been held that if a case attracts some of the ingredients of an exception to section 300, P.P.C. (old law which is now relevant to the present section 302(c), P.P.C.) but not all the ingredients of that exception then in such a case "the least that the Court can do" is to award the lesser sentence of imprisonment for life instead of the sentence of death. Thus, on this score as well as on the considerations mentioned in paragraph No,14 above we have felt that a sentence of imprisonment for life under section 302(b)/34, P.P.C.
Against Muhammad Arshid. Appellant would meet the ends of justice in the peculiar circumstances of this case.
17. As we have decided to reduce the sentence of death to a sentence of imprisonment for life as far as Muhammad Arshid appellant is concerned who was attributed the fatal shot at the deceased, therefore, we have not felt persuaded to enhance the sentence of imprisonment for life passed by the learned trial Court against Javed Akhtar appellant. Thus, Criminal Revision No,142 of 1994 filed by the complainant in that respect is hereby dismissed. As the learned counsel for the complainant had stated at the outset of his submissions that he does not press the complainant's Criminal Revision No,140 of 1994 filed against the acquittal of Muhammad Ismail accused, therefore, the same is also hereby dismissed as having not been pressed.
18. For what has been observed above this appeal is hereby dismissed to the extent of the appellant's conviction under section 302(b)/34, P.P.C. However, while maintaining the sentence of imprisonment for life passed against Javed Akhtar appellant by the learned trial Court, the sentence of death passed against Muhammad Arshid appellant by the learned trial Court is hereby substituted by a sentence of imprisonment for life. Like Javed Akhtar appellant Muhammad Arshid appellant shall also be extended the benefit of under section 382-B, Cr.P.C. The order passed by the learned trial Court against both the appellants regarding payment of compensation to the heirs of the deceased is also maintained.
19. As the sentence of death passed by the learned trial Court against Muhammad Arshid appellant has been set aside and substituted by a sentence of imprisonment for life under section 302(b)/34, P.P.C., therefore, Murder Reference No,149 of 1994 is answered in the negative.
' Death sentence is not confirmed.