' MUHAMMAD NAWAZ ABBASI, J.---The appellant namely Muhammad Javaid and Iftikhar Hussain sons of Muhammad Feroze, Navid Abbas son of Allah Baldish, Muhammad Feroze Khan son of Mehdi Khan and Sarfraz son of Fazal Hussain were tried for the charge under sections 302/3244/ 337-F(ii) and 337-L(ii)-G/337-F(v)/148/149, P.P.C. By the learned Additional Sessions Judge, Chakwal, for committing the murder of Ghulam Raza and causing injuries to the witnesses namely Irshad Mahmood and Pervaiz Akhtar in an occurrence taken place on 15-5-1995 in Village Dhudial, forming part of Police Station Dhudial, District Chakwal. The learned trial Court having come to the conclusion that the appellants were guilty of the charge convicted and sentenced them through judgment, dated 20-10-1996 as under:---
(i) Muhammad Javaid has been awarded death sentence under section 302(b), P.P.C. With a direction to make payment of Rs,50,000 under section 544-A, Cr.P.C. As compensation to the legal heirs of the deceased.
(ii) Muhammad Feroze Khan upon conviction under section 337-A(i) was sentenced to two years"
R.I. As Taazir and payment of Rs,2,000 as Daman to be paid to the legal heirs of the deceased.
(iii) Iftikhar Hussain was convicted and sentenced to five years' R.I. With direction to pay Rs,8,000 i,e, 1/20th of Zar-e-Diyat as Arsh under section 334, P.P.C. To Arshad Mahmood injured P.W. He was also convicted and sentenced to two years' R.I. Under section 337-F(v), P.P.C. And was directed to pay Rs,2,000 as Daman to be paid to Pervaiz Akhtar injured. However both the sentences were ordered to run concurrently.
(iv) Muhammad Sarfraz was convicted and sentenced to six months R.I. And was also directed to pay Rs,500 as Daman under section 337-L(ii), P.P.C. For causing injury to Pervaiz Akhtar.
(v) Naveed Abbas was convicted and sentenced to one years' R.I. With a direction to pay Rs,1,000 under section 337-F(i), P.P.C. As Daman to be paid to Arshad Mahmood. He was also directed to pay Rs,500 as Daman under section 337-L(ii) to Pervaiz Akhtar P.W. The appellants, however, were allowed the benefit of section 382-B, Cr.P.C.
2. The appellants through this joint Criminal Appeal bearing No,182 of 1996 have challenged their conviction and sentence, whereas the complainant has filed Criminal Revision No,14 of 1997 for enhancement of sentence of the appellants and also for setting aside the acquittal of Feroze Khan, Iftikhar Hussain, Muhammad Sarfraz and Naveed Abbas from the charge under section 302/324/148/149, P.P.C. The criminal revision was ordered to be heard along with the criminal appeal filed by the appellants.
3. The learned Additional Sessions Judge, has sent Murder Reference No,294 of 1996 under section 374, Cr.P.C. For cor firmation of death sentence awarded to Muhammad Javeed. All these matters are disposed of through this single judgment:
4. The prosecution case precisely as contained in F.I.R. Exh.P.O. Lodged by Arshad Mahmood at 1-00 p.m. On 15-5-1995 at Police Station Dhudial, District Chakwal, is that he along with his first cousin Pervaiz Akhtar was sloughing land in Village Dhudial through tractor being driven by him whereas his father Ghulam Raza was sitting on the Banna of the land when at about 12-00 noon Muhammad Feroze, Iftikhar Hussain Sarfraz armed with hatchets, Muhammad Javed armed with pistol. Muhammad Iqbal and Naveed Abbas armed with Lathis appeared at the scene. Feroze Khan while raising Lalkara that he would not allow the complainant party to plough the land inflicted a hatchet blow on the head of Ghulam Raza. Simultaneously, Iftikhar caused a hatchet blow on the right hand of Ghulam Raza whereas Muhammad Javaid fired a shot with pistol at him, which hit on his front side of the neck and succumbed to the injuries at the spot.. On the interference of first informant, Naveed Abass, Iftikhar and Muhammad lqbal caused injuries to him with their respective weapons on different parts of his body. Iftikhar Hussain caused a hatchet blow on the backside of the left shoulder of Pervaiz Akhtar, whereas Naveed Abbas caused a Lathi blow on his right shoulder and Muhammad Iqbal caused a Lathi blow on his right arm. Sarfraz caused a hatchet blow on the chest of Pervaiz Akhtar, which caused fracture of collar bone. The complainant and Pervaiz Akhtar in right of their self-defence also caused injuries to the accused with Lathi and hatchets in their possession. Amir Akhtar son of Suba Khan 'while reaching at the spot also witnessed the occurrence. The motive behind the occurrence as disclosed in the F.I.R. Was a dispute over the land.
5. Mansoor Ahmad P.W.12, S.I./the then S.H.O. Of the Police Station after registration of the case on the report lodged by Arshad Mahmood prepared injury statement of the first informant and Pervaiz Akhtar at the Police Station and sent them to D.H.Q. Hospital Chakwal, for medical examination. He while reaching at the spot prepared injury statement and inquest report of Ghulam Raza deceased and dispatched the dead body to the mortuary for post-mortem examination. During the spot inspection, he prepared rough sketch of the place of occurrence and collected blood-stained earth from the spot and secured it in a sealed parcel through memo. Exh.P.P. He also secured five empty cartridges of .30 bore pistol from the spot and took the same into possession through memo. Exh.P.Q. The tractor bearing No,2571/SAB with which the complainant party was sloughing the land was taken into custody from the spot and further hatchet P.4 and stick P.5 found lying at the spot were taken into possession through memo. Exh.P.S. The Investigating Officer took into possession blood-stained clothes i,e, shirt P.11, Chaddar P.12, Bunyan P.13 and pair of shoes P.14/1-2 along with post-mortem examination report through memo. Exh.P.FF. The accused namely Iftikhar and Navid Abbas were arrested on 16-5-1995. Muhammad Feroze and Javaid accused who were injured and were admitted in the Hospital were accordingly arrested whereas Sarfraz voluntarily appeared before him with hatchet P.6 which was taken into possession through memo. Exh.P.X.
Feroze Khan in police custody led to the recovery of hatchet P.7 from his cattle shed on 21-5-1995.
Iftikhar Hussain got recovered hatchet P.8 from his Dera, which was taken into possession through memo. Exh.P.Z. Muhammad Javaid led to the recovery of pistol- P.9 with its licence and the same was taken into possession through memo. Exh.P.AA. Naveed Abbas got recovered blood-stained stick P.10 from his house, which was taken into possession through memo. Exh.P.BB. The recovery of weapon of offence was witnessed by Ghulam Raza and Ghulam Shabbir P.Ws. Muhammad Iqbal accused being not traceable was declared as proclaimed offender and his case was separated under section 512, Cr.P.C. The site plans Exh.P.F. To Exh.P.F./2 prepared by Halqa Patwari with marginal note in the hand of the Investigating Officer and the revenue papers relating to the land in dispute as Exh.P.V. And Exh,P.W produced by Amir Mukhtar P.W. Were made part of the record. The lnvestigaitng Officer after completion of the formal investigation, challaned all the accused to face the trial.
6. Dr. Khalid Azadar, Medical Officer, P.W.1 Rural Health Center Dhudial, medically examined Iftikhar Hussain and Feroze Khan accused on 15-5-1995 and found the following injuries on their persons:-- ' Iftikhar Hussain
(1) An incised wound on the top of skull measuring from front to back 2 c.m,x 9 c.m. x bone.
(2) Complaint of pain on right shoulder with swelling 4 c.m. x 5 c.m.
' Feroze Khan
(1) An incised wound on the left lateral aspect of forehead with swelling 3 c.m. x 4 c.m. And 3 c.m. x 1 c.m. x bone deep.
(2) An incised wound on the left hand measuring 3 c.m. x 1 c.m. On the dorsal aspect of palm.
(3) An incised wound 5.c.m. x 3 c.m. With swelling of 4 c.m. x 5 c.m. x 2 c.m. On the dorsal aspect of palm of right hand.
7. Dr. Zahid Hussain P.W.5 medically examined Arshad Mahmood, the first informant, and Pervaiz Akhtar on 15-5-1995 at 4-45 p.m. And found the following injuries on their person:-- ' Arshad Mahmood
(1) Swelling 6 c.m. x 6 c.m. On right parietal region closed to mid line.
(2) Reddish contusion mark 15 c.m. x 8 c.m. On right shoulder region with swelling 20 c.m. x 10 c.m.
(3) Abrasion 5 c.m. x linear on back of left ch'est outer part.
(4) Reddish contusion mark 8 c.m. x 5 c.m. On back of left chest lower part and outer side.
(5) Abrasion 5 c.m. x 3 c.m. On back and medial side of left forearm in middle.
(6) Lacerated wound 3 c.m. x 2 c.Tn. On inner side of left cheek and angle mouth left side and left side of mandible part of corresponding tooth in lower jaw was absent.
' Pervaiz Akhtar
(1) An incised wound 8 c.m. x 3 c.m. x bone deep horizontal in direction on left scapula region upper part with swelling 12 c.m. x 5 c.m.
(2) An incised wound 2.5 c.m. x 1/2 c.m. x skin deep on back of left chest upper part close to injury No,1. Corresponding cut mark was present on Kameez and Bunyan. Both were blood-stained.
(3) Abrasion 2 c.m. x 2 c.m. With swelling 5 c.m. x 5 c.m, on back and medial side of right forearm in middle.
(4) Reddish contusion mark 7 c.m. x 3 c.m. On top of right shoulder joint.
(5) Reddish contusion mark 8 c.m. x 2.5 c.m. On top of right shoulder joint with swelling 12 c.m. x 5 c.m.
(6) Reddish contusion mark 8 c.m. x 3 c.m. On upper and outer part of right upper arm with swelling 12 c.m. x 6 c.m.
(7) Swelling 12 c.m. x 10 c.m. On back and outer part of left chest lower part.
' The same doctor conducted postmortem examination of Ghulam Raza deceased at 5-00 p.m. On 15-5-1995 and found the following injuries on the dead body:-
(1) Fire-arm wound 2.5 c.m. x 2 c.m. On right side of front of neck close to mid lines inverted margins (entry wound) directed backwards downwards and to the left chest. On internal examination, esophagus trachea, thoracic, aorta and left lung were injured and left side of chest was full of blood. There was no blackening and scorching present.
(2) Fire-arm wound 3 c.m, x 2 c.m. x everted margin on back of left chest 15 c.m, from midline and 21 c.m. From top of left shoulder, It was an exit wound of injury No,1. 7th and 8th ribs on back were fractured.
(3) Lacerated wound 7 c.m. x 3 c.m. x scalp deep on right parietal region.
(4) Abrasion 8 c.m. x 5 c.m. On back of left chest close to midline.
(5) Abrasion 10 c.m. x 4 c.m. On back and outer side of left lumber region.
(6) Abrasion 3 c.m. x 1-1/2 c.m. On right cheek close to lower lid.
(7) Abrasion 5 c.m. x 3 c.m. On back of right hand and right index finger.
' In the opinion of the doctor, the death was due to severe bleeding andshock as a result of injury No,1, which was caused by fire-arm and was individually fatal to cause death in the ordinary course of nature. He, however, has opined that injury No,2 was the exit wound of injury No,1 and injuries Nos.3, 4 and 5 were simple in nature.
8. The occurrence in the present case is admitted. Muhammad Feroze Khan in his statement under section 342, Cr.P.C. Replied to a question as under:- "The allegations are incorrect. In fact Ghulam Raza deceased, Arshad Mahmood and Pervez P.Ws.
Made an aggression on me and my son Javid co-accused when we were passing on the path driving out cattle to the pond towards village Kot lqbal, an altercation took place when Ghulam Raza, Arshad Mahmood and Pervez tauntingly remarked that they had heard the rumour that we wanted the possession of a particular piece of land from Suba Khan whereupon I and my son Javid replied that we would certainly take the possession of the piece of land when Suba Khan would hand over the physical possession to us. The deceased, Arshad Mahmood and Pervez P.Ws. Started abusing us and we replied the deceased and the two P. Ws. Mounted an assault on us, injured me and my son Muhammad Javid whereupon I and Javid acted in self-defence and I caused injuries using my hatchet from the sharp and blunt sides, while Javid accused fired a shot from his licensed pistol hitting the deceased and he received injuries. Iftikhar Hussain, Sarfraz, Muhammad Iqbal and Navid Abbas were not present there and they did not participate in this occurrence. In fact, the aggression had been committed by the deceased and myself, I and my son acted in our right of self-defence."
9. This being a case of two versions, the controversy confines only to the extent of determination that which version was correct and who was aggressor. As per prosecution version, the accused while committing aggression attacked on the complainant party when they were sloughing their land whereas according to the defence version the disputed land having purchased by the accused party was in their possession and the complainant party with an intention to occupy the same forcibly attacked on the accused party, as a result of which Ghulam Raza lost his life and both sides sustained injuries.
10. Arshad Mahmood P.W.10 and Pervaiz Akhtar P.W.11 who sustained injuries at the hands of the appellants in the occurrence have furnished the eye-witness' account. Amir Mukhtar P.W.12 reached at the spot after the occurrence and saw the appellants near the place of occurrence He, however stated that the land in dispute bearing Khasra No,750 was in physical possession of Ghulam Raza deceased since long and that Mst. Mukhan, paternal-aunt, and Mst. Kamman, grand-mother of deceased were in joint possession of the disputed land as successors of Fateh Muhammad who was issueless. He further stated that his father Suba Khan had no concern with the land of Khasra No,750, which was being cultivated by the deceased under the family settlement and firmly stated that the land pertaining to Khasra No,750 was not sold to Feroze Khan by his father Suba Khan. However, his father sold the land pertaining to Khasra Nos.378 and 379 of Village Dhudial to Feroze Khan and a mutation was sanctioned accordingly. He, however, admitted that Khasra No,750 as well as Khasra Nos.378 and 379 were part of Khewat No,447 and Feroze Khan was owner in Khewat No,447. He deposed that the accused persons wanted to dispossess the deceased from the land of Khasra No,750 on the pretext that they had purchased that part of the land from Suba Khan. He has produced copies of Register Haqdaran Zamin for the years 1939-40 and 1992-93 along with Khasra Girdawari for Kharif 1993 to Rabi 1995, which are Exh.P.U., Exh.P.V. And Exh.P.W. He deposed that when he reached at the spot, five crime empties were lying on the Banna of land at a distance of five Karams from the dead body. The evidence of injured witnesses namely Arshad Mahmood P.W.10 and Pervaiz Akhtar P.W.11 is that Muhammad Feroze inflicted a hatchet blow on the head of Ghulam Raza whereas Iftikhar accused caused a hatchet blow on the right hand of the deceased and Muhammad Javaid fired at the deceased with pistol which hit on his neck and as a result thereof he expired at the spot. Despite lengthy cross-examination by the defence, nothing material could be brought on record in support of the defence version that the land in dispute was being owned and possessed by Muhammad Feroze and that the complainant party was aggressor.
11. The crime empties recovered from the place of occurrence were found matched with 30 bore licensed pistol of Muhammad Javaid. The sealed parcels of .30 bore pistol was delivered by Mushtaq Ahmad constable P,W,7 to the Forensic Science Laboratory, Lahore, on 13-6-1995 whereas the sealed parcel of empty cartridges and sealed parcel of blood-stained earth were delivered in the office of Forensic Science Laboratory on 22-5-1995. Abdul Khaliq, Revenue Patwari Halqa, who prepared the site plans of the place of occurrence, has stated that Khasra No,750 was divided into two parts and each part measured 6 Kanals and 4 Marlas. Suba Khan had 9th share in the said Khasra, which was in joint cultivating possession of Noor, Mst, Mukhan, Mst. Kamman and Suba Khan as Bila Lagan. However, Suba Khan was not owner in the said Khasra in the revenue record. He stated that four Kanals of land in Khasra No,750-min was in physical possession of Sharaf as tenant-at-will and during his inspection on 31-3-1995, both parts of Khasra No,750 were found uncultivated. He further stated that as per Revenue Record, Ghulam Raza was not in physical possession of Khasra No,750 and that all the owners of the land in Khewat No,447 were recorded in joint cultivating possession of said Khewat, which included Khasra No,750.
12. Learned counsel for the appellant contended that in view of the fact that Suba Khan who had 9th share in Khasra No,750 which formed part of Khewat No,447 and feroze appellant having purchased land from Suba Khan in Khewat No,447, become owner in the said Khasra and he was in joint possession of the land of said Khewat and, therefore, the claim of physical possession of the deceased without ownership stood negated and the complainant party would be deemed as trespasser and, therefore, the defence version that the complainant party with a view to establish their physical possession committed aggression was proved beyond doubt. The learned counsel contended that the claim of the complainant party of ploughing the land with tractor in the light of the evidence of Amir Mukhtar P.W.12 and Abdul Khaliq Patwari P.W.4 stood falsified and the forcible entry of the complainant party into the land was established. He added that resistance of the accused party to the forcible entry resulted into a clash as a result of which the deceased' lost his life and P.Ws. As well as two accused sustained injuries. He argued that the prosecution version is further negated by the fact that at the time of clash between the parties on the path which was passing through the land of Khasra No,750, the complainant party being armed with Lathis and hatchets caused injuries to Feroze Khan and Iftikhar Hussain, therefore, the aggression of complainant party was evident and consequently the accused party while acting in exercise of right of private defence while defending themselves committed no offence. The learned counsel while concluding his arguments submitted that in any case in the given facts, it would be a case of open clash between the parties over the dispute of land and in the light of law laid down by the apex Court' in Ali Bepari's case PLD 1962 SC 502 would fall within the ambit of section 302(c), P.P.C.
For the purpose of punishment. In nutshell, he argued that even if the plea of right of self-defence is excluded, even then it was neither a case of capital punishment nor imprisonment for life under section 302(b), P.P.C.
13. Conversely, learned counsel representing the complainant with reference to the Revenue papers, which have been made part of the record contended that although the name of Ghulam Raza as such was not mentioned in the Revenue Record, but he while holding possession through Mst.Makhan and Mst. Kamman along with Noor and Suba Khan, father of Amir Mukhtar was in cultivating possession of the land as ancestral property whereas the appellants were neither owners in the Khasra in question nor were in physical possession of the land of said Khasra. He argued that Feroze Khan appellant purchased land from Suba Khan, father of Amir Mukhtar P.W.12, in the specified Khasra numbers which are found mentioned in the mutation of sale and thus, he neither purchased land from Khasra No,750 nor was given possession of the land from this Khasra.
He added that while reading the statements of Amir Mukhtar and Abdul Khaliq, Patwari in the light of Revenue Record, it would become clear that the accused party on the basis of joint ownership in Khewat No,447 made an attempt to forcibly occupy the land of Khasra No,750. He argued that no doubt the appellants namely Iftikhar Hussain and Muhammad Feroze sustained injuries in the occurrence at the hands of the complainant party with hatchets and Sotis but their injuries would not be an evidence of the aggression of the complainant party. This is not a deniable fact that the complainant was present in the land with tractor and the accused party happened there armed with fire-arm and hatchets and the version given by the defence would also suggest that the accused party in order to remove the complainant party from the land attacked on them. He contended that in the light of the fact that the accused party was neither owner nor in possession of the land and having no right of private defence of the property could not resist the sloughing of the land by the complainant party. The learned State Counsel while adopting the arguments of the learned counsel for the complainant contended that it was neither a case of self-defence nor free fight.
14. We have heard the learned counsel for the parties and perused the record with their assistance.
The occurrence is admitted by the accused with the plea of self-defence. It being a case of two versions, the pivotal question for determination would be that which party was in possession of the land at the relevant time and who the aggressor was. The perusal of the Revenue Record produced by the prosecution at the trial would show that neither Ghulam Raza deceased nor Feroze Khan appellant was owners or in possession of land bearing Khasra No,750 of Village Dhudial. Ghulam Raza admittedly was collateral of 'Mst. Makhan, Mst. Kamman, Noor and Suba Khan, therefore, despite the fact that his name did not find mentioned in the Revenue Record still he would have been in possession of the land through Mst.Mukhan and Mst. Kamman, who were joint owners of land in dispute in the Revenue Record with Noor and Suba Khan. According to the Revenue Record, the land bearing Khasra No,750 of Khewat No,447 was in joint possession of Mst. Makhan, the paternal-aunt and Mst. Kamman, the grandmother of Ghulam Raza deceased, with Noor and Suba Khan, therefore, the claim of physical possession of the deceased over the land through his paternal-aunt and grandmother as stated by Amir P.W.12 is not negated by any direct or circumstantial evidence on record. This is usual that in the joint Khata of ancestral property, the possession of the land at the spot may not be in accordance with the entries in the Revenue.
Record, therefore, it is difficult to exclude the possibility of physical possession of Ghulam Raza of the land in question through the above named ladies. Contrarily, the accused party while stepping into the shoes of Suba Khan as co-owner in the land in Khasra numbers specified in the mutation could only claim their right of possession in the said Khasra and were not supposed to disturb the possession of total Khewat No,447. This is noticeable that Suba Khan had not sold land from Khasra No,750, therefore, despite the fact that this Khasra was part of Khewat No,447, Feroze Khan appellant as vendee could not even claim joint possession of Khasra No,750 of Khewat No,447 of village Dhudial, Abdul Khaliq Patwari inspected the land on 31-3-1995 and found the same without any crop and thus, it is not clear from the Khasra Girdawri that the land was under cultivation prior to occurrence. The visualization of actual position would show that the accused party under the cover of ownership of Feroze Khan vendee of land in Khewat No,447 made an attempt to occupy uncultivated land in possession of the deceased through his maternal-aunt and grandmother which was being ploughed by the complainant party under their family settlement.
15. Thus, from the scrutiny of the evidence, the exclusive ownership and possession of the land either of the deceased or Feroze Khan appellant is not established. The evaluation of the evidence would show that the accused party under the garb of mutation of sale in favour of Feroze Khan in the joint Khata was in struggle to establish the possession at the spot and to achieve the said purpose attacked on the complainant party when the deceased and his companions were sloughing the land. The present case is of distinguishable features to that of All Bepari's case PLD 1962 SC 502 on facts. The apex Court, however, even in the said case observed as under:-- "This approach of the case was a reasonable for a basic error in the High Courts' judgment because the learned Judges never addressed themselves to the true implications of a mutual fight. By hinting at a bare possibility of accused's acting in exercise of right of private defence. The learned Judges were not justified in discarding the evidence of the eyewitnesses examined in the case. It was not sufficient for the accused to suggest as mere hypothesis or a remote possibility in order to rebut the prosecution case. In order to gain a favourable verdict, it was necessary for the accused persons to set up facts upon which they relied as exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case. This they have not done. It will suffice to say that Court's treatment of the right of private defence was far from satisfactory. In the case of Safdar Ali PLD 1953 FC 93 the Court had the occasion to examine the proper procedure to be followed in arriving at a decision on this plea.
' In that case, Chief Justice observed-- ' In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case' ."
16. In the present case, the accused having prepared them reached at the spot to dispossess the complainant and thus, as a result of resistance of the complainant, both the sides sustained injuries and Ghulam Raza lost his life. The accused party being responsible for inviting trouble on the plea of possession over the land in dispute could not raise either plea of self-defence or free fight. Still it may not be a case of vicarious liability as the accused in fact wanted to establish their possession and in the struggle, they picked up a quarrel with the complainant party during which Muhammad Javaid. Fired at the deceased. The act of homicide is Qatal-e-Amd punishable with death as Qisas under section 302(a), P.P.C. Or if the proof in either of the form as specified in section 304, A P.P.C. Is not available, it shall be punishable under section 302(b), P.P.C. With death or imprisonment for life as Tazir. Without the proof of element of premeditation, in case of homicide, the Court in its discretion is empowered to withheld the maximum penalty of death and award lesser punishment of life imprisonment. Thus, in case of voluntary killing without premeditation, the Court may, if the offence does not fall within the ambit of section 302(a), P.P.C. In the circumstances of an individual case, award lessor punishment under section 302(b), P.P.C.
Homicide has been defined as Qatal-e-Amd, which is of three categories:--
(i) Qatal-e-Amd punishable with death as Tazir under section 302(a), P.P.C.
(ii) Qatal-e-Amad punishable with death or imprisonment for life under section 302(b), P.P.C. As Tazir.
(iii) Qatal-e-Amd punishable under section 302(c). P.P.C. In the cases, which do not fall within the category of cases punishable under section 302(a) or (b), P.P.C.
Qatl-e-Amd has been defined under section-300, P.P.C. As under:-- "Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amad."
17. In all the cases of homicide, whether intentional, voluntary or involuntary, the offence has been defined as Qatal-e-Amd with its classification for the purpose of sentence. Thus, intentional and voluntary homicide is a Qatal-e-Amd punishable either under section 302(a) as Qisas or under section 302(b) as Tazir. In case of involuntary homicide, an offence falls within the category of cases, which are not punishable under section 302(a) or 302(b), P.P.C. The murder as a result of sudden fight is distinguishable to a murder as a result of free fight, therefore, in case of sudden fight, the case may attract an exception to an intentional or voluntary murder and can be covered by the category of case falling under section 302(c), P.P.C. For the purpose of punishment. However, homicide as a result of free fight is voluntary murder and ordinarily is not a case of 302(a), P.P.C.
Will be punishable under section 302(b), P.P.C.
18. We, therefore, hold that it was not a case of self-defence, which would fall within the ambit of section 302(c), P.P.C. For the purpose of punishment. However, in view of the circumstances under which the occurrence took place and the dispute between the parties in the background, we find that the essential element of vicarious liability to kill is not available therefore, we do not consider it a case of extreme penalty. The Court should take all the circumstances of the case and award the sentence, which is more befitting. The normal sentence for voluntary murder is death and lessor punishment of life imprisonment is awarded only if there are any extenuating circumstances, which can mitigate the enormity of the crime and if in a case the Court is satisfied that such circumstances exist, only then the lesser sentence provided under law is imposed. We, therefore, in the light of circumstances under which the occurrence took place are of the view that the circumstances exist in favour of lesser penalty of life imprisonment, which would sufficiently meet the ends of justice and we while maintaining the conviction of Muhammad Javaid under section 302(h), P.P.C. Reduce his sentence from death to life imprisonment. The conviction and sentence of remaining appellants is also maintained and except Iftikhar Hussain, their sentence is reduced equal to the period already undergone by them. The sentence awarded to Iftikhar Hussain is maintained. The appellants shall also pay the amount of Daman as per direction of the learned trial Court. They shall, however, be entitled to the benefit of section 382-B, Cr.P.C.
19. With the above modification in the sentences, this appeal is dismissed and for the same reasons, criminal revision is also dismissed. The murder reference is answered in the negative. The death sentence awarded to Muhammad Javaid is not confirmed.