' CH. MUHAMMAD ARIF, J.----This Jail Appeal is directed against judgment, dated 12-4-1992 of the Lahore High Court, Lahore in Criminal Appeal No.382 of 1989 whereby appellant's appeal, against his conviction by a learned Additional Sessions Judge, Sheikhupura on 30-4-1989 in case F.I.R.
No.182 of 1987, dated 9-7-1987 under section 302/34 registered at Police Station Sharaqpur Sharif, Tehsil Ferozewala, District Sheikhupura, was partly allowed altering his sentence of death to life imprisonment.
2. As culled out from F.I.R. (Exh.P.C.), the prosecution case against the appellant was that he alongwith his brother Noor and maternal uncle Khadim were responsible for the occurrence, dated 9-7-1987. First informant Muhammad Mansha was in cultivating possession of agricultural land in village Goharpur where his younger brothers, Khalid Hussain (given up P.W.) and Abid Hussain deceased, were also residing with him. On the fateful day at about 4-00 p.m. Abid Hussain deceased was levelling the lands with a tractor. He weeded out some grass and threw the same on the nearby lands of Karam Din. Appellant Nazar Hussain @ Nazra his brother Noor and their maternal uncle Khadim picked up the said grass and threw it back. They also abused the deceased whereupon first informant's mother Mst. Nawab Bibi P.W.6 and another relative of their namely, Muhammad Yaqoob (not examined) were attracted to the scene of occurrence. All efforts on the part of the said P.Ws. To bring about a patch up remained unsuccessful. Khadim Hussain and Noor (acquitted accused) asked the appellant to fetch the gun from his house. He rushed to the house and came back with a .12 bore gun and, after both the acquitted accused had exhorted him to teach a lesson to Abid Hussain deceased, he (appellant) fired a gunshot hitting the deceased Abid Hussain in his chest. This injury resulted in his death shortly thereafter. Although Nazra appellant intended to make another shot but on account of many residents of the village having collected on the spot, he did not do so and ran away from the spot alongwith his co- accused. Leaving his brother Khalid Hussain, maternal uncle Amanat Ali and mother Mst. Nawab Bibi with the dead body to guard it, first informant Muhammad Mansha proceeded to. Police Station Sharaqpur, located at a distance of about 4 miles from the place of occurrence to lodge a report. On his way at Adda Tredaywali, he met Sub-Inspector Ghulam Haider P.W.11 who recorded his statement Exh.P.C. At 5-00 p.m. And the same was sent to the police station and stood reproduced in the formal. F.I.R. Exh.P.C./1 recorded by Moharrir Head Constable P.W.4 at 5-30 p.m.
3. Sub-Inspector Ghulam Haider (P.W.11) proceeded to the place of occurrence and prepared injury statement Exh.P.F. And inquest report Exh.PG of the deceased. The dead body was sent to the mortuary for postmortem examination through Constables Zulfiqar P.W.2 and Muhammad Naseeb (not examined). He prepared a rough site plan Exh.P.H., took the blood-stained earth into possession from the place of occurrence and sealed it into a parcel vide memo. Exh.P.D. Attested by Muhammad Tufail P.W.7 and Shahana (not examined). P.W.11 also recorded the statements of the P. Ws. On 10-7-1987 Constable Zulfiqar produced before 'him the last worn bloodstained clothes of the deceased shirt P.1 and Chaddar P.2 which were taken into possession by S.-I. Ghulam Haider vide memo. Exh.P.A. Attested by Amanat All P.W.10 and Bashir Ahmed (not examined). On 22-7-1987 S.-I. Ghulam Haider P.W.11 arrested Nazar appellant from the area of village Phharianwala along with a shot gun Exh.P.3. Appellant also had with him a licence of the gun in the name of his maternal uncle-Khadim Hussain. Both, the gun and the licence, were secured vide Memo. Exh.P.J.
Which was attested by Muhammad Saddiq P.W.8 and Bashir Ahmed (not examined). Appellant's co-accused were also arrested on the same day. The Investigating Officer got the site plan of the place of occurrence Exh.P.B. And P.B./1 prepared in duplicate by Munshi/Patwari Muhammad Ali P.W.3 which contain his own notes thereon in red ink. The appellant and his co-accused were challaned after completion of investigation in the case.
4. Dr. Ghulam Dastgir, Medical Officer, District Headquarters Hospital, Sheikhupura (P.W.9) performed the post-mortem examination on the dead body of Abid Hussain on 10-7-1987 at 7-30 p.m. And found the following injuries on it:-- "(1) A lacerated wound of entrance 3 c.m. x 3 c.m. With slight burning and tatooing on the front of right upper chest about 3 c.m. From the mid line. The fire-arm injured the skin, subcutaneous tissue, muscles, fractured the 3rd rib injuring the right lung mid part fracturing the 5th and 6th ribs on the back passed out through injury No.2.
(2) Four lacerated wounds of exit. Each measuring 1 c.m. x 1 c.m. In an area of 6 c.m. x 3 c.m. On the back of right mid chest about 7 c.m. From mid line."
' In his opinion, injury No.1 was sufficient to cause death in the ordinary course of nature and was due to sever header Gage, shock and cardio respiratory failure. Exh.P.E. Is the correct carbon copy of his post-mortem report and Exh.P.E/1 is the pictorial sketch showing the location of the injuries.
Exh.P.E. And Exh.P.E./1 are in his hand and bear his signatures.
5. There is no need for detailing the material/prosecution case as unfolded during the trial before the learned Additional Sessions Judge, Sheikhupura who had charged all the accused under section 302/34, P.P.C. And proceeded with the trial after they did not plead guilty and claimed trial.
Suffice it to say that the eye-witness account provided by Muhammad Mansha P.W.5 and Mst.
Nawab Bibi P.W.6, the medical evidence forthcoming from Dr. Ghulam Dastgir P.W.9 duly supported by Exh.P.E. And Exh.P.E./1 which was not disputed by the defence, the failure on the part of the defence to even so much as allude to any enmity with the accused appellant in his statement under section 342, Cr.P.C. As also to suggest such enmity in the cross-examination of P. Ws. 5 and 6 and the acceptance of motive for the occurrence, dated 9-7-1987 by the defence, were made the basis for convicting the appellant under section 302, P.P.C. And sentencing "him to death and to pay a fine of Rs.15,000. In default of paymentof fine he shall undergo R.I for two years", on 30-4-1989.
This judgment was the subject-matter of Criminal Appeal No.382 of 1989 and Murder Reference No.186 of 1989, and were disposed of by the Lahore High Court, Lahore on 12-4-1992. Para.17 of the impugned judgment reads thus:- "As a result of the above discussion, we are of the view that the prosecution had successfully established the guilt of Nazar Hussain @ Nazra appellant who on 9-7-1987 had murdered Abid Hussain deceased by firing a gun shot at him. He, therefore, was rightly convicted under section 302, P.P.C. By the learned trial Court. His conviction is upheld. As regards sentence, we are of the opinion that as the motive in the present case was trivial, there had been a sudden flare-up and death had been caused with a solitary shot, there are mitigating circumstances justifying the award of lesser penalty. We, therefore, alter the sentence of death to life imprisonment. The sentence of fine and compensation awarded under section 544-A, Cr.P.C. Are upheld. However, benefit of section 382-B, Cr.P.C. Is extended to the appellant. The appeal thus is partly allowed."
7. Leave was granted on 13-1-1994 in the following terms:-- "Leave is granted to consider whether it was a sudden fight and as to whether the penalty imposed on the petitioner by the High Court was appropriate in circumstances of the case."
8. Learned counsel appearing in support of this appeal has simply relied upon Rehmuddin v. The State (1973 SCM R 327) and Masoom Beg v. Muhammad Munir and another 1971 SCM R 476 to contend that appellant's conviction under section 302, P.P.C. Cannot be sustained in that the occurrence, dated 9-7-1987 was the result of sudden fight and therefore, his act does not exceed the limits of "culpable homicide not amounting to murder". According to him, what preceded the final act attributed to the appellant by the prosecution is too trivial to post him with guilty knowledge or intent to cause death of the deceased with one shot. Contrarily, learned counsel representing the State, has controverted the arguments of the learned counsel for the appellant.
Her plea is that triviality or insignificance of the act which became the motive for the occurrence in question, cannot be equated with absence of guilty intention and guilty knowledge to cause death.
9. In the precedent case of Rehmuddin supra he was convicted by the trial Court under section 304, Part I, P.P.C. And sentenced to 7 years' R.I. And fine of Rs.1,500 or in default further R.I. For three years.
He made an appeal before the High Court and one, Mohiuddin, also filed a revision praying for either the retrial of Rehmuddin or the enhancement of his sentence. These matters were taken up by the High Court together and holding that in the absence of any appeal against acquittal having been filed the retrial could not be ordered but that case for enhancement of the sentence appeared to be imminently just. His sentence was accordingly enhanced to transportation for life which was the maximum sentence under section 304, Part 1, P.P.C. Alongwith the fine awarded by the trial Court. This Court dismissed the appeal by finding that the learned Additional Sessions Judge, Mardan had held the appellant as guilty under section 304, Part I, P.P.C. Which finding necessarily implied that the learned Judge held that the appellant had caused the injury "at least with the intent of causing an injury which is likely to cause death ." Last but fourth para. At page 332 of the report reads thus:-- "The facts and circumstances of this case also amply support this finding. The evidence is that with the exchange of hot words and abuses, the father of the appellant called upon his sons to beat the deceased. Thereupon the appellant took out a dagger from the fold of his trousers and stabbed the deceased on the chest on the right side between the 8th intercostal space.
' He was, therefore, liable under Part I of section 304, P.P.C. And the maximum sentence under this Part is imprisonment for life."
' The succeeding paragraph of the report unambiguously stated that the High Court had not acted illegally in enhancing the sentence of the appellant to the maximum period of imprisonment allowable by law. The appellant had clearly acted in a brutal and cruel manner and also taken undue advantage of an unarmed person. He was, therefore, rightly sentenced.
10. In the case of Masoom Beg supra, the first respondent-Muhammad Munir was tried by the trial Court under section 302, P.P.C. And convicted under the said section and sentenced to transportation for life and a fine of Rs.1,000 and in the default of payment of the fine, to further rigorous imprisonment for four years. On appeal a learned Judge of the former High Court of West Pakistan, Lahore, altered his conviction from section 302, P.P.C. To Part I of section 304, of the Pakistan Penal Code and sentenced him to rigorous imprisonment for five years. This Court dismissed the appeal filed by Masoom Beg afore-referred after observing that the trial Court was quite right in recording the conviction of respondent Muhammad Munir as the fatal blow was inflicted by him "without premeditation in a sudden quarrel in the heat of passion. The mere fact of carrying a knife does not imply that the accused went to Anarkali with the intention to kill the accused. As the deceased went there despite the prohibition of the deceased, he might have thought it prudent to take a knife with him in order to defend himself in the event of an attack by the deceased.
' The knife used was not big in size.
' This was rather in the nature of a pen knife. This was not certainly a dagger. The nature of the knife carried by the accused was not such as would imply that he had an intention to kill. He did not use the knife as soon as he saw the deceased. The accused was first given a provocation by the deceased by showing his remonstration against his visit to Anarkali despite prohibition. In fact, he did not use the knife until there was an exchange of abuses followed by grappling. The learned Single Judge found on the basis of the evidence of P.W.11 Zafar Ali that the deceased was better built and stronger than the accused. In these circumstances the fourth exception to section 300, P.P.C. Seems more applicable than the second exception. In either case, however, I do not think that the High Court order requires any interference.
11. The afore-referred excerpts from both the precedent cases obviously relate to the peculiar facts and circumstances thereof, respectively. Hence there is neither any material on the record to link such facts of the precedent cases to the instant case nor even the findings by the trial Court and the Division Bench of the High Court in relying upon the eye-witness account coming from P. Ws.
Mansha and Mst. Nawab Bibi has been shown to be suffering from any taint whatsoever. The plea of the defence in this case that the prosecution evidence consisted of statements of related, interested and unreliable witnesses who had not seen the occurrence and that motive attributed to the appellant was not only false but weak to prompt him to kill the deceased, was repelled with the admitted position (by the defence) that there was no previous enmity between the parties. The learned Division Bench of the Lahore High Court took into account the natural course of events in relation to the eye-witnesses in the case, who had been attracted to the scene of occurrence on account of their residence near thereto, held the occurrence having taken place in broad daylight also running counter to the plea of mistaken identity and that triviality of motive would not tantamount to giving a clean chit to the defence for establishing that case was false. We are not inclined to the view that the appellant did not possess the requisite mens rea for causing the death, in this case. He went to his house, picked up the licensed gun of his maternal uncle Khadim Hussain and made fire on the deceased hitting him in the chest. The time that he took in coming back to the place of occurrence with the gun has not been shown to be insufficient to clothe him with the responsibility of his criminal act i.e., taking life of the deceased by making a fire which hit him in the chest. Both, mens rea and actus rea, are clearly discernible in the murder of deceased in the case on 9-7-1987. The conviction of the appellant under section 302, P.P.C. Was rightly upheld by the appellate forum and altering his sentence from death to imprisonment for life as also allowing him the benefit of section 382-B, Cr.P.C. By considering that motive in the case was trivial, there had been a sudden flare-up and death had been caused with a solitary shot, has not been shown to be suffering from any taint to justify interference therewith.
' This appeal is accordingly dismissed.