HAMID ALI MIRZA, J.---This criminal appeal with leave of this Court dated 10-11-1998 is directed against the judgment dated 14-5-1997 in Criminal Appeal No,12 of 1996 passed by learned Judge in Chambers of the High Court of Sindh. Karachi. Whereby conviction and sentence passed by learned Vlth Additional Sessions Judge, Hyderabad vide judgment dated 6-12-1995 in Sessions Case No,105 of 1991 (State v. Mukhtar Ahmad and another) convicting the respondents under the un amended provisions of section 302 read with 34, P.P.C, 1860 as same were in the field on the date of occurrence and sentencing each of the respondent to life imprisonment and fine of Rs, Ten thousand, to the extent of respondent No,2 Umar Daraz was allowed thereby acquitted, while the conviction against respondent .No, I Mukhtar Ahmad was converted under un amended provisions of section 304, Part II, P.P.C. So also sentence passed was modified/altered to five years which was said to have been suffered by the respondent/accused Mukhtar Ahmad including the remissions thereby reducing the sentence to period already undergone by the said respondent.
2. Brief facts of the case are that complainant/appellant Bundoo on 13-12-1998 at about 4-30 p.m.
Lodged F.I.R. With Police Station Market, Hyderabad, stating therein that he was present at his house when a quarrel between the children of Umar Daraz and his children had taken place whereupon he remonstrated the children of both sides thereafter they went away. Thereafter Uamr Daraz started quarrel with complainant's son Muhammad Yaqoob and on his entrainment the matter was settled. Thereafter the complainant was at the shop of Abdul Ghafoor, his son Muhammad Ayub, lqbal and Majeed were talking with each other, in the meantime, the respondent Mukhtar Ahmad brought an iron rod from the workshop of Jaafar and went towards them on which . The complainant followed the said respondent/accused Mukhtar Ahmad, when the latter asked the complainant that his son Ayub had beaten his father Umar Daraz but at the intervention of the complainant said Mukhtar Ahmad went away issuing threat that he would not spare Ayub. The complainant went to the workshop of Abdul Ghafoor when at about 16-00 hours the respondent/accused Mikhtar Ahmad and his father Umer Daraz came, when said Mukhtar Ahmad, respondent/accused was carrying a pistol in his hand and complainants son Muhammad Ayub deceased was standing along with Nasaruddin and lqbal talking to them and in the meanwhile acquitted accused Uamr Darai instigated the said respondent/accused Mukhtar Ahmad saying that as to what he was seeing and thereafter said respondent/accused Mukhtar Ahmad fired at Muhammad Ayub causing injuries on the right side of his abdomen who consequently sell down.
The complainant, Nasruddin, Iqbal and Majeed removed him to hospital but on the way said Muhammad Ayub succumbed to injuries and the complainant lodged report alleging that respondents/accused Umar Daraz and Mukhtar Ahmad had killed his son. After usual investigation, the respondents/accused Umar Daraz and Mukhtar Ahmad were challaned before the Sessions Court where both were charged for the commission of offence under un amended provision of section 302/34, P.P.C. 1860 to which they pleaded not guilty consequently the prosecution examined as many as eight P.Ws. And the respondents/accused were examined under section 342, Cr.P.C. Who denied the commission of offence and stated that they have been falsely implicated in the case and they did not lead any evidence in defence. After recording of above evidence and hearing counsel for the parties, the learned Additional Sessions Judge convicted the respondents under section 302/34, P.P.C. And sentenced each of them to life imprisonment and fine as said above. The respondents/accused appealed before the Sindh High Court which appeal was disposed of on 14-5-1997 by learned Judge in Chamber, whereby the respondent/accused Umar Daraz was acquitted while the conviction of respondent/accused Mukhtar Ahmad was converted from section 302, P.P.C. To un amended provision of section 304. Part II, P.P.C., 1860 and his sentence was also reduced to the extent of five years which was said to have been undergone by him hence the present appeal.
3. We have heard learned counsel for the appellant/complainant and the learned counsel for the respondents and also have minutely gone through the record with the assistance of learned counsel for the parties.
4. Leave to appeal was granted by this Court to examine whether conviction of Mukhtar Ahmad accused/respondent No,1 was rightly converted by the High Court from section 302, P.P.C. To section 304, Part II, P.P.C. Whereas leave was refused against the respondent/accused Umar Daraz, thereby dismissed the petition to his extent.
5. Learned counsel for the appellant has submitted that the learned Judge in Chambers erred in law and facts in altering the conviction of respondent/accused Mukhtar Ahmad from section 302 to section 304, Part II, 1860 and also reducing/altering the sentence from life imprisonment to five years already undergone. He submitted that the deceased Muhammad Ayub was murdered by the respondent Mukthar with premeditation and it was neither sudden fight nor a case of grave and sudden provocation nor in the heat of passion. Learned counsel for respondent/accused submitted that the incident was in continuity of the first incident over the fight of children and suddenly because of provocation given by the complainant side in beating Umar Daraz, the father of respondent/accused Mukhtar Ahmad the latter fired at the deceased in the heat .Of passion, therefore alleged offence would fall under section 304, Part II, P.P.C. And not under section 302, P.P.C.
6. We find merit and substance in the submissions of the learned counsel for the appellant while do not find merit and force in the submissions of the learned counsel for the respondent/accused.
7. Admittedly it has been stated in the F.I.R. That the first incident had taken place on 13-12-1998 when a quarrel had taken place between the children of Umar Daraz the acquitted accused and the complainant when the latter remonstrated the children of both sides, who went away.
Subsequently the acquitted accused Uamr Daraz started quarrelling with the complainant's son Muhammad Ayttb the accused which matter on entrainment of complainant was also settled and thereafter when complainant's son Muhammad Ayub, Iqbal and Majeed were talking with each other, the respondent/accused Mukhtar Ahmad brought an iron rod from the workshop of Jaafar and he went towards them but again at the intervention of the complainant, the incident was averted but the said Mukhtar Ahmad, respondent/accused while leaving issued threats that he would not spare Ayub, thereafter the complainant went to the shop of Abdul Ghafoor when the respondent/accused Mukhtar Ahmad came armed with a pistol in his hand, finding. Muhammad Ayub standing with Nasaruddin and Iqbal fired at Muhammad Ayub deceased on the right side of abdomen when the latter was unarmed'. The above averment stated in the F.I.R. By the complainant Bundoo is reiterated by him in his deposition Exh.5 which would show that after the first incident the matter was settled but again attempt was made to take revenge by the said respondent/accused but it was again averted and then the respondent/accused Mukhtar Ahmad went away and came armed with pistol and fired at the deceased Muhammad Ayub who was unarmed who in consequence of the fire-arm injury died. The said complainant Bundoo was cross- examined at length but his testimony with regard to commission of offence on the part of the respondent/accused Mukhtar Ahmad could not be discredited. The testimony of complainant Bundoo would show that act of commission of the offence on the part of respondent/accused Mukhtar Ahmad was with premeditation considering that even after the earlier occurrence between the children was settled, so also his subsequent act of going to the shop of Abdul Ghafoor with iron rod having been averted but after some interval, the said respondent/accused Mukhtar Ahmad, came armed with pistol and fired at the deceased. The above testimony of P.W. I Bundoo is also corroborated by P.W.2 Nasaruddin who has deposed that after fifteen minutes of earlier incident the respondent/accused Mukhtar Ahmad at the instigation of his father fired from his pistol which hit Muhammad Ayub at the abdomen. The testimony of Nasaruddin also could not be also shaken in the cross-examination. The above testimony of two P.Ws. Is also corroborated by P.W.3 Muhammad Iqbal who has deposed that the respondent/accused fired at Muhammad Ayub at the instigation of his father Umar Daraz. His testimony also could not be discredited or shaken in the cross-examination. P.W.8 Exh.22 Dr. Mushtaq Ali has also corroborated that the injuries were caused with fire-arm to vital organs which caused multiple perforations in the small intestine, mesentery vessels were damaged which injuries were sufficient to cause death in the ordinary course of nature who also produced post-mortem report Exh.23. The respondent/accused Mukhtar Ahmad has not led any defence to his claim of innocence. From the evidence on record it would appear that first incident which had taken place between the children and thereafter the second incident, where the respondent/accused Mukhtar Ahmad brought iron rod, were averted but after fifteen minutes the said respondent came armed with pistol and fired at Muhammad Ayub who thereby was killed. This act of firing with deadly weapon at the vital parts of the deceased who was unarmed, on the part of respondent Mukhtar Ahmad would clearly amount taking undue advantage of deceased by causing his intentional death therefore, respondent's case would not fall within the Exceptions to un amended provision of section 300. P.P.C., 1860. It cannot be said that the respondent/accused Mukhtar Ahmad had no knowledge that the said fire-arm injury would not cause the death, in the ordinary course of nature when it would hit abdomen of the deceased. The plea of the learned counsel for the respondent that the incident occurred because deceased Muhammad Ayub had beaten Umar Daraz the father of respondent Mukthar Ahmad, therefore, in the heart of passion suddenly, the said Mukhtar Ahmad, respondent/accused fired upon the deceased, has no merit considering that the earlier incident of fight of the children was settled and it was thereafter that the respondent/accused brought iron bar to hit the deceased but it averted and latter he brought pistol after fifteen minutes and fired at the deceased, therefore, the said incident cannot be said to be un-premeditated hence would not fall within Exceptions to section 300, P.P.C. So as to attract section 304, P.P.C. For the award of lesser punishment considering that the respondent/accused had taken undue advantage and acted in cruel and unusual manner in dealing with the complainant's side over the petty/trivial dispute of the children of both sides. A man with common sense would know in ordinary course of nature that, in case, he would cause fire-arm injury at the abdomen the victim would die because of the said fire-arm injury at the vital organ of a person. In view of evidence and circumstances on record it could be inferred that the respondent/accused Mukhtar Ahmad acted cruelly and furiously with the deadly weapon when the deceased was unarmed and the earlier incident had subsided therefore the said offence would amount to culpable homicide amounting to murder punishable under section 302, P.P.C., 1860 as respondent/accused was knowing that his act was so dangerous and fatal and that it was likely to cause death. The Court cannot presume absence of premeditation except where the evidence and circumstances of the case justify such inference to be drawn. Reference may be made to (i)
Muhammad Nawaz v. The State 1998 SCM R 891 and (ii) Javed Ahmad alias Jaida v. The State and another 1978 SCM R 114. Wp find that the learned Judge in Chambers erred in law so also misread the evidence on record resulting in miscarriage of justice in converting the conviction from section 302, P.P.C. To section 304, Part II, P.P.C. So also altering the life imprisonment to five years already undergone by the respondent/accused Mukhtar Ahmad.
8. In the circumstances, we allow the appeal and set aside the conviction and sentence passed by the learned Judge in Chambers against the respondent/accused Mukhtar Ahmad and restore the conviction and sentence passed by the trial Court learned VIth Additional Sessions Judge, Hyderabad. The learned trial Court is directed to issue warrants for the arrest of respondent Mukhtar Ahmad who be sent to jail to serve out the remaining sentence.