1974 PLP 324 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal, by special leave, arises out of a judgment of a Division Bench of the Peshawar High Court up, holding the convictions of the appellants herein but reducing their sentences from death to transportation for life. The first two appellants, who are the sons of one Akram Khan, were tried along with their father and one Abdullah Shah, a friend of theirs, for the murder of one Umar Khan, in furtherance of their common intention, during the night of the 12th and 13th of July 1970, in the area of village Gidar within Charsadda Police Station. The learned Additional Sessions Judge, Peshawar, convicted all of them under section 302/34, P. P. C. and sentenced each of them to death. According to the prosecution case, the deceased Umar Khan along with his two sons, Kapoor Khan (P. W. 1) and Nadir Khan (P. W. 2), left his house at about 1.0 p.m. to irrigate his fields. White they were doing so, they found that the flow of water in the channel began to diminish after about an hour. They proceeded upstream to find cut the cause of the decrease in the flow of water. When they reached Band Gadar, they found the appellants present there along with their father Akram Khan. They also found that the water had been diverted to the jandar of Akram Khan. The deceased accordingly enquired from Akram Khan as to why they had diverted the water. This led to an altercation, and the deceased who was himself armed with a gun and a pistol directed his sons to remove the obstruc tion. His sons tried to remove the same, but at this point of time Akram Khan caught hold of the muzzle of the gun of the deceased and ordered his companions to kill him. Thereupon, Umar Khan, Ayub Khan and Abdullah Shah each fired one shot at the deceased and dropped him dead to the ground. In the party of Akram Khan, all except Akram Khan were armed with guns. Akram Khan alone carried no weapon. Seeing this Kapoor Khan and his brcther Nadir Khan ran back to the village and informed their relations about the occurrence. When they returned to the Band with their relatives, they found the deceased lying there, but the culprits had gone away taking with them the licensed shot‑gun and the pistol of the deceased. Kapoor Khan then proceeded to Charsadda Police Station four miles away and lodged the first information report at 3 a.m. The Investigating Officer recovered blood‑stained earth, two 12 bore empty cartridges, a card‑board wad and a piece of paper from the spot. He also took into possession ten pellets which the doctor had extracted from the dead body at the time of post‑mortem examination. This examination, which was conducted at 9‑30 a.m. of the 13th of July, 1970, revealed three fire‑arm wounds of entry on the body of the deceased as follows :‑‑‑ (1) One wound of entry on posterior surface of skull 2' posterior and 1' above the right ear, measuring 1'x 1 Charring was present ; (2) One wound of entry on front of chest just to the right of medial line in level of nipple, measuring 1 x ". Charring was present (3) One wound of entry on lateral side of left side chest measuring 1' x 1'. Charring was present. There was no exit wound corresponding to injuries Nos. 2 and 3 but there was an exit wound corresponding to entry wound No.

1. The pellets from this wound had come out on the left side of the face and the temporal region in such a way that brain tissues were completely protruding out and pieces of bones were scattered. At the trial Akram Khan pleaded alibi saying that two days before the incident he had gone to village Sher Pao with tableeghi jamaat and returned to the village only on learning that he had been falsely involved in the case. His son Umar Khan also set up an alibi claiming that he had gone to village Manga three days before the occurrence in connection with the marriage of a son of one of his relative. He returned to the village on learning of the false implication and surrendered himself to the police. The rest simply pleaded false implication. The direct evidence in this case was furnished by the two sons of the deceased, Kanpoor Khan (P. W. 1) and Nadir Khan (P. W. 2). They fully supported the prosecution story. One Sher Zaman also deposed on behalf of the prosecution and proved that the deceased's turn of water commenced at 10 p.m. when his own turn ended. The accused also examined two witnesses in defence, namely, the Girdawar Irrigation Circle and the Halqa Patwari, to prove that the deceased had no right to the water at this point of time. The trial Court, however, after considering this evidence, came to the conclusion that Akram Khan had no right to interfere with the user of water by the deceased who was then in possession of it and consequently no right of private defence of property accrued to Akram Khan or the appellants. The direct evidence of the two sons, in spite of their relationship, was accepted, as they were considered to be natural witnesses having no reason to falsely implicate Akram Khan and his sons. The abscondence of the present appellants was also treated as a piece of corroborative evidence confirming their guilt. The appellants and Akram Khan were accordingly all convicted under section 302/34, P. P. C. and each sentenced to death. Akram Khan alone was arrested on the 13:h of July 1970. His two sons absconded but surrendered themselves on the 18th of July 1970, and Abdullah Shah surrendered himself only on the 21st of July 1970. It appears that the accused were also charged under section 404/34, P. P. C. ; but since no weapons were recovered from any of the accused, they were acquitted of the said charge. In appeal and reference, the High Court substantially agreed with the findings of the trial Court but acquitted Akram Khan, the father, said to be aged about 93 years, on the ground that a man of his age was hardly likely to be out at this time of the night and that too without any arms. Further more, even if he was present, he could not be made constructively liable, as the incident was a sudden affair in which he did not take any prominent part and had been assigned only a minor role ; namely, that of altercation and holding on to the muzzle of the gun of the deceased. The appeals of the rest were, however, dismissed and their death sentences were confirmed. They came up to this Court for special leave to appeal, but this Court also took the view that the High Court was perfectly justified in relying upon the evidence of the two sons of the deceased. It was also confirmed that the pleas raised by the defence were not available to them being wholly without any foundation. This Court, however, thought that the question of sentence needed reconsideration, as it was not possible "to say with certainty as to which of the petitioners shot hit the deceased". Learned counsel appearing in support of this appeal has contended that, since the incident occurred near about midnight, the chances of definite recognition were remote. It could not, therefore, it is urged, be said as to who had shot which shot. Learned counsel also referred us to the evidence of Kapoor Khan (P. W. 1) to show that the witness when asked by the Court to give the details of the fire shots of the accused could not do so and had to admit that he could not make out as to who had fired which shot although he insisted that each of the three accused fired a shot. In any event, learned counsel contends that since this was not a case of premeditated murder but a case of murder after an altercation followed by a sudden fight at a chance meeting in which each accused had fired only one shot, the maximum sentence of death was not called for. In support of this contention, he has relied on the decisions of this Court in the cases of Sikandar v. The State (P L h 1966 S C 555) and Muhammad Saleem v. The State (1972 S C M R 249). In the first case there was a sharp and angry quarrel between two groups followed by grappling and a fight in which fist blows were at first exchanged and it was after this that a knife was used by the accused. In these circumstances, it was held that a sudden quarrel imports provocation on both sides, and unless it is artificially raised as an excuse for making a pre‑determined fatal attack, the responsibility for the provocation and the raising of tempers, which necessarily follows a quarrel is, under the law, to be shared by the parties equally, and that "when the quarrel is followed by a direct clash, the Courts cannot fail, . . . . . . to take note of the fact that thereby a great heat is imported into the affair". The principle, however, that was laid down by the Court in this case was to the following effect :‑ "A crime committed in hot blood, for the raising of which the victim is equally responsible with the offender, is not to be visited with the same punishment that the law reserves for deliberate offences of the same Kind, committed in the cold blood that is with malice afore thought. " Applying these principles to the facts of the present case, we find that though there was a sudden quarrel, no fight followed this quarrel, for, the deceased, even though armed with a gun and a pistol, did not use either of his weapons and even suffered Akram Khan to take hold of the muzzle of his gun. The appellants, nevertheless, surrounded him and each fired a shot from very close range on very vital parts of his body at a time when their father was still holding on to the muzzle of the gun carried by the deceased. The fact that the shots were fired from close range is confirmed by the medical evidence which shows charring around each wound. The fact that more than one weapon of a different caliber was used is also confirmed by the different measurements of the tire‑arm wounds of entry found on the deceased. We cannot therefore doubt the direct evidence that each one of the accused had fired a fatal shot at the deceased. This was not a case of a single shot hitting the deceased when fire had been opened by three persons. Each shot in the present case found its mark and injured a vital organ. Both Kapoor Khan and Nadir Khan had furthermore stated that the night was a moon‑lit night and they had recognised the accused not only by face but also by voice, since they had talked to each other during the course of the altercation. The identification of the culprits was not also in doubt. On these facts, the conclusion seems irresistible that each of the appel lants took deliberate aim at the deceased from close quarters and fired at him. It is not without significance that no injury was caused to the sons of the deceased, who were actually removing the obstruction, but the deceased alone was made the butt of the attack. The intention, therefore, was clearly to kill the deceased. The argument that three shots could not have been fired at the deceased while Akram Khan was holding on to the muzzle of the gun is without any substance. If the shots were fired from charring distance, they were fired in such a way that Akram Khan should not be hit by any one of those shots. This would also confirm that there was sufficient light to distinguish between Akram Khan and the deceased. The case of Muhammad Saleem (1972 S C M R 249) too was a case of stabbing after an exchange of abuses and fist blows. The knife in that case was taken out from the fold of the loin‑cloth by the appellant after he bad received several fist blows. This case too, therefore, came within the principle enunciated in the case of Sikandar v. The State. Learned counsel has also referred us to a decision of a Division Bench of the former West Pakistan High Court, Karachi Seat, in the case of Moula Bux v. The State (1972 P Cr. L J 100), where too it appears that the deceased had gone up to the accused and picked up a quarrel over the flow of water, and the accused, without premeditation, had fired his gun on the deceased when the latter attempted to remove the obstruction in the watercourse wrongly placed by the accused. The learned Judges of the High Court is that case unfortunately did not notice any of the decisions of this Court but pur ported to act on the theory that it was the decease who went to the appellant and picked up a quarrel on the flow of water, exchanged abuses with the appellant and then defying the appellant began to remove the obstruction in the watercourse. In these circumstances, the High Court thought "that the act of the appellant lacked premeditation". If the facts of that case are correctly stated, then the High Court was, in our view, wrong in reducing the sentence. The facts which can be gathered from the judgment were that the appellant is that case too had wrongly interfered with the flow of water to which the deceased was entitled. The deceased had gone upstream and had asked the appellant as to why he had interfered with the flow of water, upon which an altercation ensued and there was an exchange of abuses. The deceased then tried to remove the obstruction in the water channel, but the accused opened fire and fired three shots, as confirmed by the recovery of three crime empties which subsequently matched the gun seized from the appellant. In these facts, the appellant in that case ought not to have been given the lesser punishment. If the decisions of this Court, earlier referred to, had been brought to the notice of the learned Judges of the High Court, the result might well have been different. The mere fact that the encounter was sudden and the killing was done after an altercation does not, in our view, justify the imposition of the lessee sentence. if a person fires at another with such an inherently dangerous weapon as a gun from very close range, then he clearly intends to kill that person, and if the firing is without any excuse or without any provocation, then it is clearly cold‑blooded murder, for which the sentence is death. We cannot, therefore, agree with the learned counsel that this is a fit case in which, consistently with the uniform practice of this Court not to interfere on the ground of sentence alone except where a question of principle is involved, we can reduce the sentences which have been confirmed by the High Court. In saying so, however, we must also point out that the High Court confirmed the death sentences on the 1st of October 1971. Leave was granted in this case on the 20th of April 1972, and the appeal has now been disposed of on the 3rd of December 1973. The appellants, therefore, have had an expectation of life for more than two years and this is a fact which may be taken into account by the authorities empowered to commute sentence of death. This is not a sufficient ground for the reduction of a sentence by this Court on any legal ground. With this observation, therefore, this appeal is dismissed. The appel lants may approach the Executive Authorities for the commutation of their sentences, if so advised. Appeal dismissed,