P L D 1961 Supreme Court 230 (PLP)

CORNELIUS, C. J.‑This appeal comes before the Court by special leave granted to the appellant Ghulam Hussain, to con sider the correctness of an order of a Division Bench of the High Court of West Pakistan sitting at Peshawar whereby the convic tion of the respondent Zainullah under section 302, P. P. C. for the murder of one Ghulam Nabi, brother of the appellant Ghulam Hussain, was altered to section 304, Part I; P. P. C. and a sen tence of 10 years' imprisonment was imposed. The facts of the case are simple. There had been some days earlier a quarrel between Zainullah and his brothers on one side and one Faqir Muhammad, cousin of Ghulam Nabi, on the other in the course of which Faqir Muhammad was beaten with fists and kicked. An attempt being subsequently made to bring the parties, who are residents of the same village, into harmony with each other, there was a gathering some time during the day on the first July 1959, at which Faqir Muhammad, and Zainullah were reconciled with each other, and it is said that they embraced each other. In token of the newly made peace a lamb was slaughtered by the accused Zainullah and his brothers and that night both parties partook of the meat at the shop of one Jafar Khan. It was shortly after this party had broken up that the. incident occurred. The deceased Ghulam Nabi was standing close to a fruit vendor Painda Gul, in a street which appears to be within the area of Peshawar city, as it is provided with street lights. The time was about 8‑30 p.m. and the street lights were burning. One Nazar Muhammad was engaged in buying some mangoes from Painda Gul and another witness Sifatullah Khan was approaching the spot, when Zainullah, accompanied by three of his brothers and a servant came up. As they passed Ghulam Nabi, Zainullah remarked that it was now an easy thing to insult a man because you could make it up later at the cost of a mere lamb. This gave offence to Ghulam Nabi, who at once asked whether the remark was meant for him, and Zainullah said that it was, and proceeded to ask whether Ghulam Nabi bore enmity towards him and Ghulam Nabi replies that he would deal with him later on, whereupon Zainullah asked him to try his strength at once and the two men faced up to each other. The evidence as to whether they grappled with each other or merely engaged their hands is not entirely clear, but the witnesses are agreed that immediately after, Zainullah stepped back from Ghulam Nabi. At one stage or another, each of the eye‑witnesses said that Ghulam Nabi then jumped towards Zainullah. At this time, the distance between the two men is said to have been no more than a pace or two. Immediately, a shot ran out and the three witnesses saw a flash from the direction of Zainullah's hand and Ghulam Nabi was hit by the shot. Zainullah and the others immediately turned and ran from the spot, pursued by Ghulam Nabs. In the course of the pursuit two further shots were fired. The deceased, being eventually overcome by his injuries, fell down in the hujra of one Nasrullah Khan, who was present and was told at once by Ghulam Nabi that he had been shot by Zainullah. Ghulam Nabi was then taken to the Thana which is about 1 miles from the spot in a tonga and there he made a brief report men tioning the earlier incident, and describing the assault on himself in the following terms, viz. :‑ "When I reached near the school Zainullah shot at me with a pistol‑there was plenty of light from an electric bulb I was injured in the chest and I ran to Nasrullah Khan's hujra and raised outcries which brought many people to the spot‑Painda and Sifatullah Khan witnessed the incident." The report is very brief, and noticeably omits the name of the witness Nazar Muhammad. In its earlier parts; it conveys the impression that Ghulam Nabi was present when the compromise between the parties took place and the "lamb of peace" was eaten. Mr. Mahmud Ali for the respondent relying on the admis sion of witnesses such as Faqir Muhammad, Jafar Khan, the man at whose shop the compromise was concluded, and Kala Shah one of those who assisted in bringing about the compromise; contended that Ghulam Nabi was guilty of falsehood when he said that he himself was present at the compromise. The fact is that the compromise proceedings which concluded with the eating of the lamb were followed within three or four minutes by the shooting, as appears from the statement of Faqir Muhammad. Therefore even if Ghulam Nabi had not actually participated in the negotiations or in the meals: he could very well have been in the immediate vicinity, and thus have had direct knowledge of all what passed. The failure to mention the name of Nazar Muhammad is immaterial bearing in mind the con dition of Ghulam Nabi at the time. He had sustained a pistol shot in the left chest. The pellet which weighed 74 grains had traversed the chest cavity, and then injured the stomach and intestines. In consequence, Ghulam Nabi died at 1‑15 a.m. about three hours after making the report. Clearly, he was not then in such a frame of mind that significance should be attached to every omission from his statement. The plea taken by the accused Zainullah who was the only one of the party of five persons to be proceeded against was one of innocence and false implication. In cross‑examination only one of the witnesses, namely, Nazar Muhammad was asked whether Ghulam Nabi had a knife in his hand during his encounter with the accused, and he denied this. No such suggestion was made to the other two witnesses, and it seems clear enough that the allegation was an after‑thought. Mr. Mahmud Ali attempted to justify the conviction under section 304, P. P. C. by reference to the admissions of the eye‑witnesses that Ghulam Nabi leaped at Zainullah just before the latter fired. The argu ment gains some strength from the fact that the admission that Ghulam Nabi jumped towards Zainullah appeared in each case in the Police statement and was not repeated in the same form in the evidence by any of the witnesses. Mr. Mahmud Ali attempted to argue that Zainullah could reasonably have appre hended from seeing the movement towards himself of his oppo nent that he had some deadly weapon, and was about to injure him, perhaps fatally, and therefore must be held to have fired in self‑defence. There is absolutely no indication upon the record that Ghulam Nabi had any weapon at the time. If he had had a pistol, then seeing that the target was within the distance of a pace from him, there was no need for him to leap towards it at all. If on the other hand he had a knife, that knife should surely have been seen at least by Zainullah and his companions, and in that case the allegation would have been made much more confidently than it actually was. Therefore, on the facts as they appear from the evidence it is clear that while Ghulam Nabi had a desire to continue the fight with his bare hands, Zainullah on the other brought the matter to an end by a pistol shot fired point blank so as to be necessarily fatal. It remains to mention the conclusions reached on the point by the Courts below. The trial Judge considered the evidence and arguments regarding Ghulam Nabi's leap towards Zainullah and accepted the explanation that Ghulam Nabi may have seen Zainullah's hand going to his pocket to pull out his weapon, and he therefore moved quickly so as to forestall the assault. In excluding the plea of private defence; the trial Judge considered that there was no possibility that Ghulam Nabi was lying in wait to attack Zainullah. Agreeing that the affair was sudden, the trial Court found that Zainullah had provoked the deceased and then had gone on to challenge him to a trial of strength and had followed this by taking undue advantage of his adversary by shoot ing him. For these reasons, he imposed the sentence of death under section 302, P. P. C. In the High Court, the learned Judges appear to have taken the trial Court to task for failure "to consider whether Exception 4 to section 300, P. P. C. applies to the facts of the case". They referred to a recent decision given by the Lahore Bench of the West Pakistan High Court in the case of Muhammad Shafiq (P L D 1960 Lah. 339) where it was held that the expression "fight" used in Exception 4 includes grappling, and went on to say with reference to the case that the shooting was the outcome of a sudden quarrel, arid " the shot was fired in the heat of passion." They ended by saying :‑ "In the circumstances, we are also not inclined to hold that the appellant took undue advantage or acted in a cruel or unusual manner within the meaning of this Exception." To support this view, they referred to the fact that he had fired only one shot at the deceased. It is true that only one shot was fired at Ghulam Nabi, but it was fired straight into his chest, at a range of perhaps three or four feet, and therefore much cannot be made of the fact that Zainullah did not proceed to fill Ghulam Nabi's chest with lead. It must have been clear to him that the single shot which he bad fired was enough to finish Ghulam Nabi. That the quarrel was sudden admits of no doubt, but it is difficult on the facts to hold that the shot was fired in the "heat of passion", for the evidence is clear that Zainullah challenged Ghulam Nabi to a trial of strength which commenced with their bare hands, and while Ghulam Nabi was acting under the impression that the fight was to continue on that basis, Zainullah brought it to an end with a pistol‑shot. Something of calculation clearly appears in that act. To say that Zainullah did not take undue advantage seems to us to be in the circumstances almost impossible, and it is equally difficult to see how it is possible to say that when a person shoots into the chest of another who is coming at him with the intention of continuing a fight with bare hand to which he has been challenged, there is nothing unusual or cruel about his action. Therefore, we consider that in the present case the correct view of the incident was that which was taken by the trial Court, namely, that it was an act of calculated murder. On examining the precedent case which the learned Judges have purported to follow, we find that the facts there were totally different, viz., that a knife was brought into play by the party which was getting very much the worst of a fight with bare hands. Among the cases collected in that judgment, the only one which bears any ‑ resemblance to the facts here present is that of Karam Singh (1), where also a pistol was brought into play, but by the party which was getting the worst of an encounter with hand weapons. One of their members sustained no less than 14 blows with a lathi and one with a sharp weapon. In each of these cases, the fatal weapon was used to bring the party which was losing the contest on an equality with the other party. In the present case, Ghulam Nabi remained in the weaker position throughout. He was outnumbered, they being five to his one. He was bare‑handed when Zainullah deliberately shot, him, so as to kill him. The precedent case furnishes no basis upon which the present case could have been brought within Excep tion 4 to section 300, P. P. C. The act of Zainullah clearly falls to be punished under section 302, P. P. C. Mr. Mahmud Ali urged that the capital sentence should not be restored. In view of the length of time which has elapsed since the occurrence and the intervening incidents, in particular that as a result of the decision of the High Court, Zainullah was given a full expectation of life, we consider that the justice of the case will be sufficient met by the lesser sentence. We accordingly allow this appeal, and setting aside the con viction under section 304, P.P.C. We restore the conviction under section 302, P. P. C. awarded by the trial Court, and impose a sentence of transportation for life upon the respondent Zainullah. A. H. Order accordingly.