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Criminal Appeal No. 173 of 1963, decided on 17th December 1965.

Ss. 300, Exception 4, & 304 Sudden fight‑Mutual combat and blows on each side in heat of passion resulting in one death‑Cause, origin and manner of such fight‑Held, not material for establishing guilt.

Hashmat and another v. Emperor A I R 1933 Oudh 566 distinguished.

Akhtar Hussain v. State P L D 1958 S C (Pak.) 251 fol.

Zafar Mahmud for Appellants.

S. M. Zubair for A: G. for the State.

Date of hearing: 6th December 1965.

The appellants Sultan, aged 34 years, and Nadir, 36 years, along with Khan and Jahandar, residents of Mohra Faqiran, Tehsil and District Rawalpindi, were tried under sections 302/323/34, P. P. C. for the murder of Mohammad Iqbal, aged 60 years, of the same village and for having caused simple injuries to Amir Ahmad. The appellants were convicted under section 304, Part I, P. P. C. and were acquitted of the charge under section 323, P. P. C. Their co‑accused, Khan and Jahandar, were acquitted of both the charges. The appellants were sentenced to five years' rigorous imprisonment each by the order of Mr. Abdullah Jan Mirza, Additional Sessions Judge, Rawalpindi, recorded on the 1st of February 1963. They have come in appeal against their conviction and sentence.

2. The case against the appellants and their co‑accused was that on the 29th of June 1962, in furtherance of their common intention they committed the murder of Muhammad Iqbal, deceased, and also caused injuries to Amir Ahmad P. W. nephew of the deceased. In this Case the deceased remained unconscious till the 1st of July 1962, and on that day he expired in the District Headquarters Hospital, Rawalpindi. The time of occurrence is deegarwela and the report was lodged on the same day, that is, the 29th of June 1962, by Sultan (P. W. 18) at police station Sadar at 8‑30 p. m. The place of occurrence is about three miles from the police station.

3. The prosecution story is that sometime prior to the present occurrence, the Forest Department had challaned the two appellants and their acquitted co‑accused for being in possession of forest wood and they were tried by a Magistrate at Rawalpindi and were convicted but on appeal to the Court of the learned Additional Sessions Judge they were acquitted, and it was also directed that the entire forest wood consisting of about 80 pieces might be returned to the accused. Pre vious to that the forest wood was lying with the deceased as sapurdar of that property. On the day of occurrence in pursuance of the orders of the Court, the Forestor, Ch. Muhammad Rafiq (P. W. 13) had gone to the place of occurrence so that the forest wood may be taken from the sapurdar, Muhammad Iqbal, and made over to the two appellants and their co‑accused. This was done in the presence of Ch. Muhammad Rafiq, Forestor, and after he had left the spot, it is alleged, that the two appellants and their co‑accused attacked Muhammad Iqbal and his nephew, Amir Ahmad (P. W. 15) with sticks and injured them. The allegation is that Muhammad Iqbal was given one stick blow each by the two appellants while Amir Ahmad P. W. was hit in the same manner by the two acquitted co‑accused. It is alleged that Sultan (P. W. 18) who lodged the report just arrived when the appellants and their co‑accused were running away from the spot through a street and he saw them running. It is further alleged by the prosecution that Sultan Khan reached the spot followed by Amir Ahmad (P. W. 15) and two more eye‑witnesses of this case, Akbar Khan (P. W. 16) and Muhammad Sabir (P. W. 17) as well as Kale Khan who was not examined at the Sessions trial, informed Sultan Khan about what they had seen. Sultan P. W. accordingly went to the police station and lodged the report Exh. P. L.

Besides what happened at the spot at the time of occurrence, it is also alleged by the prosecution that there was some litiga tion between the appellants and their co‑accused on one side and Muhammad Iqbal, deceased, and his brothers, on the other, over a path and over the restoration of a house. It is also alleged that these appellants and their co‑accused were occupancy tenants of Muhammad Iqbal, deceased, and his brothers and that in accord ance with the new law the land which was in possession of the appellants and their co‑accused matured into full‑fledged owner ship in their favour. The landlords, including Muhammad Iqbal, deceased, had brought four suits against the appellants and their co‑accused alleging that the appellants and their co‑accused were not in possession of the occupancy tenancy and, therefore, they were not entitled to become owners of these fields. All the four suits were decreed but on appeal one decree was set aside. As regards Sultan, appellant, it is alleged that he had made a report to the police that the deceased, Muhammad Iqbal, had forcibly taken possession of iris house and on his application the police restored that house from Iqbal, deceased, to Sultan, appellant. As regards the dispute about the path the prosecution case is that it was compromised.

4. The deceased remained in a state of unconsciousness till his death. The following injuries were found on his person by the doctor:‑

(1) A lacerated wound 3 " x 1 " x bone deep on the right side of the head, 4 inches from the right ear.

(2) A lacerated wound 1 " x " x bone deep on the top of head more on right side.

On the 2nd of July 1962, at 8‑20 a.m. the same doctor performed the post‑mortem examination on the dead body of the deceased and found that the scalp was injured vide injuries Nos. 1 and 2. On examination of the skull multiple fractured pieces of bone of parietal and frontal on the right side of skull corresponding to injury No. 1, the fracture was extending to the right temporal bone up to the right ear level and extending on the left side passing corresponding to injury No. 2, reaching up to the left temporal bone. On opening the skull fractures were extending to anterior bone of the skull fracturing sphenoid bone both sides. Membrances were ruptured in the middle and there was a clot of blood inside the durameter more in the base. Brain was healthy and spinal card was not opened. Both the injuries were grievous and ante‑mortem and were sufficient to cause death in the ordinary course of nature.

On the 1st of July 1962, at 10‑15 a.m. the doctor examined Khan, co‑accused of the appellant, and found simple injury on his left scapula with no external sign.

On the same day Nadir, appellant, was examined and the following injuries were found on his body:

(1) An abrasion " x 1" x 6" on the right shoulder.

(2) A contused wound " x 1/10" skin deep on the left occipite parietal region.

(3) A swelling 3" x 3" on the dorson of the left hand caused with blunt means. The injuries were simple in nature, of one to three days duration.

5. At the trial, Nadir, appellant, pleaded the right of private defence and the other accused denied their presence at the time of occurrence.

6. Amir Ahmad (P. W. 15) gave the ocular testimony of the occurrence in the following terms; on the 29th of June 1962, at digarwela under the direction of the official of the forest department, the wood in the sapurdari of the deceased was returned to the appellants and their co‑accused. After taking away the wood the four accused‑persons came to the house of the deceased and abused him. The deceased returned the abuse of Sultan accused. The deceased was given one blow each by Sultan and Nadir on his head and fell down. The witness was caused simple injuries by Khan and Jahandar on his head. According to him, the occurrence was witnessed by Sabir, Akbar and Kala. He narrated the occurrence to Sultan P. W. who lodged the report.

Akbar (P. W. 16) stated to have reached the spot after the deceased was already injured. He is a relative of the deceased. Sabir (P. W. 17) was disbelieved by the trial Court for the same reason. Kala was abandoned by the prosecution.

Khadim Husain A. S. I. (P. W. 19) arrested Nadir, appellant, and Khan accused on the 30th of June 1962, they both were medically examined. It was not suggested to him that Fatima, wife of Nadir, was also injured in the fight. No question was put to him if the injuries of the wife of Nadir, appellant, were brought to his notice at the time of the arrest of the appellant.

7. The learned trial Court disbelieved the presence of Akbar, Sabir etc. P. Ws. About Amir Ahmad it was observed that his statement was exaggerated and did not give the true version as to how the fight originated. The plea of Nadir was also rejected and held that the occurrence flared up all of a sudden bringing the case within Exception 4 to section 300, P. P. C. for which the appellants were found guilty.

8. It is contended that the plea of the accused has not been thoroughly examined and that the learned trial Court was not justified in reconstructing its own theory of the occurrence. It was vehemently argued before me that the injuries of Ghulam Fatima, wife of Nadir, were not taken into consideration. Mst. Fatima, wife of Nadir, appellant, was examined for her injuries on the 30th of June 1962, at 6 p.m. She had one contusion 3" x 1" on the back of right shoulder. In support of his conten tion, the learned counsel for the appellants relied on Hashmat and another v. Emperor (A I R 1933 Oudh 566) wherein it was held:

"It is altogether beyond the scope and power of a Sessions Judge, when holding a criminal trial, while rejecting the story as told by the witnesses for the prosecution, or, in other words, while disbelieving their evidence in its main details, to build up a theory of his own as to what the transaction really was and upon an assumption of what their testimony ought to have been, to come to a conclusion adverse to an accused person . . ."

In the case cited above, there were two sets of prosecution witnesses who gave two contradictory stories in respect of the vital portion of the occurrence. The facts of the cited case are not on all fours with the instant case. In the case of Akhtar Hussain v. State (P L D 1958 S C (Pak.) 251) it was laid down:

"That in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advan tage or acted in a cruel or unusual manner, the question of self defence becomes merely academic, and in view of Explanation to Exception 4 to section 300, P. P. C. it was immaterial which party offers the provocation."

The provision of law under which the appellants were found guilty is meant to apply to the cases in which notwithstanding that a blow may have been or some provocation given in the origin of the dispute, or in whatever way the quarrel may have been originated, yet the subsequent conduct of both the parties puts them, in respect of guilt, upon an equal footing. For, there is a mutual combat and blows on each side, and however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood already heated warms at every subsequent stroke, and the voice of reason is heard on neither, side in the heat of passion. Under such circumstances, there cannot be much room for discriminating between the respective degrees of blame with reference to the state of things at the commencement of the quarrel. It matters not what cause of quarrel is, or who strikes first, or who gave the provocation and it is under such circumstances that subsequent to such fight death caused is not murder but culpable homicide.

8. While respectfully following the rule laid down in the Supreme Court authority, I endorse the finding of the trial Court. The appeal on these grounds fails and is, accordingly, dismissed.

S. Q.

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