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Criminal Appeal No. 47 of 1967, decided on 23rd October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th January 1967, in Criminal Appeal No. 312 of 1966/Murder Reference No. 75 of 1966).

S. 302 read with S. 300, Exception 4‑Accused and deceased (students of Middle School) quarrelling and grappling over game but separated by outsider-- Accused, while leaving, threatening to take revenge and two hours later, finding deceased, attacking him with stick but on inter vention of deceased's brother finding himself no match, taking out knife, on spur of moment, giving one knife blow to deceased and running away‑Nature of provocation, held, in circumstance, not sufficient to convert offence to culpable homicide not amounting to murder‑Type of crime, however, held, not such as' to require extreme penalty of death‑Sentence altered to transportation for life.

Nazir Ahmad Khan, Senior Advocate Supreme Court instruc ted by Muhammad Nazar Khan, Senior Attorney for Appellant.

Muhammad Asghar Khawaja, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 23rd October 1967.

.‑This appeal by special leave is brought by one Muhammad Iqbal who stands convicted under section 302 of the Pakistan Penal Code and sentenced to death for the murder of Gul Jehan.

The prosecution case briefly was as follows. The accused Iqbal and the deceased Gul Jehan were students of the Middle School at village Hadali, Tehsil Khushab, District Sargodha. On 9th February 1965, at about 3 p.m. while playing a game of nuts after school hours they quarrelled and then started grappling with each other. Habibullah took the side of his brother Gul Jehan. One Muhammad Shafi (P. W. 10) intervened and separated them. Iqbal while leaving the place threatened to take revenge for the insult. On the same day, at about 4 p. m., Gul Jehan and his younger brother, Azizullah, went on their mare to bring fodder from their field which was at a distance of half a mile on the western side of the village. While returning from the field with the fodder Azizullah was riding is front of the mare and Gul Jehan was in the rear. Suddenly. Muhammad Iqbal emerged from a sugar‑cane field and started giving blows with a stick on Gul Jehan and as soon as he fell down from the mare he brought out a knife and stabbed him on the chest. Azizullah then got down from the mare and gave two or three stick blows to Iqbal and he ran away. Ahmad Khan and Allah Ditta who were at a distance of about 25 karams saw the occurrence. When they were removing Gul Jehan in an unconscious state to his house, he succumbed to his injuries on the way. Malik Ali Shah, uncle of the deceased, after learning of the incident from them, lodged the first information report at about 8 p. m. at Mitha Tiwana Police Station which was six miles from their village.

Muhammad Iqbal was arrested on the next day and at his instance the Police recovered a blood‑stained knife from an earthen pot in his house.

The doctor who held the post‑mortem examination found the following injuries on the deceased:‑

(1) A penetrating wound, " x " x cavity deep situated on the outer aspect of left side of the chest in the 4th intercostal space at level with left nipple and 2" away from it. The margins of the wound were gaping apart giving it a spindle shap ed appearance. On dissection, the left chest cavity was found full of blood. Upper zone of left lung showed a 1 " circular cavity which was directed upward and sedially passing through and through the width of left lung. The pericardial cavity was full of blood. Left side of heart showed a cavity " circular at the junction of parts with left ventrile. The heart anti upper part of left lung were collapsed. The shirt showed a cut corresponding to the injury.

(2) A contusion mark 3" x 2" on the outer aspect of middle of left thigh.

(3) Three contusion marks, each 4" x 1/2" and one inch apart parallel to each other situated in the middle of right side of chest.

(4) An abrasion 1/4" circular on the left elbow.

In the opinion of the doctor, death was due to shock and hemorrhage on account of the injuries caused to heart and lung: The accused after his arrest was examined by Dr. Inayat Ullan (P. W. 2) and he found the following injuries on his person:‑

(1) An abrasion, 1"x 1/16" on the top of head slightly towards the left 5 " above the root of left ear.

(2) A bruise, 1 x 1/3", on the right side of back of chest 4" below, the lower angle of right shoulder blade.

Both the injuries were simple in nature and caused with blunt weapon.

The defence of the accused may be stated in his own words:‑

"I and Gul Johan did have a game of nuts after school hours in the school. premises. It is, correct that we quarreled during the game. Gul Johan and his brother Habib Ullah over powered me and threw me on the ground and started beating me with their rulers. I had a pen knife with me with which 1 inflicted an injury to Gul Jehan in self‑defence. It is incorrect that Shafi P. W. disengaged us."

Direct evidence was furnished by three eye‑witnesses, namely, Azizullah, brother of the deceased, Ahmad Khan and Allah Ditta of village Bola, who saw the occurrence while passing by the road. The Sessions Judge relying on their evidence convicted the accused under section 302, P. P. C. and sentenced him to death. On appeal and reference, his conviction and sentence were con firmed by the High Court. The High Court, while rejecting the plea of self‑defence, observed:‑

"The location of blunt weapon injuries found on the person of the deceased completely fit in with the story that he was given stick blows while he was riding a mare behind Azizullah. The injuries on the person of the appellant were given by Azizullah after the deceased had 'been mortally wounded by the appellant. We are, therefore; clear that no right of private defence accrued to the appellant in the circumstances of the case."

The learned counsel for the appellant was candid enough to say that it would be difficult for him to rely on the plea of the appellant that the incident took place at the school and that during a quarrel over a game of nuts the appellant in exercise of right of self‑defence inflicted injuries on the deceased. He, how ever, contended that the prosecution story as to the manner in which the occurrence took place, was not true. From the fact that the deceased had three contusion marks, 4' x " and one inch apart parallel to each other situated in the middle of right side of the chest, he attempted to argue that these injuries could not have been caused while the deceased was riding on the mare just behind his brother. According to him, the deceased on seeing the appellant must have got down from the mare and while they were exchanging stick blows, the appellant in order to save himself used his knife.

We are unable to accept this contention. It appears from the evidence that the brothers had loaded the fodder on the mare in a manner so that half the fodder remained on one side and half on the other Azizullah rode in front of the fodder and the deceased was on the rear. Hence, it cannot be said that the chest of the deceased was so close to the body of his brother Azizullah that it was not possible for the appellant to give blows on his chest. We are, therefore. unable to accept the suggestion as to the manner in which the occurrence took place propounded by the learned counsel for the first time in this Court.

The incident took place in broad daylight. The learned Judges of the High Court have given cogent reason for accepting 'the evidence of the eye‑witnesses. Furthermore, the plea of right of self‑defence has been rightly rejected by them.

The learned counsel then contended that this case would fall within the Exception 4 of section 300, P. P. C. He has submitted that the accused was smarting under an insult offered to him about an hour or two before the incident and hence being in a highly aroused state reacted by a single act of violence. The High Court has rightly pointed out that the quarrel which took place about two hours before the occurrence could not be regarded as furnishing sufficient provocation for stabbing the deceased. We, therefore, agree with the learned Judges that the requirements of Exception 4 to section 300, P. P. C. have not been established. On the evidence we are satisfied that the appellant has been rightly convicted under section 302, P. P. C.

Lastly, it was contended that this was not a fit case for ex treme penalty. The learned counsel has submitted that the appellant who is a boy of 15 in a state of passion gave only one knife blow to the deceased which unfortunately proved fatal.

The Court while awarding sentence should consider whether having regard to the facts and circumstances of the case the crimi nality was of a kind which should be visited with extreme penalty. After school hours there was a quarrel between two students over a game of nuts. One of them was greatly incensed and was determined to teach the other boy a lesson. In that state of mind when he saw the other boy returning on a mare from his field he attacked him with a stick with a view to cause him physical injuries. As soon as the injured boy fell down from the mare his younger brother who was riding with him also got down and attacked the assailant. Realising that he would be no match for the two brothers he on the spur of the moment took out his knife and after giving one knife blow to the injured brother on his chest, ran away. It seems that he had not come with the set purpose of killing the deceased. In the excitement of the moment be used a knife that was with him. The learned Judges of the High Court have not considered this aspect of the case which was very relevant on the question of sentence. No doubt, Gul Jehan bad offered the appellant no provocation of a nature sufficient to convert the offence to culpable homicide not amount ing to murder. The fact, however, remains that the incident was between two young students and in the excitement of the moment one of them brought out a knife and stabbed the other. In these circumstances it would be difficult to say that this was the type of crime in which the extreme penalty should be imposed. If this aspect of the case was brought to the notice of the High Court, perhaps they might not have awarded the death sentence.

In the result, while affirming the conviction of the appellant under section 302, P. P. C., we alter his sentence from death to transportation for life. The appeal is allowed to the extent indicated above.

Conviction affirmed.

Sentence reduced.

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