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Criminal Appeal No. 46 of 1959, decided on 29th October 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 25th June 1959, in Criminal Appeal No. 152 of 1959).

Sudden fight‑Accused without taking undue advantage strik ing one blow at deceased with knife and then fleeing away‑Case falling under S. 300, Exception 4‑Section 304, Part I applicable --Blow struck at abdomen‑Calls for severe punishment‑Sentence of 2 years' R. 1, awarded by trial Court enhanced to 7 years' R. I.

Riasat Ali Khan, Advocate Supreme Court instructed by Maqbool Ahmad, Attorney for Appellant.

Jamil Hussain Rizvi, Advocate‑General West Pakistan Attaullah Sajjad, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 29th October 1959.

This is an appeal as of right brought by the appellant Muhammad Salim against his conviction by the High Court of West Pakistan under section 302, P. P. C. Muhammad Salim had been tried for the murder of his paternal uncle Ghulam Muhammad. The assessors, three in number had declared their opinion to be that Muhammad Salim had been attack ed with a hatchet by the deceased before he himself struck the latter with a knife, that Muhammad Salim's action was covered by the right of private defence, and by was therefore in nocent. The trial Court had found on the facts as follows :‑‑

"All these facts lead me to the conclusion that the prosecution is unnecessarily exaggerating the facts to the detriment of the accused. The motive alleged is not so serious as to raise a presumption that the accused would become prepared to take the life of his own undo. there is nothing on the record to show :hat his love for the maternal uncle was so great as to override this nearer relationship. It appears, therefore, that by some chance the accused and the deceased met each other at the spot and picked up an ordinary quarrel. One of them got enraged and in a fit of passion used the weapons, which they were carrying. There is nothing to show that any formidable attack was made on the accused by the deceased, and it has already been seen that the injuries on his person were found to be very slight. In any case as the quarrel suddenly arose without premeditation the question of self‑defence would not arise. In the suddenness of the quarrel the accused must have fished out a knife and stabbed his uncle for which he must have become sorry afterwards as he ran away without repeating the attack."

Accordingly, Muhammad Salim was acquitted of the charge under section 302, but was convicted under section 30;, Part 11, P. P. C. and awarded a sentence of 2 years rigorous imprisonment. Upon appeal by the State, a Division Bench of the High Court set aside the acquittal had convicted Muhammad Salim under section 302, P. P. C.

The case is very simple. Muhammad Salim's age appears from the judgment of the trial Court to be about 19 years. The deceased Ghulam Muhammad was aged 32 years. It seems that three or four days before the occurrence, which took place on the 29th October 1956, Ghulam Muhammad and one Feroze who is maternal uncle to Muhammad Salim had a violent quarrel in which Ghulam Muhammad beat Feroze. Muhammad Salim took Feroze's side with such vigour that he and the deceased had to be lacked inside their houses by their women‑folk, to prevent serious consequences. The High Court has believed that Muhammad Salim was moved by this incident to seek revenge for the beating given to Feroze. This conclusion appears from the following passage :‑

"This brings us to the determination of the question, as to what offence the respondent has committed. It is not disputed that the deceased had rough‑handled and insulted Feroze, the maternal uncle of the respondent, when Feroze prevented him from watering his bullocks in his pond. It is also not denied that Feroze, who has no son, immediately apprised his nephew Muhammad Salim respondent of the incident. The respondent admits that he remonstrated with the deceased in his house for having quarrelled with his uncle. It is further evident from his admission that when he met the deceased in field, he asked him again, as to why he had quarrelled with his uncle. All these facts considered together leave no room for controversy, that the respondent had taken to heart the insult offered to his uncle by the deceased and was harbouring grudge against him, and when he followed the deceased in wilderness about three miles away from his village with a knife and actually attacked him, he obviously wanted to take revenge."

In reaching this conclusion, the learned Judges have ignored the evidence given by the solitary eye‑witness Sultan Khan (P. W. 15) to the effect that about an hour before the alleged murder, both Ghulam Muhammad and Muhammad Salim had been ploughing their respective fields. 'The place was some three miles away from the village abadi. Therefore, the conclusion that Muhammad Salim, bearing the thought of revenge in his heart "followed the deceased in wilderness about three miles away from his village with a knife" in order to exact Revenge, would not appear to be tenable. The accused was at the place upon a lawful occasion of his own.

Support for the theory of revenge is found in the evidence of the aforesaid Sultan Khan and in a dying declaration of Ghulam Muhammad which is the first information report in the case. In the latter statement which was recorded at 5 p. m., some 6 hours after the occurrence Ghulam Muhammad said that he had beaten and disgraced Feroze that Feroze had told Muhammad Salim about this, and Muhammad Salim had "comforted Feroze that he would avenge him", and had also abused Ghulam Muhammad. He added that he was out in the jungle, in search of wild honey, when Muhammad Salim drew near him, and. shouting that he was coming to avenge his uncle Feroze, started throwing stones at him, one of which hit him on the left foot, and another on the back. The further stages of the incident are described in the following words :‑

"In the meantime Salim opened a knife and made ate attack upon me with the knife. I had a hatchet with me. I struck him the hatchet in self‑defence, which hit him obliquely on his left arm. Salim struck me knife, which hit me in the abdomen on the left side of the navel. I fell down. On falling down I got a scratch by a stone on the left side of the neck."

Ghulam Muhammad's statement was again recorded at 9 a. m. on the 30th October 1956 by a Magistrate about 7 hours before his death. It consists of a few lines in which he said that he was out searching for honey in the fields when Salim Khan injured him with stones and a knife. The incident with Feroze was mentioned and that Sultan Khan had seen the occurrence. It was specially mentioned that a stone had hit Ghulam Muhammad on the left leg. There is no mention in this statement of Salim Khan's declaration that he was coming to avenge his uncle Feroze.

Sultan Khan (P. W. 15) was grazing his cattle 22 furlongs away from the spot (i. e. 550 yards) when he says, he saw Salim coming up to Ghulam Muhammad declaring that he would take revenge for the beating of Feroze, and Ghulam Muhammad could save his life if he could, after which Salim stated to throw stones at Ghulam Muhammad and then ran at him with an open knife. Then "the deceased injured the a:cused with his hatchet and then the accused stabbed him with his knife". It was added that the accused had received the hatchet blow on his left hand and with the right hand stabbed Ghulam Muhammad in the stomach. It has been urged before us, and the argument is one that cannot be ignored, that from a distance of 550 yards, it was probably not possible for Sultan Khan to hear what was said by either Muhammad Salim or Ghulam Muhammad. The very detailed evidence given by Sultan Khan does not in our opinion carry the degree of conviction allowed to it in the judgment of the High Court. It is probable that being in the vicinity, in charge of cattle, he became aware of the incident through hearing the cries of the deceased or otherwise, and that he was the first to arrive, and to hear from Ghulam Muhammad what had happened. That may well account for the degree of correspondence between his evidence and the version given in the first information report. It is true that there are injuries on Ghulam Muhammad's left foot and his back, which might have been caused with stones, but the stones would have to be fairly large since one of these injuries, a lacerated wound on the left foot, measures 11" in length, and the other, a contusion on the back, is an inch in length. It was pointed out in the course of argument that it is very doubtful whether stones of the requisite size were available at the spot. Nazer Khan lambardar (P. W. 12) and the investigating officer A. S. I. Nusratullah (P. W. 17), were cross‑examined on the point and both of them said that the place was sandy with pebbles of the nature of kankar strewn around, but no big stones.

The statements of Muhammad Salim in reply to the case were very simple and certainly appear more natural than the prosecution version. In the committing Court he made the following statement :‑

"Q.‑Did you have a quarrel on account of your uncle Feroze with Ghulam Muhammad deceased in your house, a day or two before the day of present occurrence

A.‑No, I had no quarrel with Ghulam Muhammad, but I remonstrated with him for having quarrelled with my maternal uncle Feroze, and it annoyed him.

Q.‑How do you explain injuries on your person

A.‑It was the deceased who attacked me being armed with a hatchet and I acted in self‑defence."

This statement was supplemented by the statement at the trial as will appear from the following extract :‑

"Q.‑Did you pick up a quarrel with the deceased 3/4 days before the occurrence in your joint courtyard and were you each shut up as alleged by Mst. Bhag Bhari

A.‑No such thing happened. It was outside in the fields that I had asked the deceased why he had quarrelled with Feroze.

Q.‑Did you throw any stone at the deceased before he attacked you with the hatchet

A.‑No he began the attack with the hatchet and I hit him with knife in self‑defence.

Q.‑Have you anything else to say

A.‑I injured the deceased in self‑defence and have nothing to add."

We consider that in the light of the recent trouble with Feroze, it was natural that when Muhammad Salim and Ghulam Muhammad met in the open at a place close to their respective fields, the matter should come up again. If it be correct that Muhammad Salim raised the matter by asking why Ghulam Muhammad had quarrelled with Feroze, it was quite natural that Ghulam Muhammad who was many years older than Muhammad Salim and was his paternal uncle, should resent the nephew's question. Therefore, the statement .of Muhammad Salim that Ghulam Muhammad became annoyed at his remonstrance (or question, as it should properly be described) appears to be natural, and certainly more natural than that Muhammad Salim should go out with a knife a distance of three miles for revenge, as was suggested by the prosecution and believed by the learned Judges in the High Court. The admissions of the deceased and evidence of Sultan Khan go to show that when the antagonists came within reach of each other, the first blow with a weapon, namely, a hatchet, was struck by Ghulam Muhammad at the accused and that it struck him on the left arm. Corresponding injuries, albeit slight, were found by the doctor. As regards the story of stone throwing, in view of the evidence that there were no stones of the requisite size obtainable in the locality, we consider that it would be safer to exclude this part of the case from consideration. In any case, it would not be natural for a man who went out with a knife to take revenge, to start with throwing stones, particularly when no stones which could effectively be used for causing hurt were available at the site. When, therefore, the version of Muhammad Salim is regarded .as a whole, it has the appearance of being reasonable, and is also consistent with the physical facts other than the injuries said to have been caused to Ghulam Muhammad with stones, and these injuries are of doubtful origin. At the same time, it seems tai us that Muhammad Salim, in facing up to his uncle and attacking him with a knife when he himself was attacker, with a hatchet, did not behave in the manner of a very junior nephew upon whom the wrath of his uncle had fallen, so that he found himself in an open place being attacked by the latter with a hatchet. If Muhammad Salim had been himself unprepared to meet force with force, then the probability would be that after he was suddenly attacked by his uncle with a hatchet, it would have taken evasive action and perhaps run away front the spot. Therefore, we consider that the view of the learned trial Judge that there was a fight between the two men is correct. and taking into account all the circumstances, we agree with him also that this fight took place suddenly and was not pre‑planned by the accused. In that fight, the accused did not take undue advantage for he struck only one blow, with his knife and then fled from the spot.

Accordingly, upon careful consideration of all the facts and circumstances, we find ourselves unable, with respect, to accept the view of the facts which forms the basis of the decision by the High Court. We consider on the other hand' that the case clearly falls, as found by the learned Sessions Judge, under Exception 4 to section 300, Pakistan Penal Code and consequently the offence falls to be punished under section 304, P. P. C. of which we consider that Part I and not , Part II is correctly applicable. The sentence awarded by the trial Court is evidently disproportionately light. A knife blow in the stomach is generally fatal, and known to be so. Such a blow struck at a senior relative, even in the course of a sudden fight, which results in the death of the victim, requires to be punished with a substantial sentence of imprisonment.

For these reasons, we allow this appeal, and setting aside the conviction by the High Court, we replace it with the conviction under section 304 (t), P. P. C. and impose a sentence of seven years' rigorous imprisonment.

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