Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Appeal No. 403 of 1952, decided on 5th June 1953, from the order, of Fazal‑i‑Haq, Sessions Judge, Attock at Camp bellpur, dated the 10th March, 1952.
S. 300, Excep. 4‑Scope‑Fully explained.
According to Exception 4 to section 300, P. P. C., culpable homicide is not murder if it is committed (a) without premeditation, (b) in a sudden fight (c) in the heat of passion, (d) upon a sudden quarrel, and (e) without the offender having taken undue advantage or acted in a cruel or unusual manner. In this case it is proved that the appellant went to his house saying that he would soon come back to settle scores and returned with a spear with which he killed the deceased. This involves premeditation. There was undoubtedly a sudden quarrel between the appellant and the deceased and the crime may be said to have been com mitted in the heat of passion but there was no fight which is essential for bringing the case within Exception 4. A fight need not necessarily be with weapons but it must be a fight in the true sense of the word, i.e., a combat between two or more persons. A hand‑to‑hand combat in which blows are exchanged or grappling would constitute a fight, but not mere words of mouth which constitute the quarrel mentioned in the Exception but not the fight. If on a sudden quarrel blows are exchanged without any intention of killing but in the course of the fight and in the heat of passion one of the combatants kills the other his case would be covered by Exception 4 provided that he does not act in a cruel or unusual manner and does not take any undue advantage. In a fight between two men one of whom is unarmed and the other armed with a deadly weapon, if the latter uses the deadly weapon he takes undue advantage and is not entitled to the benefit of Exception 4. But if a fight starts on fair and equal terms and in the heat of passion one of the combatants causes a mortal injury to the other his case, in proper circumstances, may be covered by Exception 4.
In this case there was no proof whatsoever that the deceased was armed with a chhura when he was struck in the abdomen by the appellant with a spear. The blow was given with such a terrific force that the spear went right through the deceased's body. There was no evidence that the deceased gave any blow to or used any force against the appellant. The appellant was therefore guilty of a one‑sided attack on the deceased he acted in a cruel manner in striking the deceased with a spear in the abdomen, the force with which he struck clearly showed his intention to kill. For these reasons, he was held guilty of murder.
Abdul Haleem for Appellant.
S. A. Mahmood, Assistant Advocate‑General, for Respondent.
Muhammad Nawaz, aged about 19/20 years of village Saidan, Police Station Hazro. Tehsil and District Attock, was tried under section 302, P. P. C. on the charge that he on Ist November 1951 intentionally caused the death of Abdur Rahman, son of Muhammad Khan, aged about 40 years, in village Saidan. He was convicted under section 304 Part I, P. P. C. and sentenced to seven years' rigorous imprisonment on 10th March 1952. An appeal was filed on his behalf after the expiry of the period of limitation on 4th June 1952, but the delay was condoned by Rahman, J., by his order, dated 28th June 1952. On 2nd July 1952 an appeal filed by the Advocate‑General against the order of the appellant's acquittal on the charge of murder was admitted by Cornelius and Shabbir Ahmad, JJ. and ordered to be heard with the convict's appeal. Both the appeals above mentioned will be disposed of by this order.
The first information report relating to the occurrence was made by the deceased himself and is now evidence in this case under section 32, Evidence Act. It was recorded at 2 p. m. on the day of the occurrence which took place at about mid‑day. The distance from the scene of the crime to Police Station Hazro, where the report was recorded, is four miles. The report shows that five or six days before the occurrence Muhammad Nawaz appellant asked Ayub, a cousin of Abdur Rahman deceased, to help him in ploughing his land. Ayub said he was too busy to do so. On the day of the occurrence at about rotiwela, Ayub was going from his field to his house. He passed through the land of Abdur Rahman alias Mann, a cousin of Muhammad Nawaz appellant. Abdur Rahman told him that he had refused to help Muhammad Nawaz in ploughing his land and had no business to pass through that land. He also struck him with a chukka. Ayub went home and complained about it. Abdur Rahman de ceased was at his well called Malangewala. His wife Mst. Anwar Jan went there and told him that Abdur Rahman alias Mann had beaten Ayub and that he should not leave the well lest he should also be beaten. Abdur Rahman did not act on his wife's advice and left the well shortly after her. When she reached near the compound of their cattleshed Muhammad Nawaz abused her. The deceased told him not to do so. Muhammad Nawaz abused him and he returned the abuse. Muhammad Nawaz then went to his house nearby, saying that he would return shortly and settle the matter. He returned from his house with a spear and thrust it in the deceased's belly. Sarwar Khan, Muhammad Siddiq and Mst. Anwar Jan were stated in the report to have been present at the time of the occurrence and to have witnessed it. Other people were stated to have come; afterwards and to have seen the appellant going away with the spear. It was further stated in the report that, about a year before, Muhammad Nawaz appellant had contracted illicit intimacy with Mst. Qureshan, a niece of the deceased, and the latter had threatened to take revenge by forming a similar intimacy with the appellant's sister. The appellant had said that he would kill Abdur Rahman before he did that. This report or dying declaration (Exh. P. M) was recorded by Faiz Muhammad, S. H. O., Police Station Hazro, and was thumb marked by Abdur Rahman deceased. The Sub‑Inspector then prepared the injury statement of Abdur Rahman and after sending him to the hospital went to the scene of the crime. He collected same blood‑stained earth from the spot and questioned the appellant who produced the spear (Exh. P. 1), stained with blood. The blood on the earth and the spear was found, on chemical examination, to be of a human being. The S. H. O. received a ruqqa (Exh. P. N.) on the same day from Dr. U. H. Khan Malik informing him that the condition of Abdur Rahman was precarious. It was written at 3‑45 p. m. on 1st November 1951. The S. H. O. went to the hospital and, after satisfying himself from the doctor that Abdur Rahman was capable of making a statement, recorded another statement of his at 4‑15 p. m. This statement is marked Exh. P. C. and may be reproduced verbatim.
Charge‑Under section 302, P. P. C.
P. S. Hazro.
To
The Medical Officer, Civil Hospital Hazro.
Sir,
I have approached your honour in view of the representation made by Sh. Fazal Alam Khan, Sarbrah Lambardai of Sama and Taja, Bara and Sh. Muhammad Islam, son of Mian Ghulam Jilani who have accompanied me here. It is, therefore, requested that Abdur Rahman, son of Muhammad Khan, Awan, of Saidan, injured, may be examined and I be informed whether the injured is in his senses and fit to make a correct statement.
Faiz Muhammad,
1‑11‑1951. Sub-Inspector Hazro.
Exh. P. C. 1 /2.
He is conscious but weak. He could give his statement correctly.
1‑11‑1951 at 4‑15 a. m. Medical Officer.
Dying declaration of Abdur Rahman, son of Muhammad Khan, Awan, aged 40 years, on S. A.:‑-
About a year ago, Muhammad Nawaz alias Baja, son of Sardar Khan Awan, of Saidan, had contracted illicit intimacy with my niece Mst. Qureshan, daughter of Nadar Khan. About month ago, I told Muhammad Nawaz alias Baja (accused) that I take would revenge from him by having contracted illicit connections with his sister. Consequently he (Muhammad Nawaz) challenged me that he would put an end to my life before I could take revenge from him. About 4/6 days ago, Muhammad Nawaz asked my cousin Ayub, son of Hazir, Awan of the village to go with him (Muhammad Nawaz), as a hashri (helper for cutting the crop) but he (Ayub) refused to go with him. To‑day, at rotiwela, Ayub was going home after having ploughed his field. While returning home he (Ayub), happened to pass through the field of Abdur Rahman alias Mann, a cousin of Muhammad Nawaz. Abdur Rahman alias Mann shouted at and gave him (Ayub) a blow saying that he had the other day refused to go with Muhammad Nawaz as a hashri (helper) and that be was now passing through his field But Ayub went away to his house (without saying anything to him). Consequently Mst. Anwar Jan, my wife, having come to the well Chah Malangewala belonging to Babu Khuda Bakhsh, informed me that Abdur Rahman alias Mann had beaten Ayub, and that I should not come home lest (he) should also beat mt. As I bad not taken my meals, I, therefore, left for my home at dhale dopahr wela (about 2 p. m.). My wife had left for the home a short time before me, and I was going behind her at a short distance. My wife complained to Muhammad Nawaz (accused) that Abdur Rahman alias Mann had beaten Ayub for nothing. At this Muhammad Nawaz got angry with my wife and began to abuse her. In the meantime, I had too reached the court‑yard for the cattle. I with folded hands requested Muhammad Nawaz that I was a poor labourer and he should not abuse my wife. On hearing these words he again abused my wife, and in return I also abused him. After this Muhammad Nawaz left for his house saying that he would see me shortly. He then brought from his house a barchhi and gave a blow with it in my abdomen, as a result of which blood oozed out of it. The intestine also came out of my abdomen and I fell down on the ground. The occurrence was witnessed by Anwar Jan, my wife, Sarwar Khan, son of Muhabbat Khan Awan, and Muhammad Sadiq, son of Elahi Bakhsh residents of the village, and they separated me from the accused.
Thumb‑impression of
Abdur Rahman
Faiz Muhammad,
Sub‑Inspector,
P. S., Hazro, now at Civil Hospital, Hazro,
I certify that the above statement has been given by Abdur Rahman, son of Muhammad Khan, Awan of Saidan, injured, in his senses. It has been read over to him who having admitted its correctness, has impressed his left hand impression. The above statement has been given by the injured himself.
Muhammad Aslam Khan, son of Mian Ghulam Jilani.
Sheikh Siddiqi of Saman.
Sheikh Fazal Alam, son of Mian Sultan Mahmood.
Sheikh Saddiqi of Saman (Sarbrah Lambardar),
Faiz Muhammad,
1‑11-1951. S. I., Hazro.
Exh. P. C. 3.
Statement was recorded by S. H. O., in the presence of the above two Lambardars, One a Sufedposh, in the operation theatre while I was busy in attending the injured.
(Sd.) ........................
1‑11‑1951. M. O., Hazro."
Dr. Umar Hayat Khan Malik (P. W. 1) has deposed that the statement of the deceased was recorded by Faiz Muhammad, S. H. O., whilst the witness was attending to his injuries and that the injured man was in his senses and able to make a coherent statement. The doctor had examined Abdur Rehman at 3‑45 p. m. when he was brought to the hospital, and had found a stab wound 2" above the umbilicus out of which the omentum was protruding and another stab wound on the back near the first lambar vertebra. Both the wounds were deep to the abdominal cavity. Abdur Rahman died at 7‑30 p. m. and Dr. Malik performed the post‑mortem examination on the next day at 9 a. m. On dissection he found that the 12th right rib was cut and separated from its vertebral articulation. The abdominal wall, the peritoneal vessels at the root of the mesentery, the anterior surface of the stomach and the vessels of the right kidney were also cut. Death, in the opinion of the doctor, was the result of shock and haemorrhage. The injuries on the abdomen and the back were stated to have been caused by one blow from the front with a sharp‑edged long pointed weapon.
The doctor also examined Ayub, cousin of the deceased, and found a contusion on his right forearm, two contusions on his right buttock, and one on his left buttock.
The three eye‑witnesses named in the report, namely, Mst. Anwar Jan (P. W. 2), Muhammad Sadiq (P. W. 3), and Sarwar Khan (P. W. 4), have fully corroborated the dying declaration of Abdur Rahman deceased, They are related to the deceased; Mst. Anwar Jan is his wife. Muhammad Siddique is married to the sister of Mst. Anwar Jan and both he and Sarwar Khan P. W. are cousins of the deceased. That by itself is no reason for doubting their evidence. According to them, they were the only persons present at the time of the occurrence and no one else is said to have been present at that time by the appellant.
The appellant's statement in the Court of the committing Magistrate was that he had neither killed the deceased nor produced the spear. In the Court of Session he said that Mst. Anwar Jan remonstrated with him about the assault by his cousin Abdur Rahman on Ayub (P. W. 5), a cousin of the deceased, but that it was she who had abused him and not vice versa. He added that her husband Abdur Rahman arrived with a chhura and abused him for having had Ayub beaten. He returned the abuse whereupon Abdur Rahman attacked him with the chhura and he struck Abdur Rahman .with the spear (Exh. P. 1), which he usually carried, in the exercise of the right of private defence. He admitted producing the spear‑head which was found to be stained with human blood; and led no evidence in defence.
The version given by the appellant was put in cross‑exami nation to the prosecution witnesses who flatly denied it. There is nothing on the record to support this version. It was not even hinted at in the statement made by the appellant in the Court of the committing Magistrate, which was tendered in evidence, and was quite correctly rejected by the assessors and the Sessions Judge. The only question, therefore, is whether the crime com mitted by the appellant amounts to murder or is mere culpable homicide by virtue of Exception 4 to section 300, P.P.C. Accord ing to this Exception, culpable homicide is not murder if it is committed (a) without premeditation, (b) in a sudden fight, (c) in the beat of passion, (d) upon a sudden quarrel, and (e) without the offender having taken undue advantage or acted in a cruel or unusual manner. In this case it is proved that the appellant went to his house saying that he would soon come back to settle scores and returned with a spear with which he killed the deceased. This involves premeditation. There was undoubtedly a sudden quarrel between the appellant and the deceased and the crime may be said to have been committed in the heat of passion but there was no fight which is essential for bringing the case within Exception 4. A fight need not necessarily be with weapons but it must be a fight in the true sense of the word, i. e., a combat between two or more persons. A hand‑to‑hand combat in which blows are exchanged or grappling would constitute a fight, but not mere words of mouth which constitute the quarrel mentioned in the Exception but not the fight. if on a sudden quarrel blows are exchanged without any intention of killing but in the course of the fight and in the heat of passion one of the combatants kills the other his case would be covered by Exception 4 provided that he does not act in a cruel or unusual manner and does not take any undue advantage. In a fight between two men one of whom is unarmed and the other armed with a deadly weapon, if the latter uses the deadly weapon he takes undue advantage and is not entitled to the benefit of Exception 4. But if a fight starts on fair and equal terms and in the beat of passion one of the combatants causes a mortal injury to the other his case, in proper circumstances, may be covered by Exception 4.
In this case there is no proof whatsoever that the deceased was armed with a chhura when be was struck in the abdomen by the appellant with a spear. The blow was given with such a terrific force that the spear went right through the deceased's body. There is no evidence that the deceased gave any blow to or used any force against the appellant. We, there fore, hold that the appellant was guilty of a one‑sided attack on the deceased, that he acted in a cruel manner in striking the deceased with a spear in the abdomen, that the force with which he struck clearly showed his intention to kill and, for these reasons, he has been guilty of murder. The appeal flied by Muhammad Nawaz is dismissed and the appeal filed by the Crown is accepted. We alter the appellant's conviction from section 304 Part I to section 302. P. P. C. but, in view of his youth and the sudden quarrel which prompted the attack, we consider that the sentence of transportation for life will meet the ends of justice in this case. The sentence of seven years' rigorous imprisonment passed against the appellant under section 304 Part I is set as de and he is sentenced to transportation for life under section 302, P. P. C.
A. H. Conviction altered, sentence enhanced.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer