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--Ss. 302, 300, Exception IV & 304, Part I-Wife on being ill-treated and slapped by her husband leaving abode and going to residence of her uncle-Husband and accused (his brother) following her to residence of her uncle and insisting on her being taken away forcibly -Matter taking serious turn and on uncle arming himself with a dang accused picking up a hatchet from spot and giving fatal blows to him-Case, held, one of unpremeditated sudden fight covered by Exception IV to S. 300-Conviction of accused under S. 302 altered to one under S. 304, Part 1.

Nura v. The State P L D 1960 Lah. 53 noticed.

M. S. Chaghtat for Appellant.

S. M. Mahmood Shah Mushaddi for A: CI. for the State.

Dates of hearing: 21st and 22nd May 1974.

Ramzan (25) and his brother Imam, Muslim, Shaikhs, residents of village Basirpur, District Sahiwal, were tried under section 302 read with section 34 of the Pakistan Penal Code, for the murder of Nawab. Ramzan was sentenced to imprisonment for life and to a fine of Rs. 500, in default of payment of fine to undergo one year's rigorous imprisonment further. Fine, if realized, shall be paid as compensation to the heirs of Nawab deceased. Imam was acquitted. The convict has appealed.

2. Ramzan and his brother Imam (acquitted accused) lived together in a but (Jhuggi) in village Basirpur. Imam used to ill-treat his wife Mst. Sakina (P. W. 10). Three or four days before the occurrence, he beat her up. Mst. Sakina left her house and came to her uncle Nawab (deceased), who lived in a nearby jhuggi in the same Ehata. On 7th June, 1970, at about 1-GO a.m., Ramzan appellant and Imam came to the house of Nawab and asked him to send Mst. Sakina with them. Nawab told them that she would return to them in the morning. The accused insisted that they would straightaway like to take her with them, and abused him. Nawab abused them back and maintained that he would not send Mst. Sakina at that hour of the night. Upon this the appellant and his brother grappled with Nawab. Imam caught hold of him. Ramzan, who was armed with a hatchet, injured him with it on the head. Nawab fell down. The alarm raised by Mst. Sakina attracted Bagga (P. W. 9), Khushi Muhammad, Jehangir and Siraj. The appellant and his brother went away raising lalkaras.

3. Bagga P. W., brother of Nawab, took him to hospital where he was examined by Doctor Muhammad Afzal Shaikh, Medical Officer, Basirpur (P. W. 2), at 3-30 a.m. on 7th June, 1970. The doctor found an incised wound 6" x x 3/4" on the middle of forehead, 2" above the root of the nose and extending towards the posterior of the skull on left half of the skull bone. Skull bone was also fractured. He was unconscious and was bleeding through the nose.

4. Bagga P. W. took the medical certificate and proceeded towards Police Post Basirpur. He met Muhammad Ashraf, A. S. I. (P. W. 13) at 5-30 a.m. at the bus-stand of Basirpur and made the report Exh. P. A. to him. The A. S. 1. went to the spot, collected blood-stained earth from there. He received intimation about the death of Nawab from the doctor. He then went to the hospital and prepared the necessary. documents and sent the dead body for post-mortem examination.

5. Doctor Muhammad Afzal Hashmi, Medical Officer, Depalpur (P. W. 1) held the autopsy on the dead body of Nawab and found an incised wound 5" in length stitched on the top of the head. Underlying bone of the skull was fractured in the region of left frontal and parietal region. The bone was sharply cut in 5" x 1/5" area and the front end of this cut was continuous for 2" in the zig zag manner on the forehead. Death was due to injury to the brain.

6. On 9th June, 1970, the A. S. 1. arrested both the accused from the old bus-stand of Basirpur. The appellant upon interrogation led to the recovery of his blood-stained hatchet (P. 4) from the stock of chaff near his kotha which was made into a sealed parcel and memo. Exh. P. D. was prepared. The recovery was witnessed by Abdur Rehman (P. W. 7) and Muhammad Ramzan (P. W. 8).

7. The appellant denied guilt and stated that on the night of the occurrence, he was sleeping in the common courtyard of the Ehata, where Mst. Sakina also slept. She picked up a quarrel with him, upon which he slapped her. Her alarm attracted Nawab deceased, who came there with a dang and inflicted a blow, which he warded off. Thereafter, he picked up a hatchet from there and in self-defence injured him with it.

Imam accused pleaded alibi and stated that 5/6 days before the occurrence, he bad left the village for manual labour. He denied his presence at the spot and stated that h: had been involved due to enmity with Bagga P. W., who used to ask him to divorce Mst. Sakina. No accused produced defence.

8. The prosecution produced only two eye-witnesses of the occurrence, namely, Bagga, the brother of the deceased, and Mst. Sakina, his neice. As there were nineteen other jhuggis in the bhata and the occurrence took place at night, when every one would be there, it was likely to have been seen by other persons also. Khushi Muhammad, Jehangir and Siraj were named as eye-witnesses by Bagga in his statement to the police. Siraj is the father of Mst. Sakina, who had come to Basirpur to see his brothers. All of them were cited as witnesses, but were given up at the trial on the ground that they had been won over by the accused. It follows that even Siraj a brother of the deceased, was not prepared to support the prosecu tion. The interested evidence of Bagga and Mst. Sakina P. Ws. cannot, therefore, be trusted.

9. It is common ground that the trouble arose over Mst. Sakina. The story of the appellant that she was slapped by him for picking up a quarrel with him and that the deceased came to their jhuggi on her alarm is incorrect, because the blood-stained earth was found in front of the jhuggi of the deceased, where he was attacked. It is not alleged that he was removed from the jhuggi of the appellant by some one after the occurrence. There is no reason to doubt that Mst. Sakina was slapped by her husband and as she went to the jhuggi of the deceased, she was followed there. An attempt was made to show that the appellant and his brother went there two or three days after her leaving her husband's house, but this was probably an improvement to make out a serious case against the accused. Bagga P. W. himself admitted in cross-examination that both the incidents had taken place on the same night. The visit of the accused to the jhuggi of the deceased after mid-night is also an improvement to enhance their guilt. The probability is that they followed Mst. Sakina soon after she went to her uncles. It was admitted by Bagga as well as Mst. Sakina that when the accused tried to take away the latter by force, Nawab brought a dang and tried to strike it on the head of the appellant. Mst. Sakina admitted further that the appellant gave a hatchet blow to the deceased after the latter had attacked him and that the hatchet was picked up from the spot.

10. Learned counsel contended on the authority Nura v. The State P L D 1960 Lah. 53 that where the intention of an accused was forcibly to take a woman to the house of her husband and to compel her to live there against her will, their conduct was not covered by section 366 of the Pakistan Penal Code. Nawab deceased therefore, was not entitled to bring a dang and try to strike the appellant with it. The appellant was, therefore, justified in giving him a blow in self-defence. But the matter does not end there. Even a husband has no right to take away his wife by force, what to say of his brother. As the appellant persisted in dragging Mst. Sakina to take her away by force, he was liable for the offence of wrongful restraint. Nawab was, therefore, justified in bringing a dang to prevent him from doing so.

11. Let us now determine the offence of the appellant. He and his brother followed Mst. Sakina to the jhuggi of the deceased to bring her back home. The matter took a serious turn because she refused to go with them and the deceased supported her. He brought a dang to stop them from taking her away by force. The appellant picked up a hatchet from the spot and gave him a single blow with it. Thus it is a case of a sudden and unpremeditated fight which would be covered by Exception IV to section 300 of the Pakistan Penal Code. I, therefore, alter the conviction of the appellant to section 304, Part I of the Pakistan Penal Code and sentence him to five years' rigorous imprisonment. The sentence of fine and the order of compensation are maintained, but they will be deemed to have been passed under section 304, Part I of the Pakistan Penal Code.

K. B. A. Appeal partly accepted.

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