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Criminal Appeal No. 715 of 1979, decided on 18th April, 1981.

-- S. 300, Exception IV read with Ss. 302 & 304, Part I- Murder - Sudden fight - Conviction, alteration of-Incident a chance encounter and without any premeditation on part of accused-During altercation and grappling deceased first giving a fist low to accused and accused retaliating by giving a chhuri blow on back of deceased, proving fatal-Nothing to show that accused either taking undue advantage of situation or acted in a cruel manner--Case of accused, held, covered by Exception IV to S. 300, P. P. C.-Conviction under S. 302, P. P. C. altered to one under S. 304, Part I, P. P. C. in circumstances.

Muhammad Afzal Siddiqui for Appellant.

Syed Abbas Ali for the State.

Date of hearing 28th January, 1981.

Muhammad Jamil (25) son of Siraj Din, shopkeeper, resident of Chungi Amar Sadhu, Muhammadpura, Lahore, was tried by the learned Additional Sessions Judge, Lahore, for the murder of Rehmat Ali deceased. By his judgment dated 14th May. 1979 the learned Additional Sessions Judge convicted him under section 302, P. P. C. and sentenced him to imprisonment for life and a fine of Rs. 2,000 or in default in the payment thereof to undergo further R. I. for six months. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The convict has appealed.

2. According to the F. I. R., the case of the prosecution is that on 8th February, 1978 at 10 a. m. Rehmat Ali deceased and Muhammad Tufail complainant were present at the latter's shop situate in Main Bazar No. 2, Muhammadpura, Lahore, when Muhammad Jamil appellant happened to pass by that shop. Rehmat Ali demanded Rs. 100 from him which he had advanced him as a loan. Muhammad Jamil appellant tried to put him off and ultimately refused to make payment resulting in exchange of abuses and grappling between them. In the meantime, Ilam Din, Fateh Muhammad and Muhammad Siddiq got attracted on hearing the alarm and separated them. Muhammad Jamil threw a challenge that he would avenge the insult. At about 11.30 a. m. Rehmat Ali deceased went to the shop of Bashir Ahmad P. W. to make purchases. Muhammad Jamil appellant also reached there and grappled with him. Muhammad Tufail complainant who was present at his own shop, rushed towards the place of occurrence raising alarm attracting Fateh Muhammad, Muhammad Siddiq, Bashir Ahmad, Muhammad Sharif, Inayat Ali and Ilam Din to the spot, but Muhammad Jamil hurriedly took out a chhuri from the fold of his shalwar and gave a blow on the back of Rehmat Ali, as a result of which he fell to the ground. The appellant ran away towards Ferozepur Road brandishing the chhuri but he was apprehended by Muhammad Tufail complainant, Fateh Muhammad, Muhammad Siddiq and Muhammad Sharif alongwith the blood-stained chhuri. Ilam Din, Inayat Ali and Muhammad Sharif took Rehmat Ali injured to General Hospital, Lahore, while Muhammad Tufail complainant, Fateh Muhammad and Muhammad Siddiq started for the Police Station taking the appellant and the blood-stained chhuri with them. Ali Muhammad Sub-Inspector met them on the way and they produced the appellant before him alongwith the chhuri which they had earlier snatched from him. Muhammad Tufail reported the occurrence to him at 12.55 p.m. vide his statement Exh. P. F., on the basis of which formal F. I. R. Bxh. P. F./1 was recorded at the police station at 1.05 p.m.

3. Ali Muhammad Sub-Inspector arrested the appellant and made the blood-stained chhuri (Exh. P. 4) into a sealed parcel vide memo. Exh. P. H. He removed shirt (Exh. P. 5) and Shalwar (Exh. P. 6), both blood-stained, from the person of the appellant and made them into a sealed parcel vide memo. Exh. P. J. The appellant had injuries on his person. The Sub-Inspector got him medically examined. Rehmat Ali deceased expired in the hospital on the same day at 1.15 p.m. The Sub- Inspector reached General Hospital, Lahore, and after preparing the inquest report despatched the dead body to the mortuary for post-mortem examination. Then he reached the spot and secured some blood-stained earth which was made into a sealed parcel vide memo. Exh. P. K. After the investigation the appellant was challaned.

4. On 8th February 1978, Dr. Muhammad Akram C. M. O. General Hospital, Lahore, examined Rehmat Ali deceased, when alive, and found an incised wound 2 " x " x 2 " on the right lumbar region, 1 " to the right of vertebral column. The injury was kept under' observation.

On 9th February, 1978 Dr. Farid Bakhsh conducted the autopsy on the dead body of Rehmat Ali deceased and found the following injuries on it :-

(1) Stitched wound 3 " cm. long right lumbar region and right lower chest back.

(2) Incised wound 2 " x " c. m. skin deep midback right thigh.

(3) Wound of venesection outer side of both writs.

In the opinion of the doctor, death was due to shock and profused internal haemorrhage resulting from injury No. 1 which was sufficient to cause death in. the ordinary course of nature.

On 8th February, 1978 Dr. M. Riaz examined Muhammad Jamil appellant and found the following injuries on his person.

(1) Contusion 1" x " on the joint of right knee.

(2) Multiple small contusion on left knee joint.

(3) Contusion 1" x " c.m. back of left shoulder.

(4) Complained of pain on right shoulder.

5. In support of it case the prosecution examined three eye-witnesses namely Muhammad Tufail, Muhammad Bashir and Fateh Muhammad. It also relied on the motive and recovery of blood-stained churri from the appellant on his apprehension at a short distance from the place of occurrence.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case against him, he made the following statement.

I was a staunch worker of Quami Ittehad. Rehmat Ali deceased was that of People Party. He used to abuse the leaders of Qaumi Ittehad in my presence and within my hearing. On the day of occurrence, when I was going from near the place of occurrence, he on seeing me started abusing Qaumi Ittehad leaders. On my objection he abused the spiritualists. I also abused Zulfikar Ali Bhutto and other leaders of People's Party in retaliation. He exchanged hot words and indulged in grappling. The deceased Rahmat Ali picked up small wooden plank and started beating me, In the meanwhile the wooden plank broken and fell down. He was picking up the fallen piece of wooden plank for the 2rjd time to give me beating. I apprehended danger to my life. I picked up a churri from the shop of Bashir. I gave churri blow on the back of deceased when he was bending to pick up piece of wooden broken plank. Afterwards I myself went to police. This was the only occurrence and prior to that no incident took place between me and the deceased.

He examined Saiful Maluk in his defence who stated that he (appellant) was connected with Qaumi Ittehad Party.

7. The learned trial Judge rejected the defence version and relying on the prosecution evidence convicted and sentenced the appellant as mentioned above.

8. The learned counsel for the appellant did not press the defence version. He vehemently argued that there was no premeditation on the part of the appellant, the occurrence took place all of a sudden and the appellant did not take any undue advantage of the situation, therefore, Exception 4 to section 300, P. P. C. is attracted and at best the offence falls under section 304, Part 1, P. P. C.

The learned State counsel, on the other hand, submitted that it was a premeditated attack, therefore, the appellant was rightly convicted under section 302, P. P. C.

9. The case of the prosecution is that on the fateful day at 10 a.m. a quarrel took place between the appellant and the deceased when the latter demanded Rs. 100 from the former which he had advanced him as a loan. They were separated by Muhammad Tufail, Fateh Muhammad (P. Ws.) and others. The appellant threw a challenge on the deceased that he would avenge the insult and one and a half hours, later gave him a churri blow at the shop of Bashir which ultimately resulted in his death. To support the earlier incident the prosecution has examined Muhammad Tufail, and Fateh Muhammad P. Ws. Muhammad Tufail is the Hamzulaf of the brother of the deceased: In the F. I. R. he stated that Rehmat Ali deceased was sitting with him at his shop when the appellant passed by that way and an altercation took place between them when the deceased demanded the amount of Rs. 100 from the appellant. He also made a similar statement at the trial. According to the F. I. R., Fateh Muhammad alongwith others was attracted to the shop of the com plainant on hearing the alarm. Fateh Muhammad P. W., however, came up with the version that he wanted to have his photograph prepared for the identity card and so on the day of occurrence he called the deceased from his house at 9 a.m. and alongwith him sat at the shop of Muhammad Tufail P. W. when the first incident took place. Muhammad Tufail did not state that Fateh Muhammad was already sitting at his shop when the appellant came there and an altercation took place between him and the deceased. Muhammad Tufail P. W. further stated that after the first incident Rehmat Ali deceased sat at the shop of his brother Ilam Din for ninety minutes and then accompanied by Fateh Muhammad went "for his photographs towards Ferozepur Road". There is nothing on the record to show that the deceased was a photographer by profession or could render any help to Fateh Muhammad P. W. for having a photo graph prepared for him. Fateh Muhammad denied that the deceased was his friend but his statement read as a whole leaves the impression that he had friendly relations with the deceased. The story that he called the deceased from his house appears to have been introduced with a view to import him (Fateh Muhammad P. W.) as a witness not only of the first incident but also of the main occurrence. In the F. I. R. the complainant stated that one and a half hours after the first incident the deceased went to the shop of Muhammad Bashir for making purchases and the appellant also reached there and grappled with him he (complainant) rushed to the spot raising alarm upon which Fateh Muhammad P. W. and others also reached there, but at the trial he came up with the version that one and a half hours after the first incident "the deceased accompanied by Fateh Muhammad P. W. went for his photographs towards Ferozepur Road" There is nothing on the record to show that Fateh Muhammad P. W. had any shop or house near the place of occurrence. He is employed as a gardener in Lahore Municipal Corporation. His presence at the time of earlier incident as well as at the venue of the main occurrence appears to be doubtful. Muhammad Tufail P. W., as already mentioned above, is related to the deceased. The earlier incident allegedly took place in the main bazar but no unconnected person has been produced by the prosecution to support its version of that incident. Moreover, if any such incident had taken place and the appellant had proclaimed to take revenge he would have straightaway stabbed the deceased in the main occurrence, but that is not the case here. According to the eye-witnesses, there was grappling and exchange of abuses and fist blows between the deceased and the appellant before the latter gave a chhuri blow to the former. In the circumstances, it cannot be said with any degree of Judicial certainty that any such incident had taken place before the occurrence and the same might have been introduced to magnify the role of the appellant acid thus aggravate the offence.

10. There are two versions of the same occurrence, one narrated by the prosecution and the other by the defence. There is no dispute about the time and place of occurrence. Even the appellant admitted that it took place in front of the shop of Bashir P. W. He pleaded self-defence but his plea was not pressed even by his counsel obviously for the reason that there is nothing on the record to support it. Various suggestions in line with the plea raised by the appellant were put to Bashir Ahmad P. W. whose presence at the spot is not open to the slightest doubt but he denied them as incorrect. The defence version was, therefore, rightly rejected by the learned trial Judge.

11. The facts and circumstances of the case clearly indicate that a sudden quarrel between the appellant and the deceased culminated in this unfortunate occurrence. Bashir Ahmad who is the most natural witness of the occurrence, stated that Fateh Muhammad and Rehmat Ali deceased stopped at his shop for purchasing cigarettes. In the meantime, Muhammad Jamil appellant also came there and there was an altercation between him and the deceased in which they exchanged abuses but they were separated by the persons present there, Muhammad Tufail P. W. admitted that during the altercation the deceased first gave a fist blow to the appellant and the appellant then gave him a chhuri blow. After considering the entire evidence, I feel inclined to the view that prior to the main occurrence no incident of the type as alleged by the prosecution, took place and the entire occurrence took place in front of Bashir Ahmad P. W. It was a chance-encounter and there was no premeditation on the part of the appellant. During the altercation the deceased first gave a fist blow to the appellant who gave a chhuri blow on his back which unfor tunately proved fatal. The appellant cannot be said to have taken undue advantage of the situation or acted in a cruel and unusual manner. I am, therefore, of the view that Exception IV to section 300 of the Pakistan Penal Code is attracted to his case and the offence falls under section 304 (Part I) of the Pakistan Penal Code. I, therefore, alter his conviction from section 302, P. P. C. to section 304 (Part I), P. P. C. and reduce his sentence from imprisonment for life to R. I. for ten years and a fine of

Rs..10,000 or in default of the payment thereof to undergo further R. I. for three years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The appeal stands disposed of accordingly.

Order accordingly.

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