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Criminal Petition for Leave to Appeal No. 13/R of 1984, decided on 25th January, 1986.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench, dated 26th February, 1984 in Criminal Appeal No. 878 of 1979).

---Art. 185(3)--Penal Code (XLV of 1860), S.304, Part I--Appeal against reduction in sentence--Plea that defence version having been disbelieved, there was no justification for High Court to treat case as one of culpable homicide and reduce sentence, repelled--A greater latitude of discretion is given to judge in apportioning punishment of culpable homicide when it does not amount to murder for he is empowered to pass any sentence ranging from life imprisonment to a short term or even fine alone--There appearing to have been a scuffle in which parents of accused/ respondent were beaten and he also joined affray giving a single dagger blow to deceased, Supreme Court found no reason to interfere with discretion exercised by High Court--Leave to appeal refused.

1981 S C M It 329 distinguished.

Khalid Iqbal Qazi, Advocate Supreme Court and Imtiaz M. Khan, Advocate-on-Record for Petitioner.

Ch. Muhammad Aslam Chatha, Advocate-on-Record for Respondent No.1.

Ghulam Ahmad, Advocate Supreme Court for the State.

Date of hearing: 25th January, 1986.

-Zahoor Ahmed, alongwith Muhammad Sadiq and Mst. Khurshid Begum was tried by the learned Additional Sessions Judge, Jhelum under section 302/34, P.P.C. Zahoor Ahmed accused was convicted under section 304, Part I, P.P.C. and was sentenced to life imprisonment and fine of Rs.10,000, in default, to suffer further R.I. for three years. Half of the amount of fine if recovered, was ordered to be paid to the heirs of Allah Ditta deceased as compensation under sections 544-A and 545-B. Muhammad Sadiq and Mst. Khurshid Begum were acquitted. Convict Zahoor Ahmed filed an appeal in the Lahore High Court which was heard by a learned Single Judge who, vide the impugned judgment, maintained the conviction under section 304(1) but reduced the sentence to five years' R.I. with a fine of Rs.5,000, in default, to suffer further R.I. for one year.

2. According to the prosecution story Muhammad Nazir P.W. is the son-in-law of Allah Ditta deceased. He and the accused-respondent lived in close vicinity in village Sulemanabad, District Chakwal. On 16-3-1977 Allah Ditta deceased and Muhammad Nazir were present in the house when at about 7-15 p.m. Zahoor Ahmed accused passed in front of the door of the house of Muhammad Nazir playing his radio on high volume. Allah Ditta deceased came out to remonstrate with him on such conduct while passing in front of his house where ladies were also living. It is alleged that Zahoor Ahmed, who was armed with a dagger; Muhammad Sadiq armed with a hockey and Mst. Khurshid Begum armed with a Danda came together; the later two caught hold of the deceased while Zahoor Ahmed gave dagger blow to the deceased in his abdomen. Muhammad Nazir tried to intervene but it is stated that Muhammad Sadiq and Mst. Khurshid Begum the acquitted/accused gave hockey and Danda blows to him, respectively. In defence, Muhammad Nazir threw brickbats at the accused/ respondents. On the uproar of the parties Muhammad Iqbal, Muhammad Siddiq and Karam Elahi reached the spot and rescued the complainant party Allah Ditta deceased was removed to the hospital where he succumbed to his injuries later on.

3. It is stated that 4/5 days before the occurrence Mst. Nusrat Nisar daughter of Muhammad Nazir P.W. had gone out at mid-night for answering the call of nature. She returned weeping and told her father Muhammad Nazir that when she was answering the call of the nature Zahoor accused/ respondent came and molested her. The following morning Muhammad Nazir made a complaint to Muammad Sadiq accused /respondent father of Zahoor Ahmed accused; who picked up a quarrel with him and both came to grips and exchanged blows.

4. Learned counsel vehemently argued that the defence story in which the occurrence had been admitted and having been considered doubtful and thereby disbelieved, there was no justification to treat this case as one of culpable homicide covered by the 4th Exception of section 300, P.P.C. that even if the offence falls within the mischief of section 304, Part I, P.P.C. the sentence awarded by the learned trial Court should have been maintained and there was no legal or factual ground to reduce the same to 5 years and fine from Rs.10,000 to Rs.5,000 by the learned High Court Judge. Against Muhammad Sadiq and Mst. Khurshid Begum it was urged that both of them were liable for the murder of Allah Ditta and for causing injuries to Muhammad Nazir P.W. Learned counsel relied on 1981 S C M R 329, which, on facts, is distinguishable.

5. Examining the contentions raised by the learned counsel we agree that the case of the accused respondent is not covered by Exception 4 of section 300, P.P.C. as it has got limits viz. that the act of culpable homicide is without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner, which is not the case here. The deceased was neither armed; nor the use of dagger at vital part of his body without any reason would not bring the case under the purview of the 4th Exception.

The case in hand may be nearer to Exception 2 which made the offender entitled to lesser punishment in the exercise of the right of private defence of person or property, if he exceeds the right given to him by law, and causes the death of the person against whom he is exercising such right of defence. A greater latitude of discretion is given to the Judge in apportioning the punishment of culpable homicide when it does not amount to murder for he is empowered to pass any sentence ranging from life imprisonment to a short term or even fine alone. We will also make mention of the fact that the accused/ respondent Zahoor Ahmad alone is responsible for dealing dagger blow to the deceased while the acquitted accused have been charged for holding the deceased which fact has been disbelieved by both the Courts below. Zahoor Ahmad, in his statement, recorded under section 342, Cr.P.C. before the learned Additional Sessions Judge, stated in reply to a question:

"I received these injuries when I was assaulted by Muhammad Nazir P.W. and Allah Ditta deceased. The I.O. got me medically examined"

and in reply to another question, he stated that:

"On the date of occurrence, Tariq Mahmud son of Muhammad Sadiq, P.W. had offered to sell a radio to us. I started playing this radio in the evening and since it was running on electricity, the pitch of the radio was very high. Muhammad Nazir P.W. and Allah Ditta deceased came out in the street in front. of our house and started hurling abuses. They were armed with pieces of wood in the shape of sticks. My father and mother went out to remonstrate, but they were assaulted by Muhammad Nazir P.W. and the deceased. I picked up a household knife in the shape of Chhuri and asked Muhammad Nazir and the deceased to desist and also flourished a Chhuri blow to frighten them away. Instead, Muhammad Nazir P.W. started giving me blows and Allah Ditta overpowered me. Feeling that I may lose my life at their hands, or receive grievous hurts, I gave one blow with the Churri to Allah Ditta deceased to save myself.:."

The medical evidence shows that Muhammad Sadiq had five injuries, in the nature of abrasions, on his person which were caused with blunt weapon; Zahoor Ahmad had abrasion and swelling while Mst. Khurshid Begum was also found to have sustained injuries caused with blunt weapons. Thus, it appears that there was scuffle in which parents of Zahoor Ahmad accused/ respondent were beaten and he also joined the affray giving a single dagger blow to the deceased. We find no reason to interfere with the discretion exercised by the learned High Court Judge. Consequently, this petition is dismissed.

M . I . Petition dismissed.

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