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Criminal Appeal No. 237 of 1977, decided on 3rd March, 1986.

(On appeal from the judgment of the Lahore High Court, dated 17‑2‑1977 in Criminal Appeal No. 809 of 1976 and Murder Reference No. 93 of 1976).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302/34, 304, Part I & 300, Exceptions I & IV‑‑Leave to appeal granted to examine whether offence committed by accused was not under section 304, Part I, Penal Code, on account of application of Exception I or I V to S.300, Penal Code.

‑‑Ss. 302/34, 304, Part I & 300, Exception IV‑‑High Court carefully examining defence plea that accused had acted in exercise of right of private defence but fell into error in failure to examine further question whether in case defence had failed to establish plea of self‑defence their findings of fact would not be covered by Exception IV to 5.300, Penal Code‑‑Altercation and scuffle occurred at spot due to immediate cause of affray, i.e. dispute over children and there was no premeditation and prosecution was unable to establish a case of pre‑planned murder‑ Accused not acting in a cruel or unusual manner and not taking undue advantage‑‑Neither party pleading that it was victim of aggression by other as both were engaged in a sudden fight which was covered by Exception IV to S.300, Penal Code‑‑Conviction of accused under 5.302, Penal Code set aside and instead accused convicted, by application of Exception IV to 5.300, under S.304, Part I, Penal Code, and sentence of death altered to ten years, rigorous imprisonment.

Tariq Azam Ch. for Appellant.

M. Bilal, Advocate Supreme Court for the Advocate‑General, Punjab instructed by Rao M. Yousaf, Advocate‑on‑Record for the State.

Date of hearing: 3rd March, 1986.

‑This appeal through leave of the Court is directed against judgment, dated 17th February, 1977, of the Lahore High Court; whereby in a case of murder the appeal of Muhammad Shafiq appellant herein, was dismiss d, and the sentence of death as also other sentences for offences under sections 326 and 324, P.P.C., were maintained.

The appellant, Sher Muhammad, Munawar and Ghulam Nabi, the other three accused in the case are related inter se, they and the deceased Muhammad Shafi resided in the same Mohallah at some distance from the house of Ghulam Nabi which is near the village mosque. It is the prosecution case that Muhammad Shafi deceased had protested to Ghulam Nabi over the visit to his house of persons of dubious character which led to a quarrel in which they exchanged abuses, It is stated that to avenge the insult Ghulam Nabi and others including Muhammad Shafiq appellant having variously armed themselves with blunt and sharp‑edged weapons lodged an attack on Muhammad Shafi and killed him.

At about 9 a.m. on 5‑3‑1972 the deceased went to take bath in the mosque. When he was still in an open space in the front of the house of Ghulam Nabi he appellant and the other accused attacked him. On alarms raised by the victim his father Allah Bakhsh, his wife Mst. Shameem, Jan Muhammad his brother and Muhammad Sabir a relative went to rescue him. They saw the deceased warding off the knife blows being caused by Munawar and Sher Muhammad accused with his hands and the appellant inflicting a knife blow on his chest which caused his instantaneous death. The intervention of Mst. Shameem and others led to some injuries sustained by these P.Ws. The spot from where the blood was recovered is, as stated already, an open place which is both in front of the mosque and also in front of the house of Ghulam Nabi. In addition to the deceased and the P.Ws. the accused persons also suffered injuries with sharp and blunt weapon. While the total, number of injuries on the accused side is 15, almost equal number of injuries were suffered by the complainant side. While in custody the appellant led to recovery of the Churi which was found to have beer stained with human blood. The accused party denied the prosecution version in toto and presented a parallel defence version contained in the statement made by Ghulam Nabi under section 342, Cr. P.C. It read as follows:

"A day before the occurrence Iqbal, a young boy, and a son of the deceased was beaten by my children while the cooked rice was being distributed by Haroon‑ur‑Rashid Butt as he had given the Niaz. His mother Mst. Shamim P.W. came alongwith her boy to my house, in order to make a complaint. She started abusing my children, to which my wife also retorted. I too joined her. She went back and complained to her husband Muhammad Shafi who planned to take revenge and for that purpose he called Sabir, Mehraj Din to make a concerted attack on us, at the time of occurrence, Muhammad Shafi, deceased, Sabir and Jan Muhammad and 3/4 others whom I do not know, came armed there carrying Churris and Danda. They attacked on us and we apprehending death or grievous hurt acted in the right of self -defence. There was lot of grappling and the injuries to the P.Ws. were sustained as a result thereof. Sabir, P.W. gave Churri blow to me but Shafi happened to come in front of me and the Churri blow fell on the left side of his chest. Myself, Munawar and Shafiq were seriously injured by the complainant party. I appeared before 'the A.S.I. myself on the day of occurrence and made my statement before him but he did not pay any heed to the version which I offered to him. Shera accused was not present there (the prosecution witnesses) are closely related to each other and Sabir was a pupil of the deceased. Numerous persons from the locality were present at the spot but as they were not supporting the case of the prosecution narrated in the F.I.R. therefore, their statements were not recorded by the police although the Investigating Officer interrogated them in this connection.

At the trial the State examined Allah Bakhsh, Ian Muhammad, Muhammad Sabir, Mst. Shameem the close relations of the deceased and Mehraj Din as the prosecution witnesses. Mehraj Din did not support the prosecution while the other four fully supported the case set up in the F.I.R. which has already been narrated in the beginning. Two independent witnesses namely, Khawaja Nazir and Chanan Din who were mentioned as eye‑witnesses in the F.I.R. were, however, given up and not examined. The evidence with regard to recoveries was also led. The learned trial Judge did not rely on the testimony of Mehraj Din and accepting the prosecution version given in the ocular testimony of other injured eye‑witnesses found Muhammad Shafiq, Munawar and her Muhammad guilty‑‑Ghulam Nabi was adjudged innocent and was acquitted Muhammad Shafiq was awarded sentences of death and fine of Rs.2.000 under section 302, P.P.C., and sentence of two years' R.I. and a fine of Rs.5,000 under section 326, P.P.C. and under section 324, he was sentenced till the rising of the Court. Munawar and Sher Muhammad accused were convicted under section 324, P.P.C. only and were awarded a sentence till rising of the Court. Munawar and Sher Muhammad did not file an appeal.

Muhammad Shafiq appellant challenged his conviction and sentences in the High Court through an appeal and the same having been dismissed, leave to appeal was granted to him to examine whether the offence committed by him was not under section 304, Part I on account of application of Exception I or IV to section 300, P.P. C.

We have gone through the evidence and also heard the learned counsel for the appellant. His contention is that the motive and the origin of the attack as alleged by the prosecution having been disbelieved at the lower Court stage, the defence version containing the statement of Ghulam Nabi renders the case as one of sudden fight covered by Exception IV to section 300, P. P. C.

After going through the evidence, the judgment of the High Court and hearing the learned counsel for both the sides we feel that there is considerable force in the argument.

The learned Judges of the High Court while dealing with the motive and origin of the fight which admittedly took place between the parties (though the prosecution side tried to suppress the injuries suffered by the accused side) observed as follows:

"We may point out at this stage that the trial Court has disbelieved the motive as set up by the prosecution for reasons stated in paras. 16 to 22 and 29 of the judgment. The reasoning of the learned trial Court is that the cited witnesses for motive had not been produced and, therefore, the motive, as set up by the prosecution, was not proved. We are inclined to agree with the learned trial Judge that the occurrence took place because a day before son of deceased had been beaten by the children of Ghulam Nabi, acquitted co‑accused. It is further probable that Mst. Shameem P.W.12 wife of the deceased had gone to lodge a protest on this account and abuses were exchanged between her and the wife of Ghulam Nabi, acquitted co‑accused, as well as Ghulam Nabi, acquitted co‑accused, himself. Thereafter, on the day of the occurrence it appears that the deceased alongwith five members of his family went to lodge protest to Ghulam Nabi, acquitted co‑accused, and this resulted in the occurrence."

After noticing the prosecution and defence versions, the learned Judges in the High Court carefully examined the defence plea that they had acted in exercise of right of private defence and rejected the same with the following finding:‑

"It is correct that the injuries on the persons of the members of the accused‑party including the appellant do not find any mention in the F.I.R. But it may be noted that the injuries sustained by the accused‑party were caused by blunt weapon and were simple in nature. It is, therefore, reasonably probable that the members of the complainant‑party including the appellant might have gone to lodge a protest because of the beating of the child of the deceased. It is further reasonably probable that this led to an altercation between the parties and a scuffle took place."

The learned Judges, it appears, fell into error in their failure to examine the further question whether in case the defence had failed to establish the plea of self‑defence their findings of fact would not be covered by Exception IV to section 300, P.P.C. It reads as Follows:‑

"Culpable homicide is not murder if it is committed 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.

‑It is immaterial in such cases which party offers the provocation or commits the first assault."

After rejecting the defence version of exercise of self‑defence and rightly so in the circumstances of this case it is reasonable to assume that the "altercation" and the "scuffle" rightly found to have occurred at the spot was due to the immediate cause of the affray namely, the dispute over the children. Thus, there was no premeditation. Otherwise too it is nobody's case that the prosecution was able to establish it as a case of pre‑planned murder.

The next condition for bringing the case under Exception IV is that there should be a sudden fight in the heat of the passion upon a sudden quarrel. The finding of quarrel and scuffle given by the High Court are fully justified. The injuries, their location and nature found on both the parties fully support this assumption. The fight which ensued upon the sudden quarrel between the parties led to injuries on both the sides which are comparable in nature and severity except that one person namely, Muhammad Shafi, got killed on the accused side. Although he suffered 7 incised injuries, 6 of them are superficial and insignificant as if having been sustained in a scuffle‑‑only one injury which proved to be fatal could be considered to be a serious one. This leads us to the examination of the next question whether the offender had taken undue advantage or acted in a cruel or unusual manner. In this case both the parties were armed with deadly weapons, therefore, if the accused side caused one serious injury to a victim on the complainant side it cannot be held to be either an act of cruel or one of unusual nature nor the accused‑party can be held to have taken any undue advantage. And the last question as to whether the fact that one person got killed on the complainant side can be considered as enough for coming to the conclusion that the accused party were responsible for the occurrence. Even if it were so the explanation to Exception IV would resolve this controversy. It is stipulated therein that it is immaterial in cases like the present one as to which party offers provocation or commits the first assault. Neither party, therefore, in this case could rightly plead that it was the victim of aggression by the other as both were engaged in a sudden fight which is covered by Exception IV.

In the light of the above discussion we set aside the conviction of the appellant under section 302, P.P.C. The sentence of death is set aside, instead he is convicted by application of Exception IV to section 300, under section 304, Part‑I, P.P.C. and is awarded a sentence to 10 years', R.1. The convictions under sections 326 and 324 are also set aside. In the circumstances of this case, the appellant could be convicted under sections 334 and 335, and sentences awarded already are adequate and are maintained. The substantive sentences shall run concurrently. The sentences of fine awarded by the trial Court are also maintained. And it is further directed that the same shall be paid as compensation to the heirs of the deceased. The appellant shall be given the benefit of section 382‑B, Cr.P.C.

M. Y. H. Appeal partly accepted.

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