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(a) Penal Code (XLV of 1860)--

---Ss. 326, 300, Exception 4 & 302--Murder--Accused, on seeing deceased assault his mother, ran to help her, got involved in a fight with the deceased and during that scuffle he injured deceased--Accused had no motive or previous enmity against deceased and he moment of fury, only gave one knife injury to him which resulted in his death--Accused had n,) intention to kill deceased--Held, accused was only guilty of an offence under 5.326, P.P.C. aid entitled to benefit of 5.382-B, Cr.P.C. in circumstances.

Mansoor Beg's case 1971 S C M R 476 ref.

(b) Penal Code (XLV of 1860)--

---Ss. 304, Part I, 300, Exception 4 & 302--Murder--Accused inflicted injury on deceased without pre-meditation, in a sudden quarrel- Bruises or abrasions though not found on accused and deceased yet it could be inferred that both grappled with each other--Grappling being a fight within meaning of 5.300, Exception 4, P.P.C. accused, held, would be liable under S.304, Part-I, P.P.C.--Conviction and sentence of accused under S.302, P.P.C. was in any case, not made out in circumstances.

M.D. Tahir for Appellant.

Hafiz Ghulam Bari for Respondent.

Date of hearing: 20th September, 1987.

Muhammad Anwar and his two sons Mohammad Altaf and Muhammad Ilyas were tried by an Additional Sessions Judge of Gujrat under section 302/34, P.P.C. for the murder of Mohammad Azam, deceased. Whilst Mohammad Anwar and Mohammad Ilyas were acquitted, Mohammad Altaf, accused, was convicted under section 302, P.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.10,000 or in default thereof to undergo further rigorous imprisonment for two years. Out of the amount of fine, if realized, Rs.7,000 was ordered to be paid to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. was also granted to Mohammad Altaf. The appeal (Crl. A. No.160 of 1986) preferred by Mohammad Altaf, convict, against his conviction and sentence is now before me for disposal.

2. The prosecution case in brief is that Ghulam Rasool P.W.6 who was employed in the armed forces had come on two months' leave to his home on 3-8-1983. At about Chahwaila, after leaving his cattle in the grazing ground, he came towards the house of his deceased brother Mohammad Azam, when he saw his brother setting the borders (bunas) of his field right. When he went close to him, Mst. Nazran Bibi D.W.1, who had her house on the eastern side of the house of his brother, came to the spot with a basket full of dung from her own house and threw the dung etc. into the eastern side of the field of the deceased, which point was in front of the house of Muhammad Farman (given up P.W.). The deceased protested to her that despite previously asking her not to throw the dung there, she was not desisting from stacking dung etc. in his field and asked her not to do the same, on which Mst. Nazran Bibi D.W.1 started calling bad names to the deceased. The deceased also replied to her in the same coin. On hearing the alarm, all the three accused came running from their house. Mohammad Altaf, accused was holding a chhuri in his hand. Mohammad Anwar and Mohammad Ilyas, accused, immediately on reaching the spot started calling bad names to the deceased and caught hold of the deceased on the western side of the roori and after giving him fist blows, felled him down on the ground. In the meantime, Muhammad Altaf, accused, inflicted a chhuri blow on the left flank of the deceased, as a result of which the deceased writhed and died at the spot. Mst. Bashiran Bibi (not produced) and Mohammad Sadiq P.W..7 also reached the spot and saw the occurrence. The accused ran away towards their house.

3. At the trial, the prosecution produced Ghulam Rasool P.W.6 to prove the motive, the said witness arid Mohammad Sadiq P.W.7 in proof of the ocular account, Mohammad Siddique P.W.8, Hakim Ali P.W.9 and Yousaf Ali Khan ST P.W.12 in proof of the recoveries and Dr. Mohammad Safdar P.W.10 in corroboration of the medical testimony.

4. All the accused denied the accusations that were levelled against them. Mohammad Ilyas and Mohammad Anwar, accused, pleaded alibi. Mohammad Altaf admitted the occurrence, though in different circumstances. His version of the incident, as given by him in his statement under section 342, Cr.P.C., may be reproduced here with advantage:

"On the day of occurrence my brother's wife Mst. Nazran had gone out to make water in the field. While she was making water, the deceased gave her surprise from behind the reeds growing close to the place where Mst. Nazran Bibi was making water. With the evil intention he laid his hand upon her. Mst. Nazran hurling abuses on the deceased, raised alarm calling for help. I was in the house when I heard the alarm. Churri P3 was lying close to me. I picked the same up and rushed to the spot. In a fit of provocation, I gave one Churri blow to the deceased with a view to rescue my sister-in-law, which unfortunately proved to be fatal. My co-accused were not present at the time of occurrence in the village. They, in fact, had gone to condole the death of a relation in Narowal, from where they had returned after coming to know of the case and Mst. Nazran had stated true facts before the police, but the police, on the asking of the complainant, had foisted a false case on us."

5. The learned trial Judge found the prosecution story to be true and the defence version to be false and convicted Mohammad Altaf, accused, and acquitted Mohammad Ilyas and Mohammad Anwar, accused.

6. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record.

7. Learned counsel for the appellant only pleads that the appellant in the right of defence of the person of his mother and he I, therefore, be acquitted. In the alternative, it is pleaded that in case this Court were to come to the conclusion that he had exceeded that right, a short sentence should be awarded. In this connection, the supplementary statement of Yousaf Ali Khan P.W.12, recorded by this Court is pressed into service.

8. In view of the statement of the learned counsel for the appellant, I need not discuss the defence version of the appellant, as submitted by him in his statement under section 342, Cr.P.C. This now stands given up. Learned counsel for the appellant admits the case of the prosecution, but submits that the true facts are those as were given by the appellant in his statement to Yousaf Ali Khan S.I. P.W.12 on 6-8-1983, the date when he was arrested. According to the supplementary statement of Yousaf Ali Khan SI P.W.12, it appears that Mohammad Altaf, appellant was arrested on 6-8-1983 and when he inquired from him as to why he had committed the murder, the appellant had informed him that on the day of occurrence at about Chahwalla he and his brother Mohammad Ilyas were present in their house; that his sister-in-law Mst. Nazran went to throw a heap of cow-dung, that the deceased started abusing her, that on hearing the commotion his mother went to the place of occurrence, that Mohammad Azam, deceased, started abusing her and assaulted her with fist blows, that out of fury he and his brother Mohammad Ilyas went to the spot and got involved in a fight with the deceased and that he inflicted an injury to the deceased with the said knife, as a result of which he died at the spot. The 'story of Ghulam Rasool P.W.6 that Mohammad Altaf, appellant, and Mohammad Anwar and Mohammad Ilyas, acquitted accused, gave fist and kick blows to Mohammad Azam, deceased, and that the two acquitted accused over-powered the deceased and felled him to the ground is not correct because the post-mortem report does not show any abrasion or blunt weapon injury on the person of the deceased. The version of Mohammad Sadiq P.W.7 that the two acquitted accused held the deceased in their japha, whereupon Mohammad Altaf, appellant, inflicted the chhuri blow to him, is belied by Ghulam Rasool P.W.6, who does not refer to the japha at all. It appears that the story given by Mohammad Altaf, appellant, to Yousaf Ali Khan S.I. P.W.12 on 3-8-1983, which was recorded by him in his zimini, appears to be the correct version. It is admitted that Mohammad Altaf, appellant, had no enmity with Mohammad Azam, deceased, The incident arose over a dispute between Mst. Nazran and Mohammad Azam, deceased, about the throwing of the dung near the house of the latter, which was resented by him. The exchange of abusive language between the two, during which the appellant's mother intervened, whereupon the deceased abused and assaulted her with fist blows, provoked Mohammad Altaf, appellant, in defence of his mother, to run towards the deceased in a fit of rage and get involved with him in a fight, during which he inflicted a knife Injury to him. Since he inflicted only one injury, it cannot be said that the appellant intended the murder of the deceased.

Since the appellant used a knife, it can fairly be inferred that he intended to cause grievous injury, but since he had no intention of causing such bodily injury as he knew was likely to cause death, he cannot be' saddled with murder. Had the appellant wanted to kill the deceased, he would have inflicted a number of injuries. Taking all circumstances into consideration, I would hold that Mohammad Anwar, appellant, on seeing the deceased assault his mother, ran to her help, got involved in a fight with the deceased and during that scuffle he injured him. and since he had no previous enmity and he only gave one blow, his intention was not to murder him. I would, therefore, hold that he is only guilty of an offence under section 326, P.P.C. Assuming, for a matter of argument, that the case is one of 'murder, then Exception 4 to section 300 of the Pakistan Penal Code would apply to the case, as the appellant inflicted the injury without pre-meditation, in a sudden fight upon a sudden quarrel. Though there are no bruises or abrasions on the appellant and the deceased, one may be tempted to think that there was no fight, but the appellant did mention to the, investigating officer that he was involved in a fight with the appellant and I would, therefore, infer that they grappled with each other. This Court in a long series of decisions had held grappling to be a fight within the meaning of S Exception 4. Alternatively, the appellant would be liable under section 304-I, P.P.C. The conviction and sentence of the appellant under section 302, P.P.C., in any case, is not made out and is hereby set aside.

9. As regards the sentence, on behalf of the appellant it is pleaded that the complainant party a few days back murdered Mohammad Anwar, the appellant's father, and that since initially also the appellant had no motive to murder Mohammad Azam, deceased, but in a moment of fury caused one knife injury to him, which resulted in his death, a very short sentence should be awarded to him. I agree with the learned counsel for the appellant that the appellant, in a fit of rage, inflicted one knife injury to Mohammad Azam, deceased, on seeing him assault his mother with fist blows 'and that unfortunately the said solitary injury resulted in the death of the deceased. The appellant had no prior enmity or animosity with the deceased. The death appears to be the off-shoot of an ill-fated petty incident. Taking all' circumstances into consideration, and relying upon Mansoor Beg's case (1971 S C M R 476), I would sentence Mohammad Altaf, appellant, under section 326 P.P.C. to five years' rigorous imprisonment together with a fine of Rupees Seven Thousand (Ra.7,000) or in default thereof to suffer further rigorous imprisonment for two years. Fine, if recovered, shall be paid to the legal heirs of Mohammad Azam, deceased, as compensation. The benefit of section 382-B, Cr.P.C. shall be granted to the appellant.

10. For the foregoing reasons, this appeal is partly accepted in terms of alteration of conviction and reduction in the sentence, as stated above.

M.B.A. /M-410/L Appeal partly accepted

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