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Criminal Appeal Np.85 of 1980, heard on 21st July, 1987.

---S.304, Part II--Sudden fight--No premeditation to commit crime- Occurrence taking place in the field of accused on the protest of deceased and hurling of abuses--Accused acting in heat of moment to retaliate in a sudden quarrel and giving a single Lathi blow to deceased which proved fatal--Conviction under S.304, Part II, P.P.C. and sentence of 5' years' R.I. maintained, in circumstances.

Nemo for Appellant.

Tauqeerullah Khan for the State.

Date of hearing: 21st July, 1987.

Circumstances, in which this criminal appeal comes up before this Court briefly are:-

Muhammad Rafique appellant and Muhammad Asghar, his son, were tried under Section 302/34 PPC for committing murder of one Muhammad Shafi deceased. Muhammad Asghar was exonerated of the charge, whereas, appellant was held guilty under Section 304 Part II PPC and sentenced to five years' R.I. and a fine of Rs.2,000 or in default to further undergo one year R.I. by learned Additional Sessions Judge, Sargodha, on 20-11-1979. Facts of the case as unfolded in the F.I.R. and in the prosecution evidence adduced at trial are given in sufficient details in the judgment of the Court below and it is not necessary to repeat them at full length. However, broad outlines of the case may suffice. On 27-9-1977 at 2 a.m. cattle of one Ahmad Hassan, a relation of Muhammad Shafi deceased, trespassed into the fields of Muhammad Rafique appellant, who drove them away to the house of Muhammad Shaft and scolded the womenfolk of the house for not keeping control over their cattle. Learnt of the abuses given by appellant, Muhammad Shafi went to the Dera of the appellant to lodge a protest. On the Dera, appellant and his acquitted son were present and they were shown to be armed with dangs. Protest of Muhammad Shaft deceased provoked appellant and his son, who gave dang blows to Muhammad Shafi deceased, which subsequently culminated in his death. After investigation, appellant and his son were sent up to face trial under Sections 302/34 PPC.

At the trial, accused were charged for causing death of Muhammad Shafi in furtherance of their common intention. Charge was readover to them. They denied it, claimed trial and desired to produce evidence in defence. Ocular evidence of the occurrence was provided by Muhammad Anwar (P.W.6) and Nazir Ahmad (P.W.8). Rest of the evidence relates to recovery of the crime weapon, examination of the dead body, preparation of the site-plan and various other steps taken in the investigation. Appellant admitted the occurrence but claimed right of self-defence of person. It was stated by him that deceased armed with Lathi gripped him near his Dera, was extremely aggressive, hurled abuses and gave him Lathi blows on the back and other parts of the body. In order to save himself from the grave risk to his life, he gave one danda blow to Muhammad Shafi deceased. Though this statement was mere under Section 342 Cr.P.C. yet no evidence was led in defence to support the above defence plea. From the examination of the records, it appears that there was no premeditation to commit crime, that occurrence took place in the field of appellant, that on the protest of deceased and hurling of abuses, appellant acted in heat of the moment to retaliate in a sudden quarrel and gave a Lathi blow, which proved fatal to the life of the deceased. On these, either proved or admitted facts, Court found appellant guilty under Section 304 Part II PPC and sentenced him to the aforesaid term of imprisonment. View of the facts and the evidence taken by the learned Judge below appears to be correct. It may be noticed that execution of sentence awarded to the appellant was not suspended by the High Court. From this fact, it can easily be inferred that the sentence awarded may have been already suffered by the appellant and it is for this reason that despite the intimation neither the counsel nor appellant himself has appeared before the Court. Examination of the evidence led by the prosecution in juxtaposition with the statement of the appellant recorded under Section 342 Cr.P.C. reveals that the responsibility has properly been fixed and the sentence awarded is also proportionate to the offence committed. For the reasons given above, no interference is made. Appeal is found to be without merits. It fails and is dismissed.

S.G.D./M-324/L

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