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Criminal, Appeal No.690 and Murder Reference No.207 of 1984, heard on 19th May, 1987.

---Ss.302, 300, Exceptions 4 & 304, Part I--Offence, alteration of- Occurrence starting with deceased's spitting on the face of accused--Offence committed without premeditation in a sudden fight and under heat of passions--Accused not taking any undue advantage of situation nor acting in a cruel or unusual manner and giving only one injury ultimately proving fatal--Conviction under S.302, P.P.C. altered to that under 5.304, Part I, P.P.C., in circumstances.

Dr. Khalid Ranjha for Appellant.

Muhammad Rafiq Butt for the State.

Date of hearing: 19th May, 1987.

--The appellant, Muhammad Aslam alias Achhu aged 21/22 years, armed with Chhuri P.4 was convicted and sentenced to death under section 302, P.P.C. for the murder of Nasir Ali aged 20 years by the Additional Sessions Judge, Sargodha on 19-11-1984. The appellant has come up before the High Court against his conviction and sentence. A reference has also been made under section 374, Cr.P.C. by the learned trial Court for the confirmation of the death sentence so awarded. We propose to dispose of the criminal appeal (Cr.A. No.690 of 1984) and the reference (M.R. No.207 of 1984) together by our consolidated judgment.

2. Briefly mentioned the prosecution case is that on 14-6-1984, the complainant Muhammad Tariq PW.7 submitted in his First Information Report Ex.PG that at about 9-00 p.m. he, alongwith Nasir Ali s/o Akhtar Ali, his cousin brother was present in a hotel near the Oil Mills known as Lakhi Oil Mills, Rehmanpbra, Sargodha City, wherein aforesaid Nasir was cleaning his teeth with a miswak. He spat on the ground whereupon the appellant, Muhammad Aslam alias Achhu hurled an abuse upon him as to why he had spat there. Nasir, aforesaid, replied by giving an abuse whereupon the appellant Muhammad Aslam alias Achhu took out a dagger .and caused an injury on the left flank of Nasir. On the receipt of the injury, Nasir fell down and the accused ran away. The occurrence in the hotel was witnessed by Fazal Elahi PW.8 and Arshad Masood (given up PW). The complainant further stated that he took the injured Nasir to Civil Hospital, Sargodha, wherein he was admitted for treatment. Later on, on the production of Medical Certificate of Nasir, injured, initially a case under section 307, P.P.C. was registered with Police Station City Sargodha on 15-6-1984 at 1-55 p.m. vide the FIR Ex.PG, which offence later on, on the death of Nasir Ali, was converted into an offence of murder under section 302, P.P. C.

4. On 14-6-1984 Dr. Abid Farooq, Medical Officer, District Headquarters Hospital, Sargodha PW.1 medically examined Nasir Ali, injured, aged 20 years and found the following solitary injury on his person:-

"A stab wound 3 cm x cm deep seems to be cavity deep. The wound was bleeding profusely. It was situated on the back of upper abdominal region (Lumber region) at about the kidney angle 5 cm left to the middle line about 11 cm from the illiac crest of left side."

The said Doctor stated that the injury was caused by sharp-edged weapon. Probable duration of the injury was within one hour.

4. On 15-6-1984, Altaf Hussain SI PW.13 investigated the case and visited the spot on the same day. He collected the blood-stained earth from the spot and kept the same into a sealed parcel vide memo Ex.PH. He also recorded the statements of eye-witnesses and the witnesses of recovery of blood-stained earth. On the same day Muhammad Tariq complainant PW.7 produced before him the last worn clothes of Nasir Ali, deceased, who was at that time alive lying in an injured condition. The clothes were shirt P.1, vest P.2 which bore corresponding cuts marks and Shalwar P.3 which was also blood-stained and the same were taken into possession vide memo. Ex.PF. He prepared the site plan of the spot which is Ex.PC. On 16-6-1984 the witness went to the spot in search of the accused. He reached there at about 1-00 p. m. The accused himself appeared before him in the company of certain other persons. He further stated that Chhuri P.4, the weapon of offence, was wrapped in a paper, however the paper was not blood-stained. He arrested the accused and the Chhuri P.4 was taken into possession vide memo. Ex.PJ and the same was placed in a sealed parcel.

5. Iqbal Hussain SI PW.11 stated that on 20-6-1984 he submitted an application Ex.PD to the Duty Magistrate for recording the dying declaration of Nasir Ali, deceased. The Magistrate got a fitness certificate from the Doctor Ex.PD/1 showing that Nasir Ali, deceased, was in a fit condition to make a statement. Thereafter, the statement of Nasir Ali was recorded by the Magistrate and the same was sealed into an envelop and was kept by him. On 21-6-1984 a Ruqqa Ex-PE was received from the Doctor desclosing the death of Nasir Ali. On the receipt of information the witness went to hospital and prepared the injury statement Ex.PK and the inquest report Ex.PL and sent the dead body for post-mortem examination in the custody of F.C. Muhammad Arshad. Muhammad Arshad F.C. produced before the witness Dhoti P.5 of the deceased which was taken into possession vide memo. Ex.PM. The witness recorded the statements of all the PWs. On 23-6-1984 he got prepared the site plan Ex.PC and its duplicate Ex. PC /1 by Nisar Ahmad Draftsman PW.4. The witness stated that he sent both the parcels containing blood-stained earth and blood stained Chhuri to the office of the Chemical Examiner through Ahmad Sher F.C. PW.3. On the receipt of the report of the Chemical Examiner pertaining to the aforesaid two parcels, he recorded the statements of both Moharrir Muhammad Farid and Ahmad Sher PWs.

6. On 21-6-1984 the injured Nasir Ali died in the hospital as stated in the earlier para. The aforementioned Dr. Abid Farooq conducted the post-mortem examination on the dead body of Nasir Ali on the same day at 12-30 p. m. and found the same injuries which were already recorded in the medico-legal report Ex.PA on 14-6-1984. The Doctor also noted that:-

(1) Left lung was injured.

(2) Pericardium and heart were healthy but right side contained blood.

(3) Adhesions were present in paritonial cavity due to peritonitis.

(4) Diaphragm left side was injured.

(5) Small intestines was also injured.

(6) Left kidney was injured.

In the opinion of .the Doctor the death was due to injury No.1 which caused shock and haemorrhage. It was also opined that the--injury was caused with sharp-edged weapon and was ante-mortem.

7. Muhammad Tariq complainant PW.7 and Fazal Elahi PW.8 are the eye-witnesses in the case who have supported the prosecution version in its material terms. Muhammad Tariq complainant PW.7 is the cousin brother of the deceased. He stated that about five months ago at about 9-00 p.m. Fazal Elahi PW.8 and Arshad Masood (given up PW) were present in the hotel of Akhtar in Bazar Rahmanpura, wherein Muhammad Aslam alias Achhu, appellant, came there in his presence. Nasir Ali, deceased, was cleaning his teeth with miswak and he spat there which fell on the foot of Muhammad Aslam alias Achhu, appellant. Upon this the appellant abused Nasir Ali, deceased, and in turn Nasir Ali also abused Muhammad Aslam, appellant. At this Muhammad Aslam, appellant, pulled out a Chhuri P.4, from his side pocket and inflicted with it a blow which landed on the left flank of Nasir Ali, deceased who on the receipt of the injury fell down on the ground. After causing the injury the appellant ran away. To the same effect is the statement of Fazal Elahi PW.8. However, Arshad Masood PW was given up by the prosecution. The witness PW.7 candidly admitted in his cross-examination that the appellant and the deceased Nasir Ali had grappled with each other. Fazal Elahi PW.8 supported the complainant PW.7 in every detail in that behalf. He deposed that the deceased was cleaning his teeth by miswak and during that process he spat. Upon this the appellant abused the deceased and the deceased in return also abused the appellant. The appellant took out a dagger from his dabb and caused a blow with the weapon which landed on the left flank of the deceased. The deceased on the receipt of the injury fell down whereupon the appellant ran away.

8. While making statement under section 342, Cr.P. C. the appellant denied the charge of the prosecution. However, he admitted the occurrence by, giving his own version. He stated that he was present in the hotel of one Akhtar at about 8-30 p. m. wherein he had gone to take milk. He stated that the hotel' is situated near his residence. The deceased, Nasir Ali, also came there and started cutting dirty jokes with him whereupon the appellant warned him to behave. However the deceased spat on his face and on the top of it he hurled abuses upon him. The appellant went on to say that he also exchanged abuses with him and thereafter the deceased opened aggression against him by giving him fist and kick blows. In this process of grappling with each other, the deceased caught him by his neck and tried to cause strangulation. Placed in this situation, the appellant stated that there was no alternative left with him but to pick up a chhuri lying on a table nearby and to give a blow to the deceased in self-defence. He deposed that there was no enmity between the parties and as such the occurrence -was the result of a sudden flare-up. He submitted that he was innocent and had acted in self-defence. No evidence was led by him in his defence.

9. The learned counsel for the appellant has contended before us that the incident in hand was the result of a sudden flare-up without any premeditation and it is borne out from the prosecution evidence itself that the deceased and the appellant had grappled with each other and it is now a settled law that grappling amounts to a fight and as the occurrence was the result of a sudden quarrel in a sudden fight, the offence would not fall within the definition of culpable homicide amounting to murder.

10. The learned counsel appearing on behalf of the State has also submitted that at any rate, it was not a case of premeditated murder.

11. After hearing the learned counsel for the parties and perusing the evidence of the prosecution as well as the statement of the appellant, we have come to the conclusion that the occurrence had taken place as a result of the exchange of filthy abuses between the appellant and the deceased and in the heat of passions sudden fight ensued between them. Muhammad Tariq PW.7 and Fazal Elahi PW.8 have, unanimously stated that the occurrence started with the deceased's spitting on the face of the appellant. The latter must have Teen highly offended over the uncivilized act of the deceased. Hence it is proved that the offence was committed by the appellant without zany premeditation and in a sudden fight under the heat of passions and was the result of a sudden quarrel between the appellant and the deceased and the appellant did not take any undue advantage of the situation or act in a cruel or unusual manner and gave only one injury which ultimately proved fatal.

Therefore, in our considered view, the offence will not fall under the provisions of section 302, P.P.C. but exception 4 to section 300, P.P.C. will be attracted. We, therefore, alter his conviction from section 302, P.P. C. to section 304, Part I, P.P. C. and sentence him to five years' rigorous imprisonment and a fine of Rs.15,000/ (rupees fifteen thousand) or in default thereof to undergo one year's rigorous imprisonment further. Since he has already been leniently dealt with, we do not feel inclined to extend him the benefit of section 382-B, Cr.P.C.

The death sentence imposed upon the appellant is Not confirmed. The appeal is accepted to the above extent.

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