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Criminal Appeal No. 561 of 1959, decided on 25th January, 1960.
S. 300, Exception 4 ‑When applicable‑"Fight", meaning‑Grappling, 'fight"‑Verbal quarrel not a fight"‑"Cruel manner"‑-Use of formidable weapon does not per se mean that accused "took undue advantage or acted in a cruel or unusual manner"‑Penal Code (XLV of 1860), S. 304, Part I.
In order to establish that a case comes under Exception 4 to section 300, P. P. C., it is necessary for the accused to show :‑
(1) That the offence was committed without premeditation
(2) that it was committed in a sudden fight in the heat of passion upon a sudden quarrel ; and
(3) that he did not take any undue advantage and did not act in a cruel or unusual manner.
If any of these requirements is not satisfied, the Exception can have no application.
The word "fight" is used in the Exception to convey some thing more than a verbal "quarrel". The fact drat the terms "fight" and a "quarrel" are used in the Exception side by side, indicates that the intention of the legislature was that there should be something more than a mere verbal quarrel. A cursory glance at the Exception would show that the "fight" contemplated by the Exception follows the "quarrel" which would not per se afford the offender the protection of the Exception.
In order to bring a case within Exception 4, it is necessary that both parties should have used force. If a person gives blows to another, there will be a fight only if the other hits him back or at least gets ready or attempts to assault. It will not be a fight if he keeps quiet.
Grappling is a fight' within the meaning of Exception 4.
The mere fact that the accused used a pistol, a knife or any other formidable weapon and used it on the vital part of the victim's body does not per se mean that the accused "took undue advantage or acted in a cruel or unusual manner."
Whether a person can be said to have taken undue advantage or acted in a cruel manner depends upon the circumstances of each particular case. No general 'formula can be evolved which may be applicable to all cases that may arise. The Exception is meant to apply to cases wherein, in whatsoever way the quarrel originated, the subsequent conduct of both the parties put them upon an equal footing.
The word cruelty' as used in Exception 4 to section 300, P. P. C. carries its ordinary sense of the heartless use of force to cause injury to a person who has no power of resistance. In a case of this kind, such a feeling would more naturally be expected from the stronger, rather than from the weaker adversary. The latter must necessarily be using whatever means come to his hand to remedy the inequality of his condition, in a desperate trial of strength.
Where the accused was 15/16 years old and the deceased jumped upon the accused who took out a knife and stabbed him, causing but one injury, the fight being unpremeditated and sudden:
Held, that the accused could not be said to have taken undue advantage of the victim.
Conviction of accused was altered from section 302, P. P. C. to one under Part I of section 304, P. P. C.
Abdul Majid v. Crown R L D 1954 F C 304 ; Nasir‑ud‑Din Haider v. The Crown P L D 1950 Lah. 171 ; Ganesh Das v. Emperor A I R 1928 Lah. 813 (1) ; P. Rami Reddy and others v. Chintha Chinna Narasi Reddy A I R 1938 Mad. 924 ; Atma Singh and Kahan Singh v. State A I R 1955 Pb. 191 ; Mahanarain v. Emperor A I R 1946 All. 19 ; Mohindar Singh and Sunder Singh v. The State A I R 1954 Ph. 121 ; Husain v. Emperor A l R 1934 Lah. 818; Karam Singh and another v. The Crown A I R 1926 Lah. 219 ; Abdul Majid v. Emperor A I R 1935 Lah. 149 ; Jagat Singh v. Emperor 27 P L R 6 and Karam Singh v. Emperor 27 P L R 132 ref.
Ghulam Qadir v. The Crown P L D 1956 Lah. 41 distinguished.
S. M. Zafar and Abdul Qayyum for Appellant.
M. B. Zaman, A. A. G. for Respondent.
Sultan Ahmad for Complainant.
Date of hearing : 6th January, 1960.
Muhammad Shafiq and his maternal uncle Muhammad Hanif were tried by the learned Sessions Judge, Lahore, under section 302/34 of the Pakistan Penal Code, the allegations against them being that on the 5th of June, 1958 at about 6 a.m. in Bazar Wacchhowali, they had, in furtherance of their common intention, murdered Muhammad Anwar. The learned Sessions Judge convicted Muhammad Shafiq under section 302 of the Pakistan Penal Code and Muhammad Hanif under section 323/34 of the Pakistan Penal Code, and sentenced the former to death and the latter to one year's rigorous imprison ment. Muhammad Shafiq has appealed to this Court against his conviction, and sentence. The case is ‑also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for the con firmation of the death sentence.
2. The case for the prosecution may be summarised as follows. The parties 'lived in adjacent houses inside Shahalmi Gate, Lahore. The appellant used to stand on the roof of his house and to stare at the womenfolk of the deceased. Muhammad Aslam (P. W. 4) and his brother Muhammad Anwar deceased asked the appellant not to stare at their womenfolk but in vain. Then they asked Muhammad Hanif convict, the maternal uncle of the appellant, to admonish his nephew and to stop him from staring at their women. Instead of taking a reasonable view of the 'situation, Muhammad Hanif convict told the deceased and his brother Muhammad Aslam P. W. that nobody could stop Muhammad Shafiq appellant from staring at their womenfolk.
3. On the eventful day, at about 5‑45 a.m., Muhammad Anwar deceased accidentally met Muhammad Shafiq appellant and his maternal uncle Muhammad Hanif convict near his shop in Wacchhowali Bazar, and again asked the appellant to desist from staring at his womenfolk. This led to an altercation between the parties, and it is alleged that Karim Bakhsh (P. W. 3) Faiz Muhammad (P. W. 9), Muhammad Hanif alias Ghaunsa (P. W. 10), Abdur Rashid (P. W. 11) and Muhammad Iqbal (P. W. 12) intervened and separated the parties. While departing, Muhammad Hanif convict held out the threat that he would soon return and take revenge from the deceased. Abdur Rashid P. W. went to the deceased's house and informed the deceased's brother Muhammad Aslam P. W. of the quarrel between the deceased and the appellant and Muhammad Hanif convict. On hearing this, Muhammad Aslam P. W. left for the shop. When he reached Muhammad Iqbal's shop, he met the appellant and Muhammad Hanif convict. On Muhammad Aslam's inquiry, Muhammad Hanif convict told him that Muhammad Anwar had insulted him (Muhammad Hanif) by pulling his collar and that he would soon take revenge. Muhammad Aslam P. W. tried to pacify the appellant and Muhammad Hanif convict but in vain.
4. The appellant and 'the convict came to the deceased's shop after ten minutes and challenged him to come down. The deceased first tried to pacify the appellant and Muhammad Hanif convict and asked them to go away, but as they persisted in challenging him, he came down from his shop. Muhammad Hanif convict clasped the deceased from behind and asked the appellant to stab him, whereupon Muhammad Shafiq appellant took out a knife and stabbed the deceased in the chest. Muhammad Aslam P. W., brother of the deceased, Ghaunsa (P. W. 10) and Abdur Rashid (P. W. 11) chased the appellant. Ghaunsa P. W. threw a brick bat at the appellant hitting him on the back of his head. In the meanwhile, the persons who had collected shouted that the injured person Muhammad Anwar was dying and should be attended to, whereupon the pursuers gave up the chase and returned to the injured man. Muhammad Aslam P. W. saw his brother Muhammad Anwar bleeding pro fusely. He placed Muhammad Anwar in a tonga intending to take him to the Mayo Hospital. Muhammad Anwar, however, breathed his last on the way to the Hospital.
5. At the hospital, F. C. Muhammad Ayub (P. W. 7), who was on duty there, telephoned to the Lohari Gate Police and informed them as follows :‑
"Muhammad Aslam son of Ghulam Muhammad, caste Rajput, resident of House No. 1765‑D, has brought the dead body of Muhammad Anwar son of Ghulam Muhammad, caste Rajput, resident of House No. 1765‑D, in a tonga to the Mayo Hospital, Muhammad Aslam has. stated that Muhammad Hanif and his nephew Muhammad Shafiq had stabbed Muhammad Anwar on the left side of the chest, and that Muhammad Anwar breathed his last while he was being brought to the Mayo Hospital in a tonga."
On the receipt of the telephonic message from the Mayo Hospital, Sub‑Inspector Abdul Ahad (P. W. 16) dictated the information to H. C. Sira j‑ud‑Din (P. W. 8) and directed him to register a formal first information report. Accordingly, H. C. Siraj‑ud‑Din P. W. registered a formal case under section 302 of the Pakistan Penal Code, vide Exh. P. R.
6. Sub‑Inspector Abdul Ahad P. W. directed A. S. I. Ghulam Rasul (P. W. 15) to go to the Mayo Hospital, while he himself left for the spot. On reaching the hospital, A. S. I. Ghulam Rasul prepared the inquest report and despatched Muhammad Anwar's dead body to the mortuary for post mortem examination. He also recorded the statements of Muhammad Aslam (P. W. 4), Ghaunsa (P. W. 10) and Irshad Ahmad (P. W. 13).
7. Sub‑Inspector Abdul Ahad P. W. reached the spot, collected bloodstained earth and sealed it into a parcel vide memo. Exh. P. G. Foot Constables Ghulam Muhammad and Muhammad Sharif, who had been deputed for the purpose, arrested the appellant and produced him before the Sub‑Inspector. The appellant led the Sub‑Inspector and others to the fuel‑wood store of Muhammad Shafi and brought out the bloodstained knife Exh. P. 1 from a heap of fuelwood. The Sub‑Inspector sealed it 'into a parcel vide memo. Exh. P. H. The Sub Inspector also took into possession the appellant's shirt Exh. P. 2. and pajama Exh. P. 3 and sealed them into a parcel vide memo. Exh. P. J. It may be stated that the serologist found the knife Exh. P. 1 to be stained with human blood.
8. Doctor Fayyaz Mahmood (P. W. 1), who conducted the post‑mortem examination, on the 5th of June, 1958, at 1.30 p.m., observed the following injuries on Muhammad Anwar's dead body :‑‑-
(1) A stab incised wound, 1 '' x 7/10 x 3.3/10", situated obliquely on the left side of the front of chest, over the first inter‑costal space, 1 '' to the left mid. line. After cutting partly the upper margin of the second left costal cartilage, it had pierced the pleura at that level and entered the front of upper lobe of the left lung near the medical border. It then reached the hilum (root) of the lung. Blood vessel and air passages at that level were severed. The pleural cavity contained 2 pints of blood. Direction of the wound was from the fore backwards and slightly downwards.
(2) An abrasion, " x ", on the right knee in front.
In the opinion of the doctor, injury No. 1 was sufficient in the ordinary course of, nature to cause death.
9. Doctor Muhammad Rashid Sheikh (P. W. 2) examined Muhammad Shafiq appellant on the 5th of June, 1958, at 6 p.m. and found the following injuries on his person :‑
(1) An irregular curved lacerated wound, " x " x 1/3", on the middle of the back of head, 3" above the nape of the neck.
(2) An abraded area, 3" x 1", on the inner surface of and back surface of left elbow.
(3) An abrasion, " x ", behind the right elbow.
(4) A superficial leniar scratch, 1 " on the outer surface of the right fore‑arm.
(5) An abrasion, " x ", on the front of the lower part of the left chest, 2 ", below the left nipple.
All the injuries which had been caused with a blunt weapon were of 24 hours duration. Except injury No. 1, which was kept under observation, all injuries were simple in nature.
10. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated at the trial:‑--
"Some time before the present incident the deceased Anwar and Ghaunsa P. W. were sitting at the fountain and I was also there. The deceased kissed me and started addressing me in endearing terms. I objected to this and stopped talking to him and to Ghaunsa. On the day of the incident, I was going out for a walk and passed in front of Anwar's shop when he called me and told me that he regarded me as his younger brother and would not cut any jokes with me. He then invited me to come into his shop and put his arm around me and took me there. When I was inside the shop, he closed the door of his shop which opens in the gali while the other door opening in the bazar remained half open. Anwar then asked me to submit to .him for committing sodomy adding that I do this for others. He also opened a knife at which I agreed to his demand and he put the open knife on the ground by his side. I then tried to escape but Anwar got hold of me and threw me against the machines fixed in the shop thereby causing injuries including one at the back of my head. I managed to release myself and rushed out of his shop taking his open knife in my hand with me. When I came outside the shop, then Anwar jumped on me with the result that the open knife in my hand struck him, without any intention on my part to stab him. I then remained at the spot ".
The appellant examined Muhammad Akbar (D. W. 1) and Muhammad Sharif (D. W. 2) in his defence. The learned Sessions Judge examined Ghulam Muhammad as a Court witness (C. W. 1).
11. According to the prosecution, there were two incidents. In the first incident, the parties merely had an altercation and were separated by Karim Bakhsh (P. W. 3), Faiz Muhammad (P. W. 9), Ghaunsa (P. W. 10), Abdur Rashid (P. W. 11) and Muhammad Iqbal (P. W. 12). The evidence tendered by the prosecution to prove this incident has to be very carefully scrutinised as the finding on this part of the case has an important bearing on the result. of the appeal. If it is proved that the parties had an altercation and that Muhammad Hanif convict threatened to take revenge in a few minutes, then it was a case of pre‑planned and deliberate murder. On the other hand, if the finding be that the prosecution has failed to establish this incident, then the incident in which Muhammad Anwar deceased received the fatal injury has to be considered along with the surrounding circumstances on the record.
12. I now proceed to analyse the evidence of those pro secution witnesses who were examined at the trial to prove the first incident.
(i) Karim Bakhsh (P. W. 3) stated:
"On the day of the occurrence, about ten months ago, at about 5‑45 a.m., I was sitting at my shop selling ice. 1 saw that the two accused were grappling with the deceased Muhammad Anwar outside the shop of Muhammad Anwar. Muhammad Iqbal (P. W. 12), Abdur Rashid (P. W. 11) and Faiz Muhammad (P. W. 9) and I separated the parties."
It will be seen that the witness omitted the name of Ghaunsa (P. W. 10) as one of those who had intervened and separated the parties.
(ii) Faiz Muhammad (P. W. 9) did not say anything about the incident. His statement, at page 27 of the printed paper book, shows that he merely identified the dead body at the time of the post‑mortem examination.
(iii) Muhammad Hanif alias Ghaunsa (P. W. 10) stated :‑
"I saw that the two accused Hanif and Shafiq were having an altercation with the deceased Anwar and the parties were abusing each other. Hanif accused had caught Anwar by his collar'. I and Iqbal (P. W. 12), Karim Bakhsh (P. W. 3) and Rashid (P. W. 11) intervened and separated the parties".
This witness omitted the name of Faiz Muhammad (P. W. 9) is one of those who had intervened. Further, his evidence differs from the evidence of Karim Bakhsh (P. W. 3) re : what happened between the parties at the material time. According to 'Karim Bakhsh P. W., the appellant and Muhammad Hanif convict grappled with the deceased, whereas according to this witness, the parties had a verbal altercation and exchange of abuse and Hanif (convict) merely caught Muhammad Anwar deceased by the collar, to which Karim Bakhsh P. W. made .no reference in his statement.
(iv) Abdur Rashid (P. W. 11) stated :‑
"At about 6. or 6‑15 a.m., ten months ago, I had gone out to take lassi at a shop next to the shop of Anwar and I found that the two accused Hanif and Shafiq were having an alterca tion with the deceased Anwar. I tried to intervene but did not succeed in separating them. I then went to Anwar's house and informed the elder brother Aslam P. W. about the quarrel that was going on."
Abdur Rashid's evidence requires no comments. According to Karim Bakhsh (P. W. 3) and Ghaunsa (P. W. 10), Abdur Rashid P. W. was one of those who separated the parties. It is significant that Abdur Rashid P. W. does not support them on the point. According to him, he alone attempted . to separate the parties, and having failed went to inform the deceased's brother Muhammad Aslam P. W. Thus, his statement is totally different from the statement of the other two witnesses who, as already pointed out, made mutually contradictory statements re : what actually happened between the parties at the material time.
(v) Muhammad Iqbal (P. W. 12) stated :‑
"When I reached Forman Girls High School, which is 5 or 6 yards from Anwar's shop, I saw the two accused, whom I know, having an altercation with Anwar deceased. The latter had caught hold of the shirt's collar of Hanif. I intervened and separated them. I was helped by Rashid, Ghaunsa and Karim Bakhsh. I brought away the two accused with me and advised them not to quarrel in this manner. While I was still talking to the two accused, Aslam and Irshad also reached there and Aslam apologised on behalf of his brother and promised to admonish him, but Hanif told Aslam that in five minutes he would let him know.".
The above statement shows that the parties merely had an alterca tion and that there was no actual grappling. Further, Muhammad Anwar caught hold of the collar of Muhammad Hanif convict. Thus he contradicts Muhammad Hanif alias Ghaunsa (P. W. 10) who had stated that Muhammad Hanif convict had caught Muhammad Anwar by the collar.
13. I have very carefully considered the evidence of the five witnesses. In my opinion the statements of these witnesses are discrepant on material points and the prosecution has failed to establish that the first incident occurred at all.
14. A reference to the medical evidence will show that the appellant had as many as five injuries on his person. The pro secution has certainly explained one of these injuries, but has failed to explain the remaining injuries on the appellant's person. In my opinion, the first incident has been introduced by the pro secution to explain the injuries on the appellant.
15. The prosecution examined Muhammad Aslam (P. W. 4), Ghaunsa (P. W. 10) and Irshad Ahmad (P. W. 13) to prove the second incident. Muhammad Aslam (P. W. 4), the brother of the deceased described the alleged second incident in the following words:‑-
"Soon, in a matter of minutes, the two accused turned up at my shop. They started abusing my brother Anwar and called upon him to come down the shop. My brother asked them not to prolong the quarrel but they persisted and he came down from the shop. At that stage, Hanif secured Anwar in his grip and asked Shafiq to strike, whereupon Shafiq brought out a knife from the fold of his trousers and struck a blow on the front part of Anwar's chest. The incident of the actual stabbing was seen by me, P. Ws. Karim Bakhsh (P. W. 3), Irshad (P. W. 13) and Ghaunsa (P. W. 10). My brother shouted that he had been stabbed by Shafiq. He ran after the two accused for a few paces and then fell down. Shafiq escaped in the direction of Wachhowali while Hanif ran towards Shahalmi Bazar. I tried to chase the accused along with Ghaunsa and others, and during this chase Ghaunsa threw a brick at Shafiq which hit him at the back of his head. At that time Shafiq fell down but got up again and started running."
The witness was duly confronted with his previous statement in order to show that (1) he had omitted to state that on being hit by a brick, Muhammad Shafiq appellant fell down and then ran away (P. 23, line 59), and (2) he had omitted to state before the police that Muhammad Hanif had shouted to Muhammad Shafiq to stab Muhammad Anwar deceased (P. 24, line 52). Muhammad Hanif alias Ghaunsa (P. W. 10) corroborated the above statement of Muhammad Aslam P. W. He too was con fronted with his previous statements to show that he had failed to mention in his police statement that Muhammad Hanif convict had asked Muhammad Shafiq appellant to stab Muhammad Anwar deceased (P. 28, line 18). In cross‑examination, Ghaunsa P. W. admitted that Muhammad Shafiq never fell down on being hit by the brick but merely sat down for a second, got up and then ran away. Here is how Irshad Ahmad (P. W. 13) described the occurrence:‑--
"In the meantime, the two accused also arrived there and started abusing Anwar. Aslam and Anwar both asked the accused not to prolong the quarrel and to go away but they did not stop. Anwar then went down from his shop where upon Hanif gripped him from behind and shouted to Shafiq to strike with a knife. Thereupon Shafiq took out a knife from his trousers and stabbed Anwar on the chest. After the stabbing Shafiq ran towards Wacchhowali Bazar while Hanif ran into Shahalmi Bazar. Aslam and Ghaunsa P. Ws. chased Shafiq."
He too was confronted with his statements before the police and the committing Magistrate where he had failed to state that Muhammad Hanif convict had asked Muhammad Shafiq appellant to stab the deceased with the knife.
16. It will be seen from what has been stated above that each one of the witnesses tried to improve upon the prosecution case inasmuch as the part attributed to Muhammad Hanif is concerned and this makes the presence and participation of Muhammad Hanif in the occurrence highly doubtful. After having analyzed the two incidents, I have not been able to find any explanation of injuries Nos. 2 to 5 on the person of the appellant.
17. The appellant admitted the presence of blood‑stains on his clothes, as well as injuries on his person. He stated that he bad received these injuries while he was in Muhammad Anwar deceased's shop. According to him, the deceased attempted to commit sodomy on him on the point of an open knife. He, how ever, managed to run out of the shop carrying the deceased's knife. The deceased jumped at him as a result of which the knife, which the appellant was holding; struck the deceased accidentally. The appellant examined Muhammad Akbar and Muhammad Sharif in his defence. The learned Sessions Judge has not accepted the defence version, and I see no reason to differ from him. It is in evidence that the sun bad risen and a number of shops in the vicinity had been opened. The defence story that the deceased attempted to commit sodomy on the appellant by showing a knife at that hour of the day in a shop in a densely populated locality like Wacchhowali, when the shops had opened, is too tall a story to be believed.
18. The learned Sessions Judge examined Ghulam Muhammad as a Court witness. The witnesses who had been examined regarding the second incident did not admit that Ghulam Muhammad C. W. was present when the deceased received the fatal injury. In cross‑examination, Muhammad Aslam P. W. was confronted with his previous statement to show that Ghulam Muhammad C. W. had seen the occurrence, (p. 24, line 17). Ghulam Muhammad C. W. described the occurrence in the following words :‑
"I saw and heard the accused Shafiq present in Court abusing Anwar deceased and the deceased in turn abusing this accused. Shafiq asked Anwar to come down from the shop. Thereupon Anwar jumped down on Shafiq. At that moment, Shafiq stabbed Anwar on his chest with a knife which Shafiq was holding in his hand. Anwar cried that he had been stabbed by Shafiq who had started running away. At that time, Ghaunsa P. W. came round the corner of the gali and I told him that Shafiq had stabbed Anwar. Ghaunsa chased Shafiq and threw a brick‑bat at him which hit him at the back of the head. Ghaunsa succeeded in catching Shafiq. Then I asked Rashid P. W. to go and call Aslam, the brother of the deceased. Then Aslam came and took the injured Anwar in a tonga to the hospital."
19. After having gone through the evidence on the record, I have not been able to find any explanation regarding injuries Nos. 2 to 5 on the person of the appellant. I have already held that the prosecution case regarding the first incident bristles with discrepancies and has to be ruled out. As already pointed out, the witnesses who were examined to prove the second incident have also been guilty of improving upon the prosecution case. Thus, there is no sufficient reliable evidence to establish the origin of the fight. There is no doubt that Muhammad Shafiq appellant caused the fatal injury to Muhammad Anwar deceased near the latter's shop. In view of the fact that the three witnesses of the occurrence have been guilty of improving upon the prosecution case, and the fact that the prosecution has failed to explain injuries Nos. 2 to 5 on the person of the appellant, the view most favourable to the appellant has to be taken. Karam Singh v. Emperor (27PLR132) supports this view.
20. Relying on the statement of Ghulam Muhammad (C. W. 1) it was argued that the appellant was passing by the shop of the deceased when an altercation took place between the parties over the appellant's conduct inasmuch as he used to stare at the deceased's womenfolk, and in the course of the altercation the deceased jumped down from his shop and grappled with the appellant, who took out a knife from the fold of his pajama and stabbed the deceased. According to the learned counsel Muhammad Shafiq appellant received injuries Nos. 2 to 5 in this scuffle. Relying on Nasir‑ud‑Din Haider v. The Crown (P L D 1950 Lah. 171), the learned counsel for the appellant urged that the case was covered by Exception'4 to section 300 of the Pakistan Penal Code; The learned counsel for the State argued that (1) mere grappling does not amount to a fight' within the meaning of Exception 4 to section 300 of the Pakistan Penal Code, and that (2) in any case the appellant acted "in a cruel or unusual manner". In support of his contention, he relied on Ghulam Qadir v. The Crown (P L D 1956 Lah. 41). He further submitted that Nasiruddin Haider's case had been con sidered in Ghulam Qadir's case and had not been followed. According to the learned counsel, Ghulam Qadir v. The Crown was the latest pronouncement on the subject, and should be followed. It is, therefore, necessary to examine both these cases in the light of Exception 4 to section 300 of the Pakistan Penal Code.
21. In Nasir‑ud‑Din Haider v. The Crown, all the eye witnesses had stated that immediately after the verbal quarrel, the accused and the deceased grappled with each other and the accused stabbed the deceased with a knife. Muhammad Munir; A.C. J. (as he then was) and Muhammad Jan, J. held that the offence committed did not amount to murder but culpable homicide not amounting to murder being covered by Exception 4 to section 300 of the Pakistan Penal Code. The following passage in the report in Ghulam Qadir v. The Crown would show the facts of the case :‑
"Rahim Bakhsh, the only eye‑witness in the case, stated that he heard a raula from the house of the appellant and went there. In the courtyard Mst. Rasul Bibi was standing grappling with Ghulam Qadir appellant. Then said, there was a verbal altercation between the two. Both the appellant and the deceased were exchanging abuses at which the former took out a dagger from the fold of his loin‑cloth and gave a stab to Mst. Rasul Bibi on her right side and ran away."
It appears that in the course of the arguments, the learned counsel for the convict urged that the case was covered by Exception 4 to section 300 of the Pakistan Penal Code. Muhammad Yaqub Ali Khan and Muhammad Sharif, JJ. observed :‑--
"The learned counsel for the appellant contended that the facts of this case were covered by Exception 4 to section 300 of the Pakistan Penal Code. He also relied upon a Division Bench authority of this Court (Nasir‑ud‑Din Haider v. Crown). The authority cited by the learned counsel is distinguishable on the facts and the question whether an accused person did not take undue advantage or act in a cruel manner is a pure question of fact which has to be determined with reference to the material before the Court in each case. For these reasons, we do not propose to go into the facts of Nasir‑ud‑Din Haider's case. But if it was intended to lay down as contended by the learned counsel, as a proposition of law that it did not amount to taking undue advantage or acting in a cruel manner if .an accused person suddenly assaulted the deceased with a knife and killed him on the spot, because the latter had in the course of an altercation abused and given one or two slaps to the former, then we respectfully beg to differ with this view because it will be contrary to the plain grammatical meaning of the words used by the legislature."
The learned counsel for the State relied on the words of the passage underlined by me and contended that Muhammad Yaqub Ali Khan and Muhammad Sharif, JJ. had dissented from the view of law taken in Nasir‑ud‑Din Haider's case. After giving my most anxious thought to the argument, I regret I cannot accept this contention. The passage quoted above clearly shows that the learned Judges had stated that (i) the facts in Nasir‑ud‑Din Haider's case were different from the facts of the case before them, and (ii) they did not propose to go into the facts of Nasir‑ud‑Din Haider's case. The underlined passage is, therefore, mere obiter dictum.
22. Exception 4 to section 300 of the Pakistan Penal Code reads :‑
"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."
In order to establish that a case comes under this Exception it is necessary for the accused to show:‑--
(1) That the offence was committed without premeditation ;
(2) that it was committed in a sudden fight in the heat of passion upon a sudden quarrel; and
(3) that he did not take any undue advantage and did not act in a cruel or unusual manner.
If any of these requirements is not satisfied, the Exception can have no application. I have held that the alleged first incident had not been proved. The fateful occurrence was, therefore, not premeditated. Muhammad Shafiq appellant had five injuries on his person. As already stated, injury No. 1 has been explained by the, prosecution, while injuries Nos. 2 to 5 have not been explained. I have already held that the prosecution had introduced the first incident to explain these injuries, i.e. Nos. 2 to 5. Thus the only explanation of these injuries is that the appellant received them when the appellant and the deceased were grappling with each other. If the fatal injury was caused while the parties were grappling, as contended, the important question for decision is whether the case falls within the purview of Exception 4 to section 300 of the Pakistan Penal Code.
23. The word fight' is not defined in the Penal Code. According to Webster's New International Dictionary, Second Edition, it means "To strive or contend for victory, with armies or in single combat; to attempt to defeat, subdue, or destroy an enemy, either by blows or weapons ; to engage in physical contest". Thus, the word "fight" is used in the Exception to convey something more than a verbal "quarrel". The fact that the terms "fight" and a "quarrel" are used in the Exception side by side, indicates that the intention of the legislature was that there should he something more than a mere verbal quarrel. A cursory glance at the Exception would show that the "fight" contemplated by the Exception follows the "quarrel" which would not per se afford the offender the protection of the Exception. The word "fight" is also used in section 159 of the Pakistan Penal Code, which relates to an affray. Section 159 of the Pakistan Penal Code reads :
"When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray."
To prove "affray" the evidence must show (a) that there was fight, (b) that it was in a public place, and (c) that it led to the breach of the public peace.
24. In Ganesh Das v. Emperor (A I R 1928 Lah. 813 (1)), the accused was quarrelling with a debtor. There was no exchange of blows. The accused was convicted under section 160 of the Penal Code. On revision, Broadway, J. held:
"The record of the evidence in this case shows that Ganesh Das was having a quarrel' with one of his debtors. No witness says that any blows were exchanged, and the finding of the Magistrate is that Ganesh Das and Karam Chand were quarrelling in the public street over money matters. Whatever offence Ganesh Das may have committed, it is not one within the purview of section 160, I. P. C.
25. In P. Rami Reddy and others v. Chintha Chinna Narasi Reddy (A I R 1938 Mad. 924), it was held :
"When members of one party beat members of another party and the latter do not retaliate or make any attempt to retaliate, but remain passive, it cannot be said that there was fighting between the members of one party and the members of the other and offence of affray cannot be said to have been established."
26. Thus, mere verbal quarrel is not a fight. In order to bring a case within Exception 4, it is necessary that both parties should have used force. If a person gives blows to another, there will be a fight only if the other hits him back or at least gets ready or attempts to assault. It will not be a fight if he keeps quiet.
27. The "fight" contemplated by the Exception need not necessarily be with weapons. Atma Singh and Kahan Singh v. State (A I R 1955 Ph. 191), supports this view, If A and B grapple with each other it would be a fight within the meaning of the Exception.
28. In Mahanarain v. Emperor (A I R 1946 All. 19), Mahanarain appellant and Malkhan deceased were seen by the witnesses grappling with each other in a field and in the course of that grappling Mahanarain took out a knife and struck Malkhan. Verma, J. held that the case was covered by Exception 4 to section 300, but Hamilton, J. did not agree with him. The case was referred to Iqbal Ahmad, C. J. who agreed with Verma, J and the sentence under section 302, was altered to one under section 304, Part I of the Penal Code.
29. In Mohindar Singh and Sunder Singh v. The State (A I R 1954 Ph. 121), a quarrel arose between A and B and both grappled with each other, and caught hold of each other's long hair. On B's shouting, his relatives, including C, came to the spot. Some helpers of A also came. Grappling itself turned into free fight in which C gave fatal blow with his spear to A. B and C also received injuries at the hands of relations of deceased A. The High Court held that the case was one of sudden fight and fell within Exception 4 to section 300, and, the offence of C fell under section 304, Part I of the Penal‑Code, and a sentence of seven years rigorous imprisonment was declared to meet the ends of justice.
30. In Hussain v. Emperor (A I R 1934 Lah. 818), Husain appellant and Nadir deceased exchanged abuse and grappled with each other. During the struggle, the accused suddenly took out his knife and stabbed the deceased piercing his lung and caused his death. Young, C. J. and Addison, J. held that Exception 4 to section 300 applied, and altered the conviction from section 302 to one under section 304, Part I of the Penal Code, and sentenced Husain to ten years' rigorous imprisonment.
31. Thus, the view of the law taken in Nasir‑ud‑Din Haider's case that grappling is a fight' within the meaning of Exception 4 finds full support from A I R 1946 All. 19, A I R 1954 Ph. 121 and A I R 1934 Lab. 818. I respectfully endorse this view.
32. The next question to be considered is whether the appellant took undue advantage and acted in a cruel or unusual manner or not. In Karam Singh and another v. The Crown (A I R 1926 Lah. 219), in the course of a sudden fight, Ranga Singh took out a pistol be had with him and probably fired three shots, one of which missed, while one struck the deceased on the thigh and one in the abdomen. Death was due to the injury to the abdomen. It was held though Ranga Singh had a pistol upon him, he did not come with the intention of using it and that he did use it in the course of the sudden fight. The conviction under section 302 was altered to one under section 304, Part I of the Penal Code and the accused was sentenced to seven year's rigorous imprisonment.
33. In Abdul Majid v. Emperor (A I R 1935 Lah. 149), the accused picked up a skewer for breaking ice and plunged it into the stomach of the victim in the course of a sudden fight. Young, C. J. and Addison, J. altered the conviction to the First Part of section 304 and sentenced the accused to ten years' rigorous imprisonment.
34. The facts in Husain v. Emperor have been stated in paragraph 30 and need not be repeated.
35. In Jagat Singh v. Emperor (27 PLR 6), the accused stabbed the deceased with a knife in the course of a sudden fight. Martineau and Eforde, JJ. altered the conviction under section 302 to one under section 304, Part II of the Penal Code and sentenced the accused to three years' rigorous imprisonment.
36. In Nasir‑ud‑Din Haiders' case, referred to above, the accused fatally stabbed the deceased with a knife. Muhammad Munir, A. C. J. and Muhammad Jan, J. held that the case was covered by Exception 4 to section 300 of the Pakistan Penal Code, and sentenced the accused to four years' rigorous imprisonment and a fine of Rs. 10,000. In the aforesaid case, Mahanarain v. Emperor, the accused had fatally stabbed the deceased with a knife in a sudden fight and the conviction under section 302 was changed into a conviction under section 304 Part 1 of the Penal Code and the accused was sentenced to ten years' rigorous imprisonment.
37. A perusal of the authorities referred to above would show that the mere fact that the accused used a pistol, a. knife or any other formidable weapon and used it on the vital part of the victim's body does not per se mean that the accused "took undue advantage or acted in a cruel or unusual manner." It is note worthy that the victims in most of the cases referred to above were unarmed.
38. Whether a person can be said to have taken undue advantage or acted in a cruel manner depends upon the circum stances of. each particular case. Munir, C. J. observed in Abdul Majid v. Crown (PLD 1954 FC 304) "No general formula can be evolved which may be applicable to all cases that may arise." Exception 4 F to section 300 of the Penal Code is meant to apply to cases wherein, in whatsoever way the quarrel originated, the subsequent conduct of both the parties put them upon an equal footing. In Abdul Majid v. Crown, Cornelius, J., who wrote a dissenting judgment, observed :‑
"Can it be said that the person who through his relative weakness is in imminent danger of defeat and damage from his opponent is in a position to show mercy to the latter I conceive that the word cruelty' as used in Exception 4 to section 300, P. P. C. carries its ordinary sense of the heartless use of force to cause injury to a person who has no power of resistance. In a case of this kind, such a feeling would more, naturally be expected from the stronger, rather than from the weaker adversary. The latter must necessarily be using whatever means come to his hand to remedy the inequality of his condition, in a desperate trial of strength."
39. In the case in hand, the appellant is 15‑16 years old According to Ghulam Muhammad (C. W. 1) the deceased jumped H upon the appellant who took out the knife and stabbed him. The fight was unpremeditated and sudden, and the appellant, who was the weaker of the two, suddenly took out a knife and used it but once and then took to his heels. In the circumstances, he cannot in my opinion, be held to have taken undue advantage of the victim. I would, therefore, alter his conviction from section 302 to one under section 304 Part I of the Pakistan Penal Code, and sentence him to ten years' rigorous imprisonment.
40. The sentence of death imposed on the appellant is not confirmed.
A.H Conviction altered.
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