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Criminal Appeal No. J‑49 of 1960, decided on 2nd March 1961.

-- Whether person had taken undue advantage or acted in cruel manner within meaning of Exception 4‑Depends on circumstances of each case‑Accused in heat of passion upon sudden quarrel, being weaker than his adversary, inflicting single fatal blow on him‑Conviction altered from S. 302 to one under S. 304 Part I.

Nasiruddin Hyder v. Crown P L D 1950 Lah. 171 ; Ghulam Qadir v. The Crown P L D 1956 Lah. 41 and Muhammad Shafiq v. The State P L D 1960 Lah. 339 ref.

Azizullah Khan K. Sheikh for Appellant.

Assistant Advocate General for Respondent.

Date hearing : 9th February 1961.

The appellant Hyder Zaman has been convicted under section 302 for the murder of Abdul Khaliq, by Mr. Mehdi Ali Siddiqui, Additional Sessions Judge, Karachi and sentenced to "imprisonment for life", by which evidently was intended a sentence of transportation for life.

2. The facts of the cases, which have been established in the trial and have not been questioned before us, are these: The appellant Hyder Zaman was residing in the fourth but in a gail in the locality called Joona Dhobi Ghat, Karachi with one Abdur Razaq, D. W. 1, and the deceased Abdul Khaliq was living with his younger brother Rauf in the first but in the same gail. The appellant as well as the two brothers Abdul Khaliq and Abdur Rauf were Pathans and were known to each other, and according to the evidence of D. W. 1 Abdur Razaq, who was also a Pathan, Hyder Zaman had been accommodated in Abdur Razaq's but at the request of Abdul Khaliq deceased and his brother Rauf. Hyder Zaman, Abdur Razaq and Abdul Rauf used to work together at the Habib Textile Mills. On 17‑10‑57 at about 7 a.m. Hyder Zaman had gone to the shop of one Munsif Ali (Mansab), which was situated a few paces away on the larger lane which abuts the gall in which the huts of the parties were situated. This shop is shown in the sketch prepared by the learned Additional Sessions Judge after a spot inspection and is at page 50 of the paper book. While Hyder Zaman was at the shop the deceased Abdul Khaliq also came to that shop to see the time from the timepiece which was in that shop. He stood behind the appellant and though it is not clear as to what exactly he did to him but there is no doubt that he either cut an indecent joke with Hyder Zaman or did some physical indecent act, as a result of which Hyder Zaman got enraged and threw his chappal on Abdur Khaliq which was followed by a fight between the two, in which it appears Hyder Zaman, who was a younger person being 18 years of age, came out the words of the two. They were separated by 3 or 4 persons including Abdul Sattar, a Civil Supplies Inspector (P. W. 3), who also lives nearby, and Abdul Rauf, the brother of the deceased. Having been thus separated, the appellant as well as Abdul Khaliq and Abdur Rauf returned their respective huts and soon thereafter the appellant took a Iota from his but and was going towards the top marked A' on the sketch, which was across the larger lane, for fetching water. As he passed the but of the two brothers and saw Abdul Khaliq he is said to have told Khaliq that he (appellant) would be a bastard if he left Khaliq alive, upon which Khaliq went forward and told the appellant as to what he was talking about. This was followed by a grappling between the two and accord ing to the evidence of Abdus Sattar P. W. 3 and Muhammad Husain P. W. 2, Abdur Rauf also reached there and was trying to separate the two. In the meantime the appellant took out a knife from his pant pocket and stabbed the deceased on the left side of his chest, as a result of which Abdul Khaliq collapsed on the spot. The appellant immediately ran away from the spot and threw the knife while he was so running, but he was given a chase by Muhammad Hussain, P. W. 2 and others and was soon caught and was brought back to the place where Abdul Khaliq was lying. In the meantime, a police constable came to the spot to whom the blood‑stained knife was handed over and which was seized by him under a mashirnama. This police constable Shah Nazar, P. W. 6, took the accused to the Kalakot Police Station and the injured was also taken along by Abdur Rauf to the Police Station, where the appellant was arrested and Abdul Khaliq, who was unconscious and bleeding, was sent to the hospital where he soon expired as a result of the stab wound. The doctor, who held the post mortem examination on the body of Abdul Khaliq, found the following two injuries on his person :‑

"(1) Incised penetrating wound 1 " x " x chest deep vertical on the left side of chest 3 " below the nipple and 1 " from the middle line from the sternum.

(2) Contusion mark 1" x 1/8" on left side front of chest 1/2" below the injury No. 1."

The internal examination of the injury No. 1 showed that the sixth rib cartilage was cut 1" in length and the front of heart was also cut half an inch Q ) in length, and the right cavity of the heart had been entered. This injury in the opinion on the doctor was sufficient to cause death in the ordinary course of nature.

3. The evidence in support of the above version is over whelming and consists of the statements of P. W. 1 Abdur Rauf, P. W. 2 Muhammad Hussain and P. W. 3 Abdus Sattar. Their evidence finds support from the important circumstances that the appellant was chased immediately after he had given the blows and was apprehended at a short distance and brought to the scene of occurrence and then taken into custody by the police constable, P. W. 6, and taken to the police station. Besides the above evidence there is also the evidence of the police con stable Shah Nazar, P. W. 6, the Shop‑keeper Munsif Ali, P. W. 9, and Khan Zaman, P. W. 4. The appellant in his statement before the committal Court had denied each and every allegations against him which were put to him by the Additional City Magistrate before whom the committal proceedings had taken place. In answer to the last question whether he had to say anything else he replied that he was innocent and that he had nothing else to say for the present. In the Court of Sessions he stated that on the morning of the occurrence he was going to his work when the deceased Khaliq met him and stopped him and said that he would have to go with him; that Abdul Khaliq and Abdur Rauf had ill design against him sexually and on his being stopped he and Khaliq started quarreling and in the meantime Rauf came there and then the two brothers started grappling with each other, because each of them wanted the appellant for himself and then Rauf took out a knife to stab the appellant saying that it was he who had made the brothers quarrel among themselves, and at this point Khaliq pulled the appellant back and the knife instead of hitting the appellant struck Khaliq. This story was against the overwhelming evidence produced in the case on behalf of the prosecution. This version was not even supported by the solitary defence witness Abdur Razaq. It was, therefore, rightly rejected by the learned Additional Sessions Judge.

4. Before us Mr. Azizullah K. Sheikh, the learned counsel for the appellant, generally accepted the main version of the prosecution case, but he contended that upon those facts the offence proved was that of culpable homicide not amounting to murder inasmuch as the case was covered by Exception 4 to section 300 of the P. P. C. Exception 4 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."

Mr. Azizullah argued that after the first incident when the appellant was going towards the water tap with a Iota in his hand he had no premeditation about a second fight, and the evidence of P. W. 1 Abdur Rauf showed that it was Khaliq who had advanced towards the appellant which was followed by a grappling between the two persons. With regard to the threat alleged to have been given by the appellant that he would be a bastard if he left Khaliq alive, the learned counsel argued that in the first place this version should not be accepted, because it does not find place in the F. I. R. made by Abdur Rauf, but even if such a threat had been uttered by the appellant it was plain that he had not intended to carry it out at that time. He further argued that with reference to the application of Exception 4 to section 300 it was in any case immaterial as to which party had offered the provocation or committed the first assault. This being so, it was contended that this was a case of a sudden fight, in which the appellant in the heat of passion upon a sudden quarrel had caused the fatal blow, and considering that the appellant was the weaker of the two persons and had inflicted only one single blow it cannot be said that he had taken any undue advantage or had acted in a cruel or unusual manner. It was on the other hand contended by Mr. Khalid Ishaque, the learned Additional Advocate General, that if the blow had been given by the appellant in the first fight which took place ac the shop of Munsif Ali it could have been argued that Exception 4 to section 300, P. P. C. was applicable, but in the present case it appeared that the appellant was smarting as a result of the first fight in which he had been worsted and he then went to his but and armed himself with a knife and in the second quarrel, which was of his seeking, he gave the fatal blow and in doing so he also took undue advantage.

5. Mr. Azizullah strongly relied upon the case of Nasirudd in Hyder v. Crown (P L D 1950 Lah. 171). In that case the accused had struck only one blow to the deceased with a knife which had resulted in the death of the injured person. He had given that blow after a verbal quarrel which was followed by a grappling between him and the deceased. Upon the facts of that case it was held that the case was covered by Exception 4 to section 300 of the P. P. C. and the accused had not acted in a cruel or unusual manner. The judg ment in that case was written by Muhammad Jan, J., Muhammad Munir, A. C. J., as he then was, while agreeing with the findings of Muhammad Jan, J., had observed that the evidence in that case had produced an irresistible impression on his mind that the exact circumstances resulting in Professor Butt's death had not been disclosed by the witnesses, and that there must have been something said or done by the Professor which caused the appellant to use his knife in the heat of the moment. He further observed that the killing could only be explained on the hypothesis that something very provocative must have been said or done by the Professor. He also pointed out that the prosecution evidence had not explained the majority of the injuries on the person of the accused. On these considerations the learned A. C. J. thought that it would be safer to convict the appellant under section 304, P. P. C.

6. In a later case reported in Ghulam Qadir v. The Crown (P L D 1956 Lah. 41), which was a judgment of a Bench consisting of Muhammad Yaqub and Muhammad Sharif, JJ, it was held as follows :‑

"It cannot be said to be a proposition of jaw 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. Such a view is contrary to the plain grammatical meaning of the words used by the Legislature."

It is, of course, true that upon the facts of the case which was before Muhammad Yaqub Ali and Muhammad Sharif, JJ. the Exception 4 to section 300 of the P. P. C. was by no mean attracted.

7. In a more recent case reported in Muhammad Shafiq v. The State (P L D 1960 Lah. 339), it was held by a Bench consisting of Abdul Aziz Khan and A. R. Khan, JJ. as follows :‑

"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 on 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."

The facts of this case were that the accused was 15 or 16 years of age and the deceased had jumped upon him and it was in this situation that the accused had taken out a knife and stabbed him causing but one injury, the fight being unpremeditated and sudden. On these facts the conviction of the accused was altered from section 302 to one under section 304, Part I, P. P. C. We agree that the question whether a person has taken undue advantage or acted in a cruel manner must depend upon the facts .s of each case and no hard and fast rule can be laid down in that regard.

8. In the case before us we have to examine the circum stances of the second incident, in which the fatal injury came to be given. After the deceased and the appellant had been separated in the fight which took place near the shop of Munsif Ali both went to their respective quarters and it was time for both of them to go to their place of work. What happened thereafter may best be gathered from the evidence of Abdur Rauf, the brother of the deceased. This is what he says :‑

"Abdul Khaliq returned with me to our quarter and the accused went back to his quarter. Khaliq stopped at the door of our quarter and told me that he would not fight any more and was going on duty. Hyder Zaman (appellant) had mean while taken a Iota from his quarter and started to get water. While going to get water when he was about 4 yards from us he told Khaliq that he (accused) would be a bastard if he left Khaliq alive. Khaliq went forward and said what was Hyder Zaman talking about. So just near the water tap they grappled again. I ran forward to them. Meantime Hyder Zaman had taken out a knife from his pant pocket and had stabbed the deceased just below the left ribs."

This is what was stated by Abdur Rauf in the examination‑in -chief. In cross‑examination he stated that the tap was 2 to 3 paces from the place where they grappled and at the time of the grappling the Iota had fallen from the hand of the accused. He further stated that he had intended to intervene and had put his hand on the shoulders of each of them. It is clear from this evidence that even if the appellant uttered the words which are attributed to him he had no intention of fighting at that time. Admittedly he was the weaker of the two persons. In the words of Abdur Razaq, D. W. 1, the appellant was a boy as compared to Khaliq, who was a grown‑up young man. There is also the evidence of Abdus Sattar who said that in the first fight the appellant had been mercilessly beaten. If, therefore, the appellant went to his quarter and picked up his Iota and proceeded towards the tap he was obviously going to get water. Abdur Razaq says that the appellant came into his room and took a Iota and went towards the water tap to get water. He does not say that he picked up a knife at that time. It may, therefore, well be that the appellant had the knife with him, a thing which is customary with the Pathans. And when the appellant saw Khaliq while going towards the water tap his utterance would be a typical example of a weaker man who had been worsted in the earlier fight. The important point is that after uttering those words he proceeded towards the tap and it was the deceased Khaliq who followed him and over took him near the tap, which is shown in the sketch as being across the larger lane, and from this attitude it is reasonable to infer that it was he who started grappling with the appellant. Even P. W. 2 Muhammad Hussain has admitted in cross‑examina tion that it was Khaliq who grappled with the accused. There is therefore no doubt that this was again a sudden fight and which the appellant had in all probability not anticipated to take place at that time. Whether Abdur Rauf had gone there to separate the two or to join his brother in fighting the appellant is not of such consequence. The fact remains that the appellant had already been beaten "mercilessly" in the first quarrel and when he found Khaliq again grappling with him and also noticed the other brother coming up to the spot, it is not difficult to understand his appre hension that he was going to be thrashed again. If in the circumstances and in the heat of the moment he gave one single blow to the deceased while they were still grappling it cannot be said that he either acted cruelly or took undue advantage. After all he was the weaker party and it is his state of mind which has to be taken into consideration in the circumstances having regard to the fact that he had already been beaten up once a shortwhile earlier. It may also be noted that having wrested his hand from the grip of Abdul Khaliq he gave but one blow and releasing himself ran away from the place. We are, therefore, of the opinion that the case of the appellant comes within Exception 4 to section 300 of the P. P. C. We therefore alter the conviction of the appellant from section 302 to section 304 Part 1, P. P. C.

Having regard to all the circumstances of the case we set aside the sentence of transportation for life and impose upon the appellant a sentence of Ten (10) years' rigorous imprisonment. The judg ment and sentence passed by the Court below is accordingly modified.

K. B. A./A. H.

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