1988 PLP 220 (SCMR)

SHAFIUR RAHMAN, J.--The petitioner, a complainant in a case registered under Section 302, P.P.C. seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 6-7-1981 whereby the acquittal of the respondents under Section 302, PPC was maintained and so was his conviction in lieu thereof under Section 304, Part-Ii P.P.C. On the 11th of September, 1976 the respondent Muhammad Siddique and deceased Muhammad Younas had an altercation over the grazing of the goats of Muhammad Siddique in a plot reserved by Muhammad Younus for growing fodder for his buffalo. The altercation resulted, according to the prosecution, in one knife blow to the deceased at the hands of Muhammad Siddique which caused his death. Muhammad Din (P.W.8) and Allah Ditta (P.W.9) appeared as witnesses of the occurrence. The plea of the respondent at the trial was that his wife Mst. Rukhsana was grazing goats when Muhammad Younus objected and misbehaved with his wife having slapped her. He was attracted to the spot and was attacked by Muhammad Younas who threw him on the ground and it was in the exercise of his private defence that he had inflicted a single blow with the pen-knife on his person and that he himself appeared before the police voluntarily and narrated the same details of the occurrence. He examined Khadim Hussain D.W. in his defence. The trial Court believed the prosecution version discarded that of the defence and held as follows:

"It was a sudden quarrel without any premeditation in the heat of passions. The accused only gave single blow with chhuri to the deceased. He did not act in cruel or unusual manner. The offence committed by him is, therefore, covered by exception IV to Section 300, P.P.C. and would fall under Section 304 Part II, P.P.C." The offence was held to be made out under Section 304 Part II, PPC and the respondent was convicted and sentenced to five years' R.I. and a fine of rupees one thousand. The State preferred an appeal against him which was dismissed in limine by the High Court on 15-3-1980. The complainant also filed a revision which was heard alongwith the appeal of the accused and was separately disposed of. The appeal as well as the revision both were dismissed. The learned Judge in the High Court re-examined the evidence and concluded as follows:- "From the evidence brought on the record it is apparent that when the deceased asked the appellant not to graze his goats the latter started abusing the former whereupon the former also abused the latter. The appellant took out the chhuri which had been concealed in the fold of his loin cloth and abruptly stabbed the deceased. He did not repeat the blow but fled away. His action indicates absence of his intention to murder the deceased. Therefore, he was rightly convicted under section 304 Part II of the Pakistan Penal Code. The sentence awarded to him is not excessive." The learned counsel for the petitioner has contended that on the finding recorded by the trial Court and affirmed by the High Court, namely, that there was a sudden quarrel and during the course of that quarrel the deceased was stabbed by the respondent the benefit of Exception IV could not at all be extended. There had to be, according to the learned counsel, a finding that a fight had ensued and it was during the course of that fight without taking undue advantage that the knife blow had been inflicted. The legal proposition advanced by the learned counsel for the petitioner is correct. The finding of the trial Court does not go beyond establishing a sudden quarrel taking place during the course of which the deceased was stabbed. However, the view taken by the High Court is not quite the same. Reading the prosecution evidence in juxta-position with the plea of the accused and the attending circumstances it appears that existence of a fight immediately before the infliction of the knife blow was clearly inferred though not so expressed in words. Barring that omission there is no substantial defect in appraising the evidence which could require our interference. We consider that the conviction and sentence have been properly and lawfully so recorded, there is no merit in the petition and leave to appeal in refused. S.Q./M-265/S. ??????????????????????????????????????????????????????????? Leave to appeal in refused.