1989 PLP 1973 (SCMR)

MUHAMMAD HALEEM, C J.‑‑Riasat Ali aged 19 years, Muhammad Nawaz alias Gora, aged 18 years and Muhammad Hussain aged 55 years were convicted by the trial Court under section 302 read with section 34, P.P.C. for the murder of Muhammad Bashir alias Muhammad Akram, aged 25 years. Muhammad Hussain is the father of Riasat Ali. Upon their arrest on 15th July, 1980, Riasat Ali produced a blood‑stained dagger on 17th of July, 1980, while Muhammad Nawaz produced a blood‑stained knife on 22nd of July, 1980. The incident occurred at 10‑00 p.m. on 4th of July, 1980, at the shop of Taj Khan situate in village Siranwali, Tehsil Sialkot, as a result of the deceased demanding a seat near the Television Set. This was refused by Riasat Ali upon which the deceased threw a chair at him which did not strike him. He is also alleged to have thrown a bucket at him and thereafter both quarrelled and grappled with each other. It was then that Riasat Ali took out a knife and caused two knife injuries to the deceased‑‑one in front and the other at the back which resulted in his death. Riasat Ali in his defence stated: "I was witnessing the T.V. programme at about 8‑30 p.m. at the shop of Aziz Khan P.W. son of Taj Khan. Muhammad Khan P.W. was also there. Bashir deceased came there and there was a dispute with regard to the seating near the T.V. set. He abused me as he wanted to take my seat. On this there was exchange of abuses. He even tried to assault me with a wooden chair but I escaped. Then he grappled with me as he (was) stronger than me and I feeling apprehension for my life took out a knife from my pocket and in the exercise of right of private defence of person gave him two injuries. The complainant Sharif, Idrees etc. were not there. They came later. Only Muhammad Khan and Aziz were the persons who had seen this occurrence. Muhammad Nawaz accused did not participate in this occurrence at all. He has been falsely involved due to party‑faction in the village:" And examined Aziz Khan D.W. 1 son of Taj Khan a milk‑seller in whose shop they were seeing the T.V. programme. The High Court held that Muhammad Idris (P.W. 10) and Muhammad Rafiq (P.W. 11) were related to the deceased and Muhammad Sharif, and disbelieved the motive imputed by the prosecution that as Riasat Ali was beaten a year before by the deceased, he had by causing his death avenged his grievance. As the two injuries were of the same dimension, the High Court disbelieved the witnesses as to the part ascribed to Muhammad Nawaz alias Gora of causing one of the injuries which evidently showed that these were caused by one and the same crime‑weapon. In this view of the matter, the High Court also held the recovery of the knife to be true and his participation doubtful. The High Court also held the participation of Muhammad Hussain to be doubtful as he was empty‑handed and only a lalkara was ascribed to him which apparently gave the impression that as he happened to be the father of Riasat Ali, he was, therefore, implicated. Accordingly, the High Court acquitted both of them. However, on the question of the nature of offence committed, it did not accept the plea of self -defense raised by Riasat Ali, but gave the benefit of Exception IV to section 300, P.P.C. and awarded a sentence of nine years' rigorous imprisonment and also reduced the fine to Rs.1,

000. It is now urged that it was not a case of Exception IV to section 300, P.P.C., but that of murder simpliciter as by causing two knife blows on the vital parts of the body, he had acted in a cruel or unusual manner. Obviously the deceased was unarmed and Riasat Ali in his defence pleaded that as he was stronger than him he felt an apprehension for his life and for that reason took out the knife from his pocket and stabbed the deceased. 1t cannot be denied that there was grappling and may be that he felt likely to be subdued on account of the physical superiority of the deceased, but it cannot be said that there was any danger to his life or any apprehension of grievous injury. There is also no denying the fact that the incident happened all of a sudden over occupying the seat near the T.V. set, and that in the transaction the deceased initially was the aggressor. Whether the case is covered by Exception IV to section 300, P.P.C., it depends on the facts and circumstances of each case. In this context I would refer here to the observations of the Federal Court in Abdul Majid v. The Crown (P L D 1954 F C 304): "The words "undue advantage" and "cruel manner", which are used in the fourth exception to section 300 not in any special signification but in their ordinary meaning, are not capable of any precise definition and no such definition has ever been attempted, obviously because 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, and no general formula can be evolved which may be applicable to all cases that may arise. The principle, however, is clear that where a man being dangerously armed fights under an unfair advantage, the killing is murder and not merely manslaughter, even though mutual blows pass." In the instant case, it cannot be denied that the deceased was not in an advantageous position as he was unarmed and the fight was not equal in that regard. Therefore, the infliction of two knife injuries has to be considered in the context of the overall transaction. If, at all, he felt that he was not a match to the deceased, the infliction of two fatal knife blows could not be a justification for extricating himself from the fight which could not, in any event, lead to his death or an apprehension to him that he would receive grievous injuries particularly when the deceased was unarmed. In that view of the matter, I do not think it is a case which is covered by Exception 4 to section 300, P.P.C. And that is not the end of the matter but as the deceased was an aggressor and had grappled with Riasat Ali who was not a match to him, he could feel an apprehension of simple injury, yet by causing two knife blows he had exceeded the right of private defence. His case, therefore, is covered by Exception 11 to section 300, P.P.C. Accordingly, even if we are of the view that Exception 4 would not be applicable nonetheless he would be entitled to the benefit of Exception II to section 300, P.P.C. in which case the sentence would be more or less the same. Therefore, we find no purpose in granting leave and altering his conviction and sentence. The petition, therefore, fails and is hereby dismissed. M.A.K./M‑956/S Petition dismissed.