P L D 1954 Federal Court 304 (PLP)

MUHAMMAD MUNIR, C. J.

Abdul Majid and Sadiq Ali who are brothers, and Fazal Hussain who is their cousin, were committed to the Court of Session at Lahore for the murder of Mehraj Din. Against Sadiq Ali there was the further charge of his having caused grievous hurt to Taj Din, brother of Mehraj Din. The trial was held before the Additional Sessions judge at Sheikhupura who convicted them all under section 302 P. P. C. and sentenced each of them to transpor tation for life, Sadiq Ali having been acquitted of the additional charge. The convicted persons appealed' to the High Court of Lahore where a Division Bench consisting of Rahman and Shabir Ahmad, JJ., quashed the convictions and sentences of Sadiq Ali and Fazal Hussain. Abdul Majid's conviction and sentence, however, were confirmed. This is an appeal by Abdul Majid by special leave. The incident which led to these proceedings occurred at 11-30 o'clock on the morning of 10th January 1952 in front of some shops on the Grand Trunk Road in Shahdara. On that morning one Ismail Kumhar who gave evidence as the fourth witness for the prosecution came to purchase some paddy from the shop of Jalal. He was examining the commodity when Fazal Hussain, whose shop is adjacent, came with a cart laden with potatoes and cauliflowers. In the process of unloading the vegetable, Fazal Hussain accidentally knocked against Ismail who lost his balance and trampled on some cauliflowers. Fazal Hussain began to abuse Ismail, but Jalal and his brother Mehraj who was also at the shop protested and told Fazal Hussain that by abusing their customer he was abusing themselves. Thereupon both parties began' to abuse each other. The quarrel attracted the appellant and Sadiq from their nearby shop and they also joined with Fazal Hussain in the brawl. Both parties now began to grapple with and fist each other. They were, how ever, separated and the appellant returned to his shop. While there the appellant who is lame was taunted by Mehraj Din from his own shop with the deformity in his leg. On hearing the remark the appellant returned to the scene and began to grapple with Mehraj Din. While engaged in this scuffle they both fell on the ground, and Mehraj Din got on top of the appellant. Taj Din and Fazal Hussain began to pull away Mehraj Din from over the appellant by catching him by both arms when the appellant began to strike Mehraj Din with a knife. Mehraj Din suffered several serious injuries and was immediately taken in an unconscious state to the hospital, but he died within a short time. While he was alive his injuries were examined by Dr. S. A. Bukhari who found that he had sustained five stab wounds, four on the chest and one on the abdomen, which were all dangerous to life. Four of these wounds had reached the left lung. The post mortem on his body was performed by Dr. Rizvi who, apart from the five stab wounds which had been noticed by Dr. Bukhari, dis covered two more injuries, namely, an incised wound on the right middle finger and another superficial linear incised wound on the right thumb. On opening the thorax, he found several intercostal spaces and costal cartilages cuts. The left pleura, the left lung, the pericardium, the peritoneum, and the stomach were all injured. Death, according to the doctor, was due to shock and haemorrhage following the stab wounds. Each of the four injuries on the chest was individually fatal in the ordinary course of nature. Taj Din received one blow on the upper lip and gums resulting in the loss of two upper central incisors. The appellant also had some injuries. Three of these were abrasions, one on the left scapula, the second on the dorsum of the right hand, and the third over the palmer aspect of the right little finger. There was also a contusion mark on the back of the right scapula. At the trial several eye-witnesses gave evidence for the prosecution, but all of them, with the exception of Ismail, were related to the deceased, and were therefore treated by the High Court as interested witnesses. The learned judges based their findings on the evidence of Ismail who despite the fact that he was the occasion for the quarrel was considered by them to be independent. This man was examined thrice, first by a Magistrate under section 164 of the Code of Criminal Procedure, then before the Committing Magistrate, and lastly at the trial. His first two statements were substantially in the same terms and were in full accord with the evidence given by the other eye-witnesses. At the trial, however, contrary to his statement before the Committing Magistrate, Ismail made some important admissions in favour of the appellant. On the evidence of this witness, the learned judges found that though there was a sudden quarrel and a fight, the fourth exception to section 300 of the P. P. C. was not applicable because the appellant not only took undue advan tage of the deceased but also acted in a cruel manner. Summing up their conclusion they observed :- "With regard to Abdul Majid, however, we see no reason to differ from the finding of the learned trial judge that he was guilty of murder in the circumstances of this case. It is no doubt true that there was a sudden quarrel followed by a sudden fight in the course of which Abdul Majid repeatedly stabbed the deceased. It must be remembered, however, that the deceased was completely unarmed. It could not be said, therefore, that Abdul Majid had any reasonable apprehension that grievous hurt might be caused to him unless he used his knife. From the testimony of Ismail, it is clear that while the other two accused were pulling away the deceased from over Abdul Majid by his arms so that he was powerless to retaliate, Abdul Majid repeatedly stabbed him with the knife causing him five injuries, four of which were individually fatal. He, there fore, took undue advantage over his adversary and must be held to have acted in a cruel manner. Whether he stabbed him while the deceased was being pulled off from over him or while the other two accused were grappling with the deceased, his act seems to be covered by the definition of "murder" within the meaning of section 302 P. P. C." The sole question that we have to consider and decide in this appeal is whether the finding of the learned judges that the appellant "took undue advantage" of the position and acted "in a cruel manner" is so unwarranted by the evidence as to require interference by this Court in the exercise of its very extraordinary jurisdiction in criminal matters. Before we deal with this issue, it is necessary to determine the facts. If Ismail's evidence is analysed, it will be found that the picture that he presents of the whole incident is as follows :- (1) The exchange of abuses between Fazal Hussain on the one side, and Jalal Din and Mehraj Din deceased on the other, due to Ismail's having trampled on the cauliflowers of Fazal Hussain when the latter accidentally pushed the former while unloading the cart. (2) The coming of the appellant and Sadiq to the scene and together with Fazal Hussain their grappling with Jalal Din and Mehraj Din deceased. (3) Mehraj Din's taunting the appellant with his crippled leg whereupon the appellant returned to the scene from his shop and grappled with Mehraj Din, with the result that both of them fell down, and Mehraj Din got on top of the appellant. (4) While the appellant and Mehraj Din were struggling with each other, Fazal Hussain and Sadiq caught the latter by his arms in order to pull him away. The appellant then repeatedly stabbed the deceased until he fell in a state of complete collapse. There is no evidence that the deceased apart from felling the appellant on the ground attempted to cause him harm. He was completely unarmed and was not in a position to cause any serious injury to the appellant. The deceased was stabbed when not only he could not cause any harm to the appellant but also could not defend himself, as is clear from the fact that though the appellant struck .him with the knife several times he was unable to protect himself or to disarm the appellant. He had been caught by both arms by Fazal Hussain and Sadiq and was completely powerless when he was repeatedly stabbed. According to Ismail's statement in cross-examination by the defence, though the deceased had fallen down on the receipt of the very first injury with the knife the appellant went on giving him repeated blows thereafter. On these facts, the learned judges were quite justified to come to the finding that the appellant had taken undue advantage of the deceased's position by repeatedly striking him with a knife on the chest and the abdomen and had also acted in a cruel manner. 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 defini tion 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; and decisions, both here and in England, have uniformly laid down that if in the course of a sudden fight one party resorts to a dangerous weapon, like a knife, a dagger, a hatchet or a firearm, the other party being wholly unarmed, and causes mortal injuries to his adversary, the offence committed is nothing but murder. Apart from the celebrated case of Whitley [1829 1 Lewin 173] reference may in this connection be made to the cases of Kanshi and others v. Emperor (A I R 1926 Lah. 361) ; In re. Muthumada T(adan (A I R 1915 Mad. 1214 (2)) ; Sher Alam v. Emperor (A I R 1927 Lah. 808) ; Madaru v. Emperor (A I R 1928 Oudh 221) ; Khair Din and others v. Emperor (A I R 1931 Lah. 280); Lal Singh and another v. The Crown (1947 Cr. L J 786). In the present case, it is true that the deceased was a comparatively stronger man and in the initial scuffle he had downed the appellant who has a crippled leg, but when the deceased was caught by Fazal Hussain and Sadiq he had become completely powerless and was not in a position either to cause any harm to the appellant or to protect himself. If, therefore, the appellant used his knife at that stage, and after the deceased had fallen with the very first blow, he went on repeatedly stabbing him in the chest, with the result that of the seven injuries that he caused four were individually fatal, and the fifth grievous, the High Court was right in finding that the appellant took undue advantage of the deceased and acted in a cruel manner in killing him. Even if we were a Court of Appeal we could not have upset this finding of the High Court, but the true position is that in criminal matters we are not such a Court, and the real question that we have to determine in such cases is whether the High Court arrived at an apparently unreasonable finding, and whether in coming to that finding that Court overlooked any general principle of law or misconstrued any relevant statutory provision. It is impossible in this case to say that the High Court did any thing of that kind, and unless we hold that the learned Judges misunderstood the words "taken undue advantage or acted in B a cruel manner" there is no occasion for our interference. The next point taken by Mr. Shafi on behalf of the appellant is that the killing was not an offence and in any case not murder because the appellant acted in exercise of the right of self-defence. But the second exception to section 300 of the Penal Code which deals with this legal position provides that killing in excess of the right of self-defence is not murder only if the accused acts in good faith and without any intention of doing more harm than is necessary for the purposes of such defence. In the circumstances of the present case, it cannot be held that the appellant acted in good faith or that he had no intention of doing more harm than was necessary for the purpose of his defence. Learned counsel for the appellant also relied on the first exception to section 300 when his attention was drawn to that exception by the Court in the course of arguments. The plea of grave and sudden provocation was not advanced at the-trial or before the High Court. Nor was anything said about it in the petition for special leave to appeal. And though this fact alone does not preclude us from considering and giving effect to the plea, if there be facts on the record to support it, we consider that in this case there is not the slighest evidence of any grave or sudden provocation. Mere words can very seldom, if ever, amount to grave and sudden provocation, and the remark relating to the appellant's defect in the leg was certainly not grave and sudden provocation. On hearing that remark the appellant came from his shop, presumably after arming himself with a knife, and engaged in a scuffle with the deceased who, being stronger of the two, felled him on the ground. It cannot, therefore, be said that the appellant was deprived of the power of self-control by any grave and sudden provocation or that any such provocation proceeded from the deceased. The result is that no ground for our interference having been made out the appeal is dismissed. CORNELIUS, J.-In my opinion this appeal is entitled to succeed to the extent that the conviction of the appellant under section 302 P. P. C. should be replaced by a conviction under section 304 P. P. C. and the case returned thereafter to the High Court for imposition of an appropriate punish ment. Such a procedure will be in accordance with that followed by the Privy Council in the case of Kwaku Mensah v. The King (A I R 1946 p. 20). I base this opinion on the following grounds. It is sufficient for my purpose to quote, with reference to the facts, the findings recorded in the judgment of the High Court. After stating the names of seven eye-witnesses produced by the prosecution and stating objections against the reliability of four of them, the learned judges proceed to declare as follows :- (1) "Ismail, however, is completely disinterested in the case as he is neither related to the deceased nor is he proved to have any enmity with the accused persons . At the trial he alleged that the stabbing was done after Abdul Majid had been felled on the ground by the deceased Miraj Din who was a strong young man and while the deceased was being pulled off Abdul Maiid who lay on the ground by the other two accused, Sadiq Ali and Fazal Hussain. In the committing Court, however, this witness had merely said that while Sadiq Ali and Fazal Hussain were grappling with the deceased, Abdul Majid had stabbed him successfully with the knife without making it clear whether Abdul Majid had been felled to the ground or not .........The medical evidence does suggest that Abdul Majid must have been felled on the ground as is indicated by the presence of injuries on his back. It would thus appear that the version given by Ismail at the trial is in all likelihood correct". (2) "It is open to doubt whether Sadiq Ali and Fazal Hussain were aware of the presence of the knife in the hand of Abdul Majid while they were holding the deceased, On the other hand, finding Abdul Majid being worsted in the struggle with the much stronger Miraj Din, it would have been their natural impulse to pull away the deceased from over Miraj Din. In doing so they need not have entertained the idea that Abdul Majid should be enabled to stab the deceased. There was no previous enmity between the parties and the affair undoubtedly arose as a result of a sudden quarrel which led to a sudden fight". (3) "With regard to Abdul Majid, however, we see no reason to differ from the finding of the learned trial Judge that he was guilty of murder in the circumstances of this case. It is no doubt true that there was a sudden quarrel followed by a sudden fight in the course of which Abdu: Majid repeatedly stabbed the deceased. It must be re membered, however, that the deceased was completely unarmed. It could not be said, therefore, that Abdul Majid had any reasonable apprehension that grievous hurt might be caused to him unless he used his knife. From the testimony of Ismail, it is clear that while the other two accused were pulling away the deceased from over Abdul Majid by his arms so that he was powerless to retaliate, Abdul Majid repeatedly stabbed him with the knife causing him five injuries, four of which were individually fatal. He, therefore, took undue advantage over his adversary and must be held to have acted in a cruel manner". (4) The plea of self-defence which was half-heartedly put forward on his behalf by Mr. Muhammad Shafi is untenable in the circumstances of this case. Indeed no question of self-defence can arise when there was a sudden quarrel followed by a sudden fight". . The injuries received by Miraj Din were actually seven in number. Five of these were on the left side of the chest and abdomen, where a knife held in the right hand of a person lying under Miraj Din would be most likely to fall. These were all stab wounds and through each of them the point of the knife had penetrated into the body. The left lung as well as the heart were both cut. In addition, there were two small wounds on digits of the right hand. It seems to me that in arriving at their conclusions regarding the condition of Miraj Din when he was stabbed, the learned Judges have not paid sufficient attention to the circumstance that there were injuries on the right hand of Miraj Din which clearly give the impression that the right hand was free to move in front of his body when the knife blows were struck. This clearly has an effect in relation to the finding that Miraj Din was "powerless to retaliate". It seems to me impossible to say that a man who has pinned down a much weaker adversary on the ground, for which the use of at least one hand would be required, while the other hand is free, is "powerless to retaliate" when the adversary in his cramped and oppressed condition has recourse to a weapon to equalise the terms of the contest. It may be and probably is true that the attentions of Sadiq Ali and Fazal Hussain hampered Miraj Din but the conclusion that Miraj Din was thereby rendered "powerless to retaliate" can only be reached by ignoring certain clear facts directly relevant to the matter. The learned Judges have concluded that Abdul Majid had no reasonable cause for apprehension that, unless he used his knife, he would sustain grievous hurt at the hands of Miraj Din. This is based on the consideration that Miraj Din had no weapon, but inequality of strength between the two men has been found by the learned Judges, and they also found that in the trial of strength between them, this factor had led to Abdul Majid being knocked down and Miraj Din being on top of him. Besides being of markedly inferior physique, Abdul Majid is also lame in one leg. The possibility is at least apparent that to Abdul Majid it may well have appeared that his situation was desperate. Being on top, with at least one hand free, Miraj Din might at any time have gripped his throat (Abdul Majid states that Miraj Din did catch him by the throat, though no visible mark of injury was found in that region), or have beaten his head' on the ground or in some other way have applied such force as could lead to serious injury to Abdul Majid. The application of such force need not have been preceded by any notice to Abdul Majid, and was not unlikely in view of the incidents which had immedi ately preceded the fight. Therefore, it seems to me that the single circumstance of Miraj Din being unarmed could not by itself be an assurance to Abdul Majid, defeated and pinned down as he was, that he was in no danger of grievous hurt but even assuming that this was so, an apprehension of hurt at any rate was more than apparent, and in the situation as it existed, such hurt may well have been of a serious nature, demanding swift action on his part if it was to be avoided. The exact estimate of the hurt which Abdul Majid apprehended is necessary, however, only for determination of the plea of self-defence, and in view of the statement of Ismail that Abdul Majid ran towards Miraj Din upon being taunted by the latter and grappled with him, it would appear difficult to justify any part of his conduct on the basis of the right of defence of the person. The case has rightly to be considered on the basis of a sudden fight following a sudden quarrel which forms the subject of exception 4 to section 300 P. P. C., and the learned judges have rightly applied their minds to the question whether Abdul -Majid has been shown to have taken undue advantage or to have acted in a cruel manner. Their view in this regard seems to have been determined, to a great extent, by their findings that Abdul Majid had no reasonable cause to apprehend grievous hurt, and that when Abdul Majid struck his knife blows, Miraj Din was "powerless to retaliate". Considerations of the precise nature of the hurt which was apprehended are not strictly relevant, and the findings of undue advantage and cruelty are affected also by the over looking of certain clear circumstances affecting Miraj Din's capacity for applying force to Abdul Majid, whether or not by way of retaliation. But I would prefer to base my conclusion on consideration of the larger questions whether it is possible to say that the weaker party to a struggle such as is found to have taken place here takes "undue advantage" when he employs a weapon to equalise his strength with that of his opponent, and whether there can be cruelty on the part of the weaker person in these circumstances. To me it seems that there can be no doubt about the answers to these questions. Let judgment be without mercy on a person who himself has not done mercy. Yet, 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. It is not suggested and it is inconceivable that at the time when Abdul Majid used his knife, he was lying safely and comfortably under the body of Miraj Din, so that he could strike his blows choosing his targets at leisure. Nothing in the case indicates that he acted otherwise than as the circumstances would render natural, i.e., that under the pressure of the hopeless situation in which he found himself, while being deprived of the use of most of his limbs, he struck with the knife with the object of relieving himself from the weight of his enraged adversary, and from the threat of serious injury to himself. A person so placed would be expected to strike out impulsively and repeatedly until he senses that the danger is past. It is the natural and instinctive reaction. I cannot see that it can reasonably be taken as showing that the trapped man took undue advantage of, or showed cruelty towards, his formidable adversary. Therefore, it seems to me that all the circumstances of the case militate against any taking of undue advantage or any display of cruelty by Abdul Majid, and on this view, I base my opinion that the case falls clearly under exception 4 to section 300 P. P. C. The Order of the Court is that this appeal is dismissed. A. H. Appeal dismissed.