1980 PCr (PLP)

Bashir Ahmad (35) son of Gaman Jat Gadri, resident of Chak No: 225/WB, District Multan was charged .before learned Sessions Judge, Multan, for the murder of Abdul Rehman deceased under section 302, P. P. C. At conclusion of the trial, the accused was held guilty for the lesser offence of culpable homicide not amounting to murder under sec tion 304 (I) and ordered to suffer rigorous imprisonment for six years plus a fine of Rs. 2,000, in default further rigorous imprisonment for one year. The amount of fine, if recovered was ordered to be paid to the heirs of the deceased by way of mandatory compensation under section 544‑A, Cr. P. C. The accused has appealed through Jail to challenge his conviction and sentence.

2. I have perused the record with the assistance of learned counsel for the State. Abdul Rehman deceased was real uncle of the appellant and they both were along with their families residing in the same Ehata with courtyards divided partially by a common wall. On 14th of Decem ber, 1975, Mst. Kausar Perveen a young daughter of the deceased went to fetch water from the hand‑pump installed inside the courtyard. somewhat beyond the common wall (Point No. 8 in site plan PR). Mst. Amir Bibi wife of the appellant who also happens to be a real niece of the deceased quarrelled with Mst. Kausar Perveen and abused her. The deceased said to the appellant that his wife was pugnacious and he should leave this house. Some other arrangement will be made for his .residence. It is also in evidence that the deceased had used epithet of "shameless" for Mst. Amir Bibi. The appellant got infuriated and brought hatchet (P. 5) from his room which is at a distance of 5‑7 karams and dealt an injury to the deceased in the head using wrong side of the hatchet as a result of which the deceased fell down unconscious. The occurrence was witnessed by Shaukat Ali son of the deceased, his mother Mst. Shakooran, Wali Mohammad (P. Ws. 8 to 10) and Ali Mohammad who was not examined at the trial and dropped as won over .by the defence. The deceased succumbed to the injury at 2‑00 a.m. The crime was reported by Shaukat Ali at Police Station, Dunyapur at 6‑30. a.m. After having entered formal report (P. G.) Abdul Malik, Sub‑Inspector accompanied Shaukat Ali to the site. Dead body of the deceased was despatched to mortuary after necessary documents viz. injury sheet, and inquest report (PH/PJ) were completed. Blood‑stained earth was collected from the site by means of memo: Exh. PD. The appellant appeared before the Sub‑Inspector on 16th of December, 1975 and produced hatchet (P. 5) which was taken into possession in the presence of Abdul Ghafoor and Abdul Latif (P. Ws. 6/7) by means of memo. Exh. PE. The hatchet was on chemical examination found to be stained with human blood (PK/PL). Post‑mortem examination of the dead body was performed by Dr. Mohammad Siddiq Sabir (P. W. 1). The deceased was found to have on him solitary injury : Depression 3" x J" on the top and lateral side of the skull with an abrasion 1" x 1" about six inches above the left ear. There was bleeding from both nostrils. On dissection of the skull, depressed fracture of parietal bones on both sides and also frontal bone with intra cranial haemorrhage in the form of clotted blood was noticed. The doctor expressed the opinion that death was caused by intra cranial haemorrhage and shock resulting from fracture of skull bones. The injury was caused by heavy blunt weapon and was sufficient to cause death in the ordinary curse of nature. Eleven witnesses were called by the prosecution. The appellant denied the charge pleading false implication in the case by the witnesses against whom he had‑initiated proceedings under section 107, Cr. P. C. The deceased wanted to eject him from the house forcibly. He had learnt that the deceased had a fall from the bullock cart which resulted in his death. The appellant also denied recovery attributed to him. No evidence was led in defence.

3. Charge against the appellant rests on direct evidence of occurrence provided by Shaukat Ali, Mst. Shakooran and Wali Mohammad (P. Ws. 8 to 10) a$ corroborated by evidence of recovery of hatchet (P. 5) which as indicated above was found stained with human blood, and medical evidence. Learned Sessions Judge has held that the allegation that the appellant bad injured the deceased mortally in the presence of the above said eye‑witnesses is established properly. However, learned Sessions Judge was of the view that the case was covered by Exception I V to sec tion 300, P. P. C. in that the occurrence was the result of a sudden flare up and the appellant had not taken undue advantage or acted in a cruel or unusual manner. Shaukat Ali and his mother Mst. Shakooran P. Ws. 8/9 have in their statements confirmed the allegation that the deceased had altercated with the appellant over persistent quarrelsome attitude of his wife and had also asked the appellant to leave the house. The appellant had immediately brought a hatchet (P. 5) from his kotha and struck the deceased felling him unconscious on the ground. There is nothing whatever discredit the version of these two witnesses. The occurrence took place inside the house of the parties on Eid day. Presence of Shaukat and his mother is, therefore, not open to a serious question. Wali Mohammad (P. W. 10) is related to both sides equally and resides in the adjoining house. He says that he had reached the site after the deceased had been injured. He was lying unconscious on the ground and the appellant was present there with hatchet in his hand. He learnt from the persons present at the site that the appellant had caused injury to the deceased. The statement of this witness which was rightly admitted by learned Sessions Judge under rule of res gastae provides effective corroboration for statements of two eye‑witnesses in the case. Recovery of hatchet which further corroborates the statement of Shaukat Ali and Mst. Shakooran (P. W. 8/9) is also established properly by the statements of Abdul Ghafoor and Wall Mohammad (P. Ws. 6/7). They are independent and disinterested witnesses having no motive to make a false statement against the appellant. The question of delay in the first information report was properly con sidered by learned Sessions Judge. The explanation for delay in the report is quite plausible. Shaukat All (P. W. 8) has said that no transport was available due to Eid. He could not leave for police station nor the deceased who was lying unconsicous could be removed to hospital for treatment. Besides, in the peculiar circumstances of the case delay in the report could not be attached much significance. May be that, the comp lainant side were reluctant to lodge report with the police due to close relationship with the appellant. The incident could not be hushed up when the deceased passed away. In any case delay in the report which should not be applied like a rule of limitation in civil cases is at worst a suspicious circumstance in the case of prosecution and not in itself necessarily fatal to the prosecution in every case. There is no reason to suppose even that a false charge had been levelled against the appellant. A faint suggestion on the side of the defence that the deceased had an accidental fall from a cart which resulted in his death is not borne out by any circumstance direct or indirect in the evidence. A different suggestion was made to Mst. Shakooran (P. W. 9) during her cross‑examination that the deceased armed with hatchet went to the house of the appellant scaling over the intervening wall, the appellant disarmed the deceased and dealt him blow with the same hatchet in self‑defence. This suggestion which was denied by the witness reflects on the assertion of the appellant that the deceased was injured mortally in a fall from a bullock cart and also shows that the defence had no plausible counter version of the incident which could establish or even could raise a reasonable doubt that the deceased had not met a homicidal death at the hand; of the appellant.

4. Learned Sessions Judge who had handed down otherwise a well argued judgment has, however, fallen into error in holding that the case of the appellant was covered by Exception IV to section 300, P. P. C. The help of this exception can be invoked only if death is caused : (a) without premeditation ; (b) in a sudden fight in the heat of passion upon a sudden quarrel ; and (c) without the offender having taken undue advantage or acted in a cruel manner. To bring a case within this exception all the above ingredients must be proved. If any of the ingredients is missing, the accused would not be entitled to the benefit of this exception. The impor tant ingredient of sudden fight was lacking in this case. The deceased had no doubt an altercation with the appellant which may be termed as a quarrel. The term "fight" used side by side with the word "quarrel" in the said exception conveys something more than a verbal quarrel, and would mean an encounter with blows between two persons. Where one party was giving blows the case is of one way traffic and is not covered by the term fight as used in the exception. The exception was misapplied to the case.

5. However, the appellant could not be held. guilty for the offence of murder under section 302, P. P. C. The deceased was the real uncle of the appellant. There was no previous enmity between the parties except some trivial bickering between the women folk which are not uncommon in the families of the status of the parties. The unfortunate incident was the result of a sudden flare up occasioned by use of invective of "shameless" by the deceased against the wife of the appellant The appellant did not have a motive or any intention to kill the deceased as would be evident from the fact that he had used wrong side of the hatchet and did not repeat the blows when the deceased had fallen down. The doctor has characterized the injury as fatal in the ordinary course of nature. Merely because, the injury was sufficient to cause death in the ordinary course of nature does not mean that the accused had an intention to kill the deceased or had the knowledge that the injury was likely to ca use death. When there is neither the intention nor the knowledge that the' injury inflicted will cause death, the offence would be causing grievous hurt under section 325, P. P. C. The question of precise nature of offence in such cases calls to be decided on the peculiar circumstance of every case. Reference to decided case; on the point may not be much useful as facts of two criminal cases .are never alike. However, reference be made to the following‑cases which in point of facts are closer to the case in hand :‑ (1) Kheivna v. Emperor A I R 1929 La h, 37. (2) Kalu v. Emperor A I R 1929 Lah. 863. (3) Gama v. Emperor A I R 1934 Lah. 335 (4) Anwer v. State P L D 1965 Lah. 328. (5) Darya Khan v. Crown 1969 S C: DO R 637. (6) Ahmed and others v. State P L D 1971 S C 720. (7) Mohammad Haroon‑ur‑Rashid v. State 1978 P Cr. L. J 458. 6. 1n the result, I hold the appellant guilty for the offence under section 325, P. P. C. He had remained in custody for a period of 21 months to await conclusion of trial. Under section 382‑B, Criminal Procedure Code the period during which the accused was detained in custody should be taken into consideration in passing the sentence. The appellant is sentenced to rigorous imprisonment for four years with a fine of Rs. 2,000 ; in default further rigorous imprisonment for six months. The entire amount of fine, if realized, to be paid to the heirs of the deceased. Conviction modified and sentenced reduced. Sentence reduced