1985 P Cr (PLP)

It was the same night that at 10‑30 Dr. Noor Wahab (P.W.10) examined Qadeer Ahmed and found a stab wound 2" x " entering the peritoneum cavity on the lateral left side of the lower part of the chest. The injury, in the opinion of the doctor, had been caused by sharp‑edged weapon within two hours and was grievous. A.S.I. Ghulam Mehdi (P.W.2) who had taken up the investigation rushed to the spot and prepared the site plan. He arrested the appellant on 9th at 9‑40 hours and recovered from him the knife alleged to be the weapon of offence in the presence of I.H.C. Dilawar Khan (P.W.8). It was on 10th that the appellant was produced before Muhammad Akhtar (P.W.11), a local Magistrate, and the latter recorded his confession. When translated into English it reads as under:‑ We were drinking bottles. Qadeer Ahmed was coming back after drinking a bottle and haulted about 15 yards from the shop. I and my companion Jalil were drinking bottles and were laughing over some thing but in the meantime Mushtaq Ahmed, a friend of Qadeer Ahmed, on account of our laughing came near us and asked us as to why we were laughing. We said that we were gossiping but Qadeer Ahmed thought that perhaps we were laughing at them. He abused us whereupon we came to grips. I had a small knife with me and when I and Qadeer were grappling Abdul Jalil and Mushtaq Ahmed tried to separate us but during this time Qadeer Ahmed was injured by me. We have no previous enmity. Qadeer Ahmed succumbed to his injury on 11th at about 6‑30 a.m. and the same day at 10 a.m. his autopsy was conducted by Dr. Akbar Khan. The post‑mortem examination report was proved through Dr. Parvez Akbar Khan (P.W.13). It is in the aforesaid report that on internal examination left side pleural cavity was found full of blood and inflamed. Left lung had shrunk and collapsed. The peritoneum was full of blood. Diaphragm and stomach were injured. The cause of death was bleeding from the wound in the diaphragm where stitches were slipped. The huge accumulation of blood in the left pleural cavity and pnemotorax on the left side had caused the collapse of the left lung.

3. The appellant had denied the allegations of the prosecution and had pleaded not guilty to the charge. He retracted from the, judicial confession and claimed that the same had been made under inducement, promise, undue influence and torture. He produced no defence.

4. The entire edifice of the prosecution case rested on the F.I.R. cum‑dying declaration of Qadeer Ahmed, the ocular account of the incident furnished by Mushtaq Ahmed (P.W.6) and Abdul Jalil (P.W.7), medical evidence and the confession of the appellant. Mr. Zahurul Haq, learned counsel for the appellant, after taking us through the entire Material on record candidly conceded that he could not question the guilt of the appellant in inflicting the solitary fatal stab wound on the deceased. He added that the dying declaration was genuine and true, the confession through retracted suffered from no infirmity and. the presence of both the disinterested eye‑witnesses at the scene of incident could not be doubted. He, however, strenuously contended that the offence committed by the appellant was not culpable homicide amounting to murder as envisaged by section 302, P.P.C. but fell within the mischief of culpable homicide not amounting to murder as contemplated by section 304 , Part 1 (second portion), P.P.C.

5. He emphatically urged that the provisions of Exception 4 to section 300 shall be attracted inasmuch as there was a sudden fight and in the heat of passions without premeditation the appellant had inflicted a single stab wound without taking undue advantage or acting in a cruel manner. The essential ingredients of this Exception are sudden fight, absence of premeditation, acting in the heat of passions and taking no undue advantage. The Material on record shows that the deceased, the appellant and both the eye‑witnesses were friends and were in early twenties. The deceased and the appellant were not on A inimical terms nor any of the eye‑witnesses was inimically inclined to either of them. Both the eye‑witnesses figure in the dying declaration as well as the confession and have been attributed a particular role, namely, separating the deceased and the appellant who had come to grips. It would be profitable to refer to the testimony of both the witnesses in order to spotlight the factual aspect of the unfortunate incident. Mushtaq Ahmed (P.W. 6) alluding to the laughter of the appellant had stated that he and Abdul Jalil tried to intervene and separate the two of them. During cross‑examination he stated that:‑-- The deceased asked from the accused as to why he had laughed at him. Accused replied that could he restrict his laughter. The accused in the meantime came near the deceased. The accused kicked the deceased before he was caught hold by Jalil. The deceased also made a posture of assault towards the accused but I caught hold of him. In the meantime, the deceased either abused the accused or said something else and the accused released himself from Jalil. Voluntarily stated that actually accused abused the deceased and then deceased tried to advance towards the accused. Abdul Jalil (P.W.7) narrated the particulars of the incident as under:‑- When the accused ejected a lughter on this deceased objected as to why he has been ridiculed. On this both of them made a posture of attack. I and Mushtaq Ahmed intervened. I held back the accused while Mushtaq Ahmed P.W. caught hold of the deceased. The accused then kicked the deceased. The distance between the deceased and accused was hardly a pace or two paces. Again I and P.W. Mushtaq intervened to separate them. In the meantime, the accused drew out a knife from his pocket, stabbed the deceased on the left flank and made good his escape. It is manifest from the testimony of both the eye‑witnesses reproduced above that the appellant and the deceased has grappled and were separated by both of them. The appellant had given a kick to the deceased and both of them made a posture of attack. Since the appellant and the deceased were friends and there wag no previous enmity between them the question of premeditation can, in the circumstances, be ruled out. They had grappled over a trivial incident of laughter and their passions rose high. Their friends did intervene and succeeded inn separating them. It was in the heat of passions that the appellant brought out a small knife and gave a blow to the deceased. We had a look at the knife and found that its sharp‑edged blade was 2 inches long.

6. The plea of the learned counsel for the respondent that there was no sudden fight except grappling would not, in our view, prevail. Such a question came up for consideration in Muhammad Shafi v. Crown P L D 1950 Lah. 170 and at page 179 it was observed that: That the accused and the deceased grappled with each other is not denied. The question is whether 'grappling' with each other suddenly can or cannot be called a sudden 'fight'. In my opinion a fight need not be with any weapons. A 'hand to hand fight' is a well‑known term and there is no reason for supposing that in such a fight the parties must be armed. People can break each others jaws, teeth and other bones with bare hands. Therefore, if two persons grapple with each other they can be said to fight. In Hansraj Singh v. Emperor A I R 1946 Lah. 41 Sharif, J. expressed the view that in order to constitute a fight it is not necessary that the parties to the fight should exchange blows. It can, therefore, be said that in the instant case the appellant and the deceased had grappled and a sudden fight had taken place. In view of the explanation to exception 4 it is immaterial as to which party had offered the provocation or committed the first assault. As a Matter of fact, as disclosed by both the eye‑witnesses the appellant as well as the deceased had made a posture of assault and it shows that the fight was sudden and without premeditation. In the aforesaid Lahore authority reference has been made to Mohan Narayan v. Emperor I L R 1946 All. 19 wherein the accused in the sudden fight and in the heat of passion took out a knife which happened to be with him and struck the deceased with it. The blow cut the liver of the deceased and brought about his death. It was held that the accused had not taken any undue advantage nor acted in a cruel manner.

7. The learned counsel for the appellant relied upon a number of authorities in support of his contention. In Muhammad Salim v. The State 1969 S C M R 653 there was a sudden fight between the accused and the deceased and the former giving one blow with a knife and without taking undue advantage ran away. It was held that the case fell under section 300, Exception 4 and that section 304, Part I, P.P.C. was applicable. Since the blow was struck at the abdomen the sentence was enhanced to 7 years' R.I. In Masoom Beg v. Muhammad Munir and another 1971 S C M R 476 two friends had fallen out with each other but after being separated by friends the same day the deceased visited the Bazar 'ignoring the threat of the assailant. Both had an exchange of abuses and while grappling the' accused stabbed the other with a knife without premeditation in a sudden quarrel in the heat of passion. It was held that the case fell under Exception 4 to section 300 and the conviction had been rightly altered by the High Court from section 302 to Part 1 of section 304, P.P.C. The occurrence took place in a heat of passion and the accused dealt a single knife blow to the deceased on the vital part of his body, namely, the chest and it was held in Muhammad Hayat v. The State P L D 1977 Lah. 222 that the accused had been rightly convicted for an offence under section 304, Part I, F.P.C. Reliance in this context was placed on the precedent cases noticed therein. In Muhammad Arshad and others v. The State 1979 P Cr. L J 51 there was no previous enmity between the parties and due to a sudden flare‑up without any intention or premeditation the accused gave a single blow to the deceased. He neither repeated the blow nor harmed the other P.Ws. though nothing prevented him from so doing. The conviction under section 302, P.P.C. was altered to one under section 304, Part I, P.P.C. In Hangle alias Ali Nawaz v. The State 1980 P Cr. L J 1275 one serious blow was given in a sudden fight and it was held that in the absence of previous enmity the accused could not be burdened with intentional causing of death of deceased and the conviction under section 302 was altered to 304, P.P.C.

8. The learned counsel for the respondent, on the other hand, referred us to Aslam Khan v. The State P L D 1967 Peshawar 25 wherein the accused had given a knife blow on the chest of the unarmed victim and it was held that the assailant was not entitled to the protection of Exception 4 to section 300, P.P.C. In this case quarrel commenced on the refusal of the accused to pay back the loan, they grappled and were separated. After a while the accused whipped out a knife and stabbed the deceased in his chest. P.W. Abdul Ghafoor who had intervened was also given a stab blow by the accused and the conviction under section 302, P.P.C. was maintained. In Wazir Gul v. the State 1975 S C M R 289 the accused armed with a knife and accompanied by an unknown person visited the shop of the deceased and tried to extract a loan from him. On the refusal of the deceased the stranger caught hold of him while the accused gave him two knife injuries and dragged him out of his shop. One of the stab wound was on the vital part of the body. It was held that the nature and seat of the injury was indicative of intention to kill. In Mehmood alias Gokal v. The State 1981 S C M R 578 the accused had inflicted an injury with a dagger on the chest of the victim and it was held that he had inflicted the injuries with intention to kill. In this case the motive was that the petitioner had eloped with Bilqees sometime back and she was restored to her father through the efforts of the deceased. This was resented by the accused because he claimed Bilqees to be his wife. In the first case the facts are distinguishable inasmuch as the assailant and the victim had grappled and were separated. It was after quite sometime that the assailant gave a knife blow on the chest of the victim and caused another blow to the P.W. Abdul Ghafoor too. The benefit of Exception 4 to section 300 was not, in the circumstances, extended to the appellant. The facts in the two other cases stand on different premises and the interpretation of Exception 4 to section 300, P.P.C. was not involved therein. These cases are, therefore, of little assistance to the learned counsel for the respondent. The consensus of opinion seems to be that where a single knife blow is inflicted without premeditation in a sudden quarrel and it is not shown that it was the intention of the assailant to cause death, the offence committed by him would be culpable homicide not amounting to murder. The fact that the assailant had not taken undue advantage nor had acted in taking or unusual manner is also to be taken notice of. Thus taking into consideration all the facts and circumstances we are of the view that the provisions of Exception 4 to section 300, P.P.C. are attracted to the instant case and the offence committed by the appellant falls within the ambit of section 304, Part I (second portion), P.P.C. In the result, we would partly accept the appeal, set aside the conviction and sentence of imprisonment of the appellant under section 302, P.P.C. and convict him under section 304, Part I, P.P.C. He is sentenced to undergo seven years R.I. The sentence of fine is maintained and the benefit of section 382‑B, Cr.P.C. shall be extended to him. The revision petition fails and is dismissed. M.Y.H. Appeal partly accepted.