1969 P Cr (PLP)

HAMOODUR RAHMAN, C. J.‑

The appellant was tried for the murder of one, Mohabat Khan, by the Additional Sessions .fudge, Karachi, who convicted him under section 302 of the Pakistan Penal Code and sentenced him to death. On appeal by the convict and a reference under section 374 of the Code of Criminal Procedure a Division Bench of the High Court of West Pakistan at Karachi dismissed the appeal and confirmed the sentence of death. The appellant then tiled a petition for special leave to appeal from Jail. Leave was granted to him on the 27th of June, 1968, to consider whether exception IV to section 300 of the Pakistan Penal Code was applicable in the facts and circumstances of this case to reduce his offence or alternatively to consider whether the said circumstances would justify commutation of his sentence from death to trans portation for life. The deceased, who was a tinsmith, lived with his wife and children at Juna Kumbarwara on the Noor Ilahi Road, Karachi. Many Pathans lived behind his house. One of the said Pathans, namely, Gulzar Khan, on the morning of the 21st of April 1965, was found urinating in front of the window on the back side of the deceased's house. The latter's son, Nadir Hussain, came out and objected to this on the ground that such conduct disturbed the privacy of their family members. This appears to have infuriated Gulzar Khan who began to abuse Nadir Hussain and also slapped him. He then called to his cousin, Muhammad Kasim, for help. The latter came out and joined in the remonstration but Gulzar attacked him too and a quarrel ensued between Nadir and Kasim on the one side and Gulzar on the other. At this stage the deceased also came up and tried to intervene but Gulzar Khan releasing his hold on Muhammad Kasim grappled with the deceased. The appellant, a brother of Gulzar Khan, who was then sitting in a cot in front of his house about 20/25 paces away then went inside the house and coming out with an open knife in his hand immediately stabbed the deceased in the stomach. The deceased fell down and the appellant and Gulzar ran away. The deceased was carried to the Civil Hospital where the doctor finding that his condition was critical informed the Police. A. S. I., Muhammad Jafar of Kalakot Police Station, on getting this information came to the hospital and applied to the doctor to certify whether the deceased was in a fit condition to make a statement. The certificate having been granted in writing the statement of the deceased was recorded, read over to him and thumb‑marked, after the correctness of its contents was admitted by the deceased. This statement was recorded in the presence of two Mashirs who also signed the statement. A first information report was then prepared on the basis of this declaration charging the appellant under section 307 of the Penal Code. Mohabat Khan expired on the 23rd of April when the offence was converted into one under section 302 of the Pakistan Penal Code. The appellant had in the meantime been arrested on 21‑4‑1965 from near Lea Market, Gulzar Khan could not be arrested, as he had absconded. The appellant also led to the recovery of the knife from the back side of the door of the courtyard of his house on the 2nd of May 1965, in the presence of two witnesses. It was a spring‑knife with a blade of about "I" having a handle of white bone with the words "Diamond hunting knife" engraved in English on its blade. The appellant alone was, in the circumstances, sent tip for trial. The prosecution case was sought to be established by the ocular testimony of Nadir, Abdul Majeed, Abdul Latif and Faqir Muhammad, the dying declaration of the deceased and the recovery of the knife at the instance of the appellant. F he Committing Court evidence of Muhammad Kasim was also put in under section 33 of the Evidence Act, as he, being a sailor, had in the meantime left for England on the ship "s.s. AZIZ BHATTI." Out of these five witnesses Nadir was the son of the deceased, Kasim was his nephew, but Majid, Latif and Faqir Muhammad were not, in any way, related to the deceased. They were only neighbours living in the locality. All of them consistently stated that they had seen the appellant coming out with an open knife, immediately stabbing the deceased and then running away along with Gulzar Khan. There was no suggestion even that any of them was inimical to the appellant. The evidence does not also disclose that either the deceased or his son or his nephew was armed with any kind of weapon. The only evidence is that after Nadir protested at Gulzar Khan urinating under the window a "Jhagra" ensued between Nadir and Gulzar, Kasim arrived on the scene and attempted to separate them but Gulzar gave him blows. It was at this stage that the deceased arrived and intervened. Gulzar grappled with him but the appellant suddenly came running with a knife and stabbed him in the stomach causing only one incised injury on the deceased of the dimension of 3 " x 2" Xcavity deep. Both Gulzar and the appellant then decamped. The learned counsel appearing in support of this appeal has contended that the appellant, being a brother of Gulzar Khan, may have been provoked into attacking the deceased on finding that Gulzar Khan was being attacked by three persons, namely Nadir, Kasim and the deceased himself. In view of the evidence of "Jhagra", grappling and exchange of blows and the circumstance that the appellant struck only one blow with the knife, it is urged, that this is a fit case for the application of Exception IV to section 300 of the Penal Code. Exception IV to section 300 of the Penal Code is in these terms :‑ "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." This clearly postulates three conditions; namely, there should be a sudden quarrel, in the course of which the accused must have acted without premeditation in the heat of passion, without taking undue advantage or acting in a cruel manner. In the present case, the evidence, as already stated, does not show that either the deceased or his nephew or his son were armed in any way and the quarrel, if any, was with Gulzar Khan and not with the appellant. The appellant, who was sitting on a cot 20/25 paces away, got up, went inside the house, came out with an open knife and straightaway stabbed the deceased in the abdomen. No provocation of any kind was offered to the appellant. The provocation, if any, was to Gulzar Khan. The appellant cannot A in the circumstances, claim the advantage of Exception 4 to section

300. The appellant in his own examination under section 342, totally denied the stabbing and claimed that he had been falsely implicated in this case. It is not his case that he had acted either in the defence of Gulzar Khan or in the heat of passion in any sudden fight. If anything the evidence shows that the appellant acted without provocation and with clearly the intent to kill after arming himself with a deadly weapon. In any event he acted in a cruel manner and took undue advan tage. The learned counsel next contended that since the appellant had inflicted only one blow on seeing his brother being attacked by as many as three persons, there was some provocation, even though it was not grave provocation and therefore, the extreme penalty of death was not justified in the present case. We have given our anxious consideration to this last contention but we find that there is no locus poenitentiae in the present case. Upon the evidence accepted by the Courts below the appellant deliberately got up from his cot, procured the knife from inside the house, then came straight to the deceased and stabbed him. There is no evidence that Gulzar was being over‑powered at this stage or was getting the worse in the fight. It cannot, therefore, be said that the appellant had any cause to be provoked. It is Gulzar who abused Nadir and slapped him, then grappled with Kasim and the deceased respectively when they came out. This, if anything, suggests that it is the deceased who was getting the worse in the fight. The action of the appellant, in the circumstances, was a wholly wanton, deliberate and unprovoked act. This can hardly justify the imposition of a lesser sentence. We, therefore, see no reason to interfere even with the sentence awarded by the Courts below which is a legal sentence and appears to us to be fully justified in the facts and circum stances of this case. No question of principle is involved. This appeal is, accordingly, dismissed. Appeal dismissed.