P L D 1954 Lahore 155 (PLP)

MUHAMMAD JAN, J.-Mukhtar son of Ismail, aged about 16 years, of Kot Bhagat, in the ,jurisdiction of police Station Sambarial, District Sialkot, has been convicted under section 302 P. P. C. and sentenced to transportation for life. He has appeal ed. The facts of the case-are that on 8th May 1952 a she-buffalo belonging to Buta P. W. 5 strayed into the appellant's field and damaged some fodder crop. The appellant and his grandfather Allah Bakhsh were annoyed and when Buta came to take away his buffalo he was abused. Buta abused them in return. Abdul Ghani P. W. 6 tried to pacify them but the womenfolk of both sides came out of their houses, situated close-by, and joined in the quarrel. Mst. Hashmat, mother of the appellant, and her supporters Mst. Talian Bibi and Mst. Hamidan were on one side and Mst. Khurshid Bibi, wife of Buta, Mst. Daulat Bibi, her sister Mst. Hashmat Bibi and Mst. Allah Rakhi were on the other. Mst. Allah Rakhi and the appellant's mother began to fight with each other. It appears that Mst. Allah Rakhi was assisted by Mst. Daulat Bibi P. W. 8 and Mst. Hashmat Bibi P. W.

9. At this stage the appellant arrived and stabbed MO. Allah Rakhi in the chest with a knife. In the Sessions Court the witnesses said that only Mst. Allah Rakhi and Mst. Hashmat Bibi were fighting and pulling each other's hair but Buta P. W. 5 had stated in the Committing Court that Mst. Daulat Bibi P. W. 8 and Mst. Hashmat Bibi P. W. 9 were also fighting with the appellant's mother. Another improvement in the evidence was that the appellant, on seeing Mst. Allah Rakhi fighting with his mother, went into his house from where he brought a knife and stabbed Mst. Allah Rakhi. In the first information report there was no mention of his having gone into the house to fetch the knife. It was simply said that the appellant came from the well and stabbed Mst. Allah Rakhi in the chest. The trial Court, after considering the evidence, hold that the appel lant on finding his mother grappling with Mst. Allah Rakhi and "thinking that his mother was being beaten by the women of the other party" had run inside his house, brought a knife and stabbed Mst. Allah Rakhi in the course of a sudden fight and in the heat of passion. From the findings above-mentioned one should have thought that the learned Sessions judge was going to apply Exception 4 of section 300 P. P. C. to the case but he did not. He convicted the appellant for murder but awarded the lesser sentence of transportation for life in view of the findings and the appellant's youth. In our opinion Exception, 4 was inapplicable because the appellant took undue advantage in stabbing Mst. Allah Rakhi. He struck a severe blow which cut the left pleura, the pericardium and a ventricle of the heart. We, however, consider that on finding his mother unequally matched and roughly handled by Mst. Allah Rakhi and her associates the appellant had the right to defend her. But, he; exceeded that right by stabbing an empty-handed woman in the heart. We, therefore, alter the conviction of the appellant from section 302 to section 304, Part II P. P. C. and reduce his sentence from transportation for life to seven years' rigorous imprisonment. To this extent the appeal is accepted. A. H. Conviction altered.