P L D 1966 (W (PLP)

On the 2nd of July 1962, at 8‑20 a.m. the same doctor performed the post‑mortem examination on the dead body of the deceased and found that the scalp was injured vide injuries Nos. 1 and

2. On examination of the skull multiple fractured pieces of bone of parietal and frontal on the right side of skull corresponding to injury No. 1, the fracture was extending to the right temporal bone up to the right ear level and extending on the left side passing corresponding to injury No. 2, reaching up to the left temporal bone. On opening the skull fractures were extending to anterior bone of the skull fracturing sphenoid bone both sides. Membrances were ruptured in the middle and there was a clot of blood inside the durameter more in the base. Brain was healthy and spinal card was not opened. Both the injuries were grievous and ante‑mortem and were sufficient to cause death in the ordinary course of nature. On the 1st of July 1962, at 10‑15 a.m. the doctor examined Khan, co‑accused of the appellant, and found simple injury on his left scapula with no external sign. On the same day Nadir, appellant, was examined and the following injuries were found on his body: (1) An abrasion " x 1" x 6" on the right shoulder. (2) A contused wound " x 1/10" skin deep on the left occipite parietal region. (3) A swelling 3" x 3" on the dorson of the left hand caused with blunt means. The injuries were simple in nature, of one to three days duration.

5. At the trial, Nadir, appellant, pleaded the right of private defence and the other accused denied their presence at the time of occurrence.

6. Amir Ahmad (P. W. 15) gave the ocular testimony of the occurrence in the following terms; on the 29th of June 1962, at digarwela under the direction of the official of the forest department, the wood in the sapurdari of the deceased was returned to the appellants and their co‑accused. After taking away the wood the four accused‑persons came to the house of the deceased and abused him. The deceased returned the abuse of Sultan accused. The deceased was given one blow each by Sultan and Nadir on his head and fell down. The witness was caused simple injuries by Khan and Jahandar on his head. According to him, the occurrence was witnessed by Sabir, Akbar and Kala. He narrated the occurrence to Sultan P. W. who lodged the report. Akbar (P. W. 16) stated to have reached the spot after the deceased was already injured. He is a relative of the deceased. Sabir (P. W. 17) was disbelieved by the trial Court for the same reason. Kala was abandoned by the prosecution. Khadim Husain A. S. I. (P. W. 19) arrested Nadir, appellant, and Khan accused on the 30th of June 1962, they both were medically examined. It was not suggested to him that Fatima, wife of Nadir, was also injured in the fight. No question was put to him if the injuries of the wife of Nadir, appellant, were brought to his notice at the time of the arrest of the appellant.

7. The learned trial Court disbelieved the presence of Akbar, Sabir etc. P. Ws. About Amir Ahmad it was observed that his statement was exaggerated and did not give the true version as to how the fight originated. The plea of Nadir was also rejected and held that the occurrence flared up all of a sudden bringing the case within Exception 4 to section 300, P. P. C. for which the appellants were found guilty.

8. It is contended that the plea of the accused has not been thoroughly examined and that the learned trial Court was not justified in reconstructing its own theory of the occurrence. It was vehemently argued before me that the injuries of Ghulam Fatima, wife of Nadir, were not taken into consideration. Mst. Fatima, wife of Nadir, appellant, was examined for her injuries on the 30th of June 1962, at 6 p.m. She had one contusion 3" x 1" on the back of right shoulder. In support of his conten tion, the learned counsel for the appellants relied on Hashmat and another v. Emperor (A I R 1933 Oudh 566) wherein it was held: "It is altogether beyond the scope and power of a Sessions Judge, when holding a criminal trial, while rejecting the story as told by the witnesses for the prosecution, or, in other words, while disbelieving their evidence in its main details, to build up a theory of his own as to what the transaction really was and upon an assumption of what their testimony ought to have been, to come to a conclusion adverse to an accused person . . ." In the case cited above, there were two sets of prosecution witnesses who gave two contradictory stories in respect of the vital portion of the occurrence. The facts of the cited case are not on all fours with the instant case. In the case of Akhtar Hussain v. State (P L D 1958 S C (Pak.) 251) it was laid down: "That in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advan tage or acted in a cruel or unusual manner, the question of self defence becomes merely academic, and in view of Explanation to Exception 4 to section 300, P. P. C. it was immaterial which party offers the provocation." The provision of law under which the appellants were found guilty is meant to apply to the cases in which notwithstanding that a blow may have been or some provocation given in the origin of the dispute, or in whatever way the quarrel may have been originated, yet the subsequent conduct of both the parties puts them, in respect of guilt, upon an equal footing. For, there is a mutual combat and blows on each side, and however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood already heated warms at every subsequent stroke, and the voice of reason is heard on neither, side in the heat of passion. Under such circumstances, there cannot be much room for discriminating between the respective degrees of blame with reference to the state of things at the commencement of the quarrel. It matters not what cause of quarrel is, or who strikes first, or who gave the provocation and it is under such circumstances that subsequent to such fight death caused is not murder but culpable homicide.

8. While respectfully following the rule laid down in the Supreme Court authority, I endorse the finding of the trial Court. The appeal on these grounds fails and is, accordingly, dismissed. S. Q. Appeal dismissed.