1976 PLP 36 (SCMR)

MUHAMMAD GUL, J.‑‑These two consolidated appeals by special leave arise out of a judgment of the Lahore High Court dated 24‑11‑1970. Abdul Hayee (appellant in Criminal Appeal No. 49) was convicted by 'the learned Additional Sessions Judge Lyallpur at Jhang under section 302, P. P. C. for the murder of Ghulam Abbas and sentenced to death. He was sentenced to one year's rigorous imprisonment under section 324, P. P. C. also for causing injuries to Muhammad Nawaz P. W. a brother of the deceased. Abdul Hayee's brother Muhammad Younis was also jointly tried with him on the above charges but was acquitted. The matter coming up for confirmation and in appeal before it, the High Court altered the conviction, of Abdul Hayee under section 302, P. P. C. to that under section 304, Part I, P. P. C. and sentenced hire to 10 year's rigorous imprisonment. His conviction and sentence under section 324, P. P. C. were, however, maintained. Appeal No. 48 is by Muhammad Nawaz, the deceased's brother and ode of the injured P. Ws. He calls in question the judgment of the High Court in so far as it altered the conviction of Abdul Hayee under section 302, P. P. C. by the trial Court rte that under section 304, Part I, P. P. C. In this appeal, leave was granted to consider, whether on the facts of the case, conviction of Abdul Hayee was rightly altered by the High Court, as aforesaid. And leave having been granted in that case, it was also granted in appeal No. 49 by Abdul Hayee to examine whether he was rightly, convicted. The prosecution case briefly is that Fazal Din (P. W. 9) and his two sons Muhammad Nawaz, (P. W. 10) and Ghulam Abbas deceased carried on business in village: Rodu Sultan in the area of police Station Garb Maharaja, District Jhang. Abdul Hayee who was a truck driver had sold 46 bags of basmati rice to Muhammad Nawaz P. W. at the rate of Rs. 46/‑ per maund. The price of the entire stock at that rate was paid to Abdul Hayee. On 24‑9.1968 at about 7:30 a.m. Abdul Hayee and his brother Muhammad Younis (the acquitted accused) came to the shop of Fazal Din and asked Muhammad Nawaz P. W. that since he had sold the rice at Rs. 66 per maund and thereby made a profit of Rs. 20 pet maund, he should pay an Additional um of Rs. 1600 over and above the amount already paid and thus share' urge profit that Muhammad Nawaz had been able to make out of the aforesaid deal in rice. Ghulam Abbas deceased was also present at the shop. Muhammad Nawaz declined to accede to the demand of Abdul Hayee. This led to an exchange of hot words followed by abuses and scuffle between Abdul Hayee and his brother on the one hand and Muhammad Nawaz P. W. and Ghulam Abbas deceased on the other. While the parties were altercating Abdul Hayee went to his house at a short distance from the shop and brought chhuri (Exh. P. 1) with which he gave a blow to Muhammad Nawaz on the left side of his back. As Ghulam Abbas deceased advanced to rescue his brother. Abdul Hayee also gave him a thrust with chhuri in the chest on the left side as a, result Ghulam Abbas fell down. The deceased's father, Fazal Din P. W. who had arrived in the meantime, wrested the chhuri from Abdul Hayee and in the process, the former's left index finger was injured. Abdul Hayee and his brother Younis then left the scene and went towards their house. Ghulam. Abbas died at the spot. F. I. R. was lodged by Fazal Din at P. S. Garb Maharaja at the distance of about 2: miles from Rodu Rultan. He entrused the chhuri to his son Muhammad Nawaz who remained with the dead body. The incident was also witnessed by Muhammad Ramzan P. W. 11, Camel driver, who had come to the shop of the deceased. According to the autopsy on the body of the deceased, he suffered a stab wound 2 x 1" chest cavity deep on the left side of the chest. On dissection the 4th left rib was cut. Left pleura was also cut and the lung was also cut under it. This injury in the opinion of the doctor was sufficient to cause the death of a person in the ordinary course. Abdul Hayee did not make any statement before the Enquiry Magistrate. Before the trial Court he, however, made the following statement :‑ "The Police somehow got the information about smuggled rice in the house of Muhammad Nawaz P. W., Fazal Din P. W. and Ghula Abbas deceased. They raided their premises. They had to pa Rs. 1500 as hush money. On the day of occurrence the account was being rendered. They deducted the sum of Rs. 1500 from my share. I protested that it was none of my business to pay the hush money. I had delivered the rice intact to them. They should pay the hush money from their part of the profit. They were enraged on this and felled me down on my back in the street. Muhammad Nawaz P. W. and Ghulam Abbas deceased rode on my stomach and laid themselves on my body to throttle me. Ins the meantime alarm was raised. People rushed from the neighbouring houses. The P. Ws. and the deceased dealt in hide and leather. Some one picked up the chhuri from their shop and gave them injuries on their backs to rescue me." However, he produced no defence in support of the above version. The trial Court and the High Court had no hesitation to reject the version and relying on the evidence of Fazal Din, Muhammad. Nawaz and Muhammad Ramzan and the corroborative evidence in the case which included injuries on the persona of the appellant, Fazal Din and Muhammad Nawaz P. W. and the production of blood stained chhuri (Exh. P. 1). accepted the prosecution version as to bow and why the incident load taken place, From the evidence of the doctor, the trial Court found the appellant guilty of capital murder in additions to his conviction and sentence under sec tion 324, P. P. C. for having caused simple stab injury to Muhammad Nawaz, The learned Judges in the High Court, however, took the view that the murder was not premeditated and was caused in the course of suffle between the parties owing to the difference arising in the business deal. They were further of the view that chhuri (Exh. P. 1) wielded by Abdul Hayee was "an ordinary kitchen chhuri and that it is very likely that the appellant picked up the chhuri from the kitchen "all of a sudden" and in the heat of passion rushed back to the spot. This, in the opinion of the learned Judges brought the case clearly within the fourth exception to section 300, P. P. C. Mr. Jamil Hussain Rizvi, Advocate, appearing in support of appeal No. 48 assailed the above conclusion of the learned Judges of the High Court. He submitted that having accepted the ocular account given by the three eye‑witnesses one of whom was absolutely independent, there was no scope for invoking the fourth exception to section 300, P. P. C. in favour of Abdul Hayee so as to reduce his criminal liability for the killing of Ghulam Abbas. Learned counsel particularly referred to that part of the prosecution evidence which had been accepted by the Courts without any reservation that in the course of the scuffle Abdul Hayee went to his house to fetch the chhuri and as he darted back, he plunged it in the back of Muhammad Nawaz and when the deceased tried to rescue him, Abdul Hayee also stabbed him on the left side of his chest with such force that it cut his rib, pleura and lung underneath. This according to the learned counsel clearly demonstrates his intent to kill. Learned counsel also questions the observations of learned Judges that Abdul Hayee brought what was an ordinary kitchen chhuri. He referred to the sketch of chhuri on the record which showed that its blade was 7 in length and judged by any standard it was a formidale weapon particularly against an unarmed victim. In my opinion, there is substance in the argument. The fourth exception upon which the learned Judges based themselves reads :‑ "Culpable homicide is not murder if it is committed without premedita tion in a sudden fight in the beat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." It is true that the quarrel had originated over a difference arising in a business deal which bad developed into exchange of abuses and altercation in which both the parties initially participated on level terms and suffered some abrasions of trivial nature. Until then there was no pre‑arrangement or premeditation for killing, both parties equally being unarmed. The all important fact, however, supervened in the course of the transaction which radically aggravated the criminality of Abdul Hayee is that, having hurried to his house, be rushed back with the chhuri and immediately on his re appearance en the scene, he gave two thrusts first in the back of Muhammad Nawaz and then in the chest of the deceased as he tried to rescue his brother. Abdul Hayee's hurried errand to his house to fetch the chhuri cannot be explained on any reasonable hypothesis other than this that he wanted to attack Muhammad Nawaz and his brother who would not submit to his peremptory demand for the payment of Rs. 1,

600. The dispute no doubt originated from a business transaction, but Abdul Hayee wantonly wielded the formidable weapon to settle the score. Then the serious ness of the injury described by the doctor and its situs also demonstrates that thrust was made with full force and the weapon had penetrated deep into the chest cavity. Therefore, two of the main conditions for invoking the fourth exception to section 300 namely that the offender should have assaulted his victim without premeditation and without taking undue advantage are missing in the instant case. It would indeed be a traversity of facts to suggest that Abdul Hayee's errand to the house to arm himself with the deadly weapon was not intended to be used effectively against his adversaries. Further, it is not disputed that the deceased, his brother and father were all unarmed and until the appellant had returned to the scene with a chhuri the exchanges between the parties were even. Therefore, the two conditions referred to above are clearly missing in the instant case and I find it difficult to take out the instant case from the purview of section 302, P. P. C. as learned Judges in the High Court have done. The cases relied upon by the learned Judges to bring the case under the fourth exception are all distinguishable on facts. Mr. Bilal, learned counsel for Abdul Hayee on the other hand referred to the statement of Ramzan (P. W. 11) in his cross‑examination that both the parties were equally at fault. According to him when the complainant party abused Abdul Hayee and his brother Muhammad Younis, they were provoked and Muhammad Nawaz P. W. even grappled with Muhammad Younis accused. This may be a mitigating circumstance for the purpose of sentence but it can hardly be a factor in altering the nature of the evidence led and proved against Abdul Hayee which as rightly held by the learned trial Judge could have fallen in section. 302, P. P. C. As pointed out already in the beginning the exchange of abuses was mutual which was triggered by Abdul Hayee's peremptory demand for instant payment of Rs. 1600 to which he thought he was entitled and which the other side dare not refuse. On that view of the matter, therefore, I would accept Appeal No. 48, and restore the judgment of the learned trial Court convicting Abdul Hayee under section 302, P. P. C. However, having regard to the circumstances of the case, I would sentence him to life imprisonment and a fine of Rs. 2000 or in default of payment of fine to further rigorous imprisonment of two years. In the event of recovery of fine, the same shall be paid to the heirs of the deceased. The conviction of Abdul Hayee and sentence under section 324, P. P. C. for having caused injury to Muhammad Nawaz P. W. are also maintained. The sentences of imprisonment shall be concurrent. As a necessary consequence o the above, Appeal No. 49 is hereby dismissed . Appeal dismissed.