P (PLP)

MUHAMMAD JAN, J.‑--Jalal appellant was tried by the learned Sessions Judge, Sialkot, with Bahawal and Ali Muhammad, on a charge under section 302 read with section 34, Indian Penal Code. They were alleged to have made a concerted attack on Allah Ditta in village Garha Khurd on the, 13th April 1947. The relations between Allah Ditta and Jalal appear to have been strained. In the month of August 1946, Jalal accused had made an encroachment on the laud of Allah Ditta and in February or March 1947 Allah Ditta had stolen some wood belonging to Jalal. Bahawal accused is a cousin of Jalal and Ali Muhammad is his nephew. On the 13th April 1947, at about Chhawela Allah Ditta was returning from his field to his house when his buffalo strayed into the field of Ali Muhammad accused. Allah Ditta went after the buffalo to bring it out. Ali Muhammad abused Allah Ditta who, in return, abused Ali Muhammad. Thereupon Ali Muhammad's uncle Bahawal accused came with a pitch‑fork followed Jalal accused, who had a sickle. Bahawal struck Allah Ditta on the head with the pitchfork and Ali Muhammad struck him on the head with a dang. Jalal in flicted a blow with the sickle on the: back of Allah Ditta. The sickle pierced the chest cavity and came out in the front. Shah Muhammad, Rehmat; Nawab and LAI arrived and the accused disappeared. Allah Ditta was taken to the hospital where Dr. Abdur Rashid (P. W. 1), on examining him, found his condi tion to be serious and sent the ruqqa, Exh. P. F. to the Sub. Inspector of Police, Daska Police Station, telling him that Allah Ditta bad been stabbed with a sickle, that his condition was serious and that a Magistrate should be brought for recording his statement. This ruqqa forms the first information report in the case, and the dying declaration which was recorded by Ujagar Singh Sub‑Inspector, himself at 2‑30 p.m. on the 13th April 1947, is Exh. P. A. It contains the facts relating to the attack which have been set out above, and was recorded in the presence of Dr. Abdur Rashid, who has certified that the deponent was in full possession of his senses. This statement was recorded about two hours after the arrival of Allah Ditta in the hospital. The Tehsildar, Daska, was not free that day and made a report (Ex. P. H.) that he was unable to come for recording the statement. Allah Ditta died about half an hour after midnight of 13th April 1947. Dr. Vidya Bhushan (P. W. 3) performed the post‑mortem examination on the body of Allah Ditta on the 14th April 1947 shortly after midday. He found the following injuries:‑‑

1. A incised wound " x " penetrating into the back of left abdomen, going right through to the front on the right through to the front on the right side:

2. A group of three superficial linear cuts on the left side of the head. On dissection the wall of the abdomen was found to have been pierced. The peritoneum was cut in five places under injury No. 1 and the mesentery at two places. Death in the opinion of the doctor was due to shock and haemorrhage as a result of destruction of the mesenteric blood vessels and de scending colon of the large intestines in consequence of injury No. 1 inflicted on the abdomen with some long bladed sharp weapon like a sickle. About one foot of the blade must have penetrated the body. This injury was individually sufficient to cause death, in the ordinary course of nature. Shah Muhammad, Rehmat and Nawab were produced as eye- witnesses in the case. The houses of Rehmat and Nawab appeared to be at some little distance from the scene of occur rence and the learned Sessions judge was of the opinion that they may not have reached in time to see the blows being actually struck. He, however, relied upon the evidence of Shah Muhammad and the dying declaration. No pre‑arranged plan to kill the deceased was proved and section 34, Indian Penal Code, was not applied. Bahawal was convicted under section 323, Indian Penal Code, for inflicting a simple injury with a blunt weapon on the head of the deceased. As he had been in custody for more than eight months, he was sentenced to im prisonment till the rising of the Court. Ali Muhammad was acquitted because there was no mark of the injury alleged to have been inflicted by him with a dang. Jalal was held guilty of murder, convicted under section 302, Indian Penal Code, and sentenced to transportation for life; because he had struck only one blow, and the crime did 'not appear to have been premedi tated. Jalal has appealed, and the only point urged on his behalf before us is that the injury on the deceased was indicted in a sudden quarrel on account of the straying of the, deceased's buffalo into the field of Ali Mohammad. The offence, according to the learned counsel for the appellant, was culpable homicide not amounting to murder. Exception (4) to section 300, Indian Penal Code, says that 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 of unusual manner. The offence in this case can be called unpremeditated, although there was some ill‑will between the parties, and it can also be said to have been committed in a sudden quarrel, but the attack by three assailants on a single‑handed unarmed victim in which one of the assailants struck the victim. It a sharp‑edged weapon which went right through his body and caused his death was cruel and unusual in the circumstances of this case. Moreover the victim had done nothing which can be said to have constituted a sudden fight. It was a case of pure and simple one‑sided attack, on account of a very petty quarrel. Exception (4) is, therefore, not applicable, in my opinion; I would main tain the conviction of the appellant under section 302, Indian Penal Code and dismiss his appeal. MUHAMMAD MUNIR, A. C. J.‑

I agree. A. H. Appeal dismissed.