1985 PLP 1397 (SCMR)

8. The autopsy performed on the dead body of Ashfaq deceased showed that he had suffered the following injuries:‑

(1) Stitched incised wound l c.m. in length over right axilla. (2) Stitched incised wound 7 c.m. in length over right lower outer chest. (3) Stab wound 1 c.m. x c.m. x depth not probed over right lower front abdomen. (4) Stitched incised wound 7 c.m. in length over back of right elbow and upper right forearm. (5) Stitched incised (Laparotomy) wound 22 c.m. in length over right side of abdomen close to midline. (6) Stitched incised wound 8 c.m. in length over right side of med abdomen joining at an angle with injury No. 5 thus making the shape of 'Y'. (7) Venesection wound over right ankle. (8) Abrasion 3 c.m. x 1/2 c.m. x over front left knee. Injury No. 2 was sufficient to cause death in the ordinary course of nature through shock and haemorrhage.

9. Muhammad Afzal, one of the appellant, who also bore some injuries on his body, was examined on the 26th September, 1976 and the following injuries were fond on his person:‑ (1) Scabbed abrasion 2 c.m. x 1 c.m. over left cheek. (2) Laceration l c.m. x c.m. over left parieto‑temporal area of head. The injuries were simple in nature and had been caused with some blunt weapon or object about 48 hours before the examination.

10. The defence of the appellants is contained in the statement made by Muhammad Sarwar appellant under section 342 of the Criminal Procedure Code, which is reproduced below in the verbatim:‑ "My brothers Anwar and Afzal have nothing to do with this occurrence. On 24‑9‑1978, I, during recess, left Bata Shoe Company at 12‑30 p.m. and went home to take my meals. Arshad complained to me that he had been beaten by Ishfaq mercilessly. After taking my meals 1 thought it proper to make a complaint to Siddiq Ali deceased about the conduct of Ishfaq. I went to the Dera of Siddiq Ali, I, in polite manner, complained that it was not proper for Ishfaq to maltreat my younger brother. On this Siddiq Ali who was a goonda type person flew into rage and started abusing me and remarked that I was only a Dhobi while he was a person of high caste and a person from low caste. At this I retaliated by abusing Siddiq Ali deceased. Siddiq Ali picked up his licensed pistol from his care which was lying there. And he wanted to fire at that time. I, in order to save myself caused two, three injuries with my knife to Siddiq Ali. At this Siddiq fell down but Ishfaq came there from the nearby room and picked up the pistol of his father and tried to fire at me upon which I could not do anything except to cause injuries to Ishfaq with my knife. I gave two injuries to Ishfaq in order to save my life. If I had not acted in self‑defence, I would have been killed by Siddiq Ali and his son Ishfaq as both of them were of a goonda type. Anwar and Afzal, my brothers and co‑accused, were not present there at the place of occurrence and have been falsely implicated in this case. I caused injuries with my knife and did not possess any dagger as the prosecution case." The defence plea was rejected by both the Courts below and the appellants convicted and sentenced, as mentioned above.

11. Before us, Mr. Aftab Farrukh, learned counsel for the appellants did not seriously challenge the findings of the learned Courts below about their participation in the incident, but merely addressed us on the question of sentence. According to him the earlier incident between the children of the parties constituted such a provocation as took the offence out of the mischief of section 302, P.P.C. and made it fall under section 304, Part I, P.P.C. or at any rate the appellants were entitled to the lesser sentence provided under section 302, P.P.C.

12. In this connection, learned counsel relied upon Nusrat and others v. The State P L D 1976 S C 18, where it was held that in an occurrence, wherein death was caused within one‑half to one hour of the incident in which a relative of the accused was severely belaboured by the deceased, the plea of grave and sudden provocation would be available. In this case, the conviction under section 302/149, P.P.C. was substituted by a conviction under section 304, Part‑I read with section 149, P.P.C. and sentence of ten years' R.I. was on each of the appellants.

13. We have perused the judgment in the case of Nusrat and others v. The State and find that the facts of the case are distinguishable. The learned Judges found that the complainant party had indulged in an act of high‑handedness which was accompanied by the infliction of serious injuries on one Noora which was such a nature as to cause intense provocation not only to Noora but also to his relatives, who were the appellants in the case. In that case, the complainant party was attacked while returning to their well and as the retaliation took place within half an hour of the earlier incident the plea of grave ant sudden provocation was accepted in these circumstances. In the present case there was a quarrel between two school boys in which slaps were given by Arshad to Shahzad, the brother of the appellants and on being informed of this incident the appellants armed themselves with lethal weapons, went to the Dera of the deceased which is about half a mile from their residence and committed the murder of Ishfaq, the brother of Arshad and his father. We do not think that few slaps given to the brother of the appellants can be considered to be such intense provocation which are calculated in the ordinary case of human conduct to cause loss of control to such an extent that murders can be committed by way of retaliation.

14. Mr. Aftab Farrukh then relied upon Sikandar v. State P L D 1966 S C 555, in which the act of violence was preceded by a quarrel which was not provoked but arose in a natural fashion and continued long enough to become a hot affair on both sides and in these circum stances the lesser sentence was considered to be more appropriate in the case. In this case it was observed:‑ "But the fact that, there was a sudden quarrel followed by a '/` sudden fight cannot be ignored, in the manner of Courts below, as an element having effect to mitigate the offence in relation to the sentence. A sudden quarrel imports provocation on both sides, and unless it is artificially raised as an excuse for making a pre‑determined fatal attack, the responsibility for the provocation and the raising of tempers, which necessarily follows a quarrel is, under the law, to be shared by the parties equally. When the quarrel is followed by a direct clash, the Courts cannot fail, as they have done in this case, to take note of the fact that thereby a great heat is imported into the affair. A crime committed in hot blood, for the raising of which the victim is equally responsible with the 'offender, is not be visited with the same punishment that the law reserves for deliberate offences of the same kind, committed in the cold blood, that is with malice aforethought. That is the fault which we find in the determination by the Courts below of the sentence appropriate to the crime of Sikandar. They should have given effect to the circumstance that both parties were in a state of heat through a quarrel for which both were responsible at the time when the fatal blow was struck by one of the parties. Allowing this mitigating circumstance, we accept this appeal to the extent that we reduce the sentence of Sikander to transportation for life." the facts of this case too are distinguishable. In the present case the quarrel between the boys had ended and the action of the appellants vas a one‑sided action and not an act done, following a quarrel for which both the parties were responsible and when the fatal blow was struck by one of the parties both were still in a state of heat. No mitigating circumstance for reduction of the sentence of Muhammad Sarwar and Muhammad Anwar appellants, therefore, exists in the circumstances of this case.

15. So far as Muhammad Afzal is concerned, he has already been given the lesser sentence in view of his young age and, the fact that he might have acted under the influence of his elder brothers and also because the injury caused by him on the shoulder of Muhammad Siddiq Ali deceased was not fatal. No ground for interfering with his conviction and sentence is, therefore, called for; although we would direct that while computing the sentence of life imprisonment he has to undergo, he shall be given the benefit of the provisions of section 382‑B, Cr.P.C.

16. The result is that no case for interference has been made out. This appeal must, therefore, fail and is dismissed hereby. M.I. Appeal dismissed.