P L D 1964 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑Ghulam Sadiq (30), Ghulam Farid (27), and Ajoon (37), sons of Sahib Khan, of village Shah Dher, Police Station Hazro, were jointly tried under section 302/34 P. P. C. by Choudhry Muhammad Anwar Additional Sessions Judge, Campbellpur. Ghulam Sadiq and Ghulam Farid were sentenced to transportation for life and a fine of Rs. 100, or in default six months' further rigorous imprisonment each under section 302/34 P. P. C., while Ajoon Khan was acquitted.

2. The accused were tried for having committed the murder of their first cousin, Bazi Khan (20), son of Mahboob Khan. The above‑named two convicts have preferred a joint appeal (Cr. A. No. 59 of 1963) against their convictions and sentences, while Muhammad Ashraf, brother of Bazi Khan deceased, filed revision petition No. 93 of 1953, for the enhancement or the sentences of the aforesaid convicts to one for death. This judgment, therefore, will cover the appeal and the revision petition both.

3. My learned brother Khan Faizullah Khan, J. recorded the main judgment in this case, wherein he ordered for the acquittal of both the appellants. I respectfully agree with his order regarding Ghulam Sadiq appellant, and also with the reasons he has given for his acquittal. I regret that I respectfully disagree with my learned brother with his order of acquittal in favour of Ghulam Farid appellant for the reasons that will be given hereinafter in this judgment. Since both of us are in agreement with respect to Ghulam Sadiq appellant, therefore, the judgment with respect to him will be announced at the earliest possible date and ha, in consequence thereof, should be set at liberty at once. With respect to Ghulam Farid appellant, the case will be referred to a third Judge for his opinion, as is required under section 312, Criminal Procedure Code.

4. The facts of this case are briefly as under:-- The two appellants are full brothers inter se, Ajoon Khan, the acquitted accused, is their consanguine brother. They are the sons of Sahib Khan, brother of Mahboob Khan (P. W. 11), the father of the deceased. On the first of March 1962, Bazi Khan deceased, accompanied by his father, Mahboob Khan (P. W. 11), had gone to the mosque, known as Phiki to offer their taravi prayers. The appellants and Ajoon Khan, their consanguine brother, too had gone to the same mosque for the same purpose. Bazi Khan deceased, while passing by Ghulam Farid, happened to give a push with his shoulder to Ghulam Farid, who felt offended and remarked that "he had become too proud". Harsh words were exchanged between them, but nothing serious happened between them at that time. After having said their taravi prayers, the three accused came out of the mosque, while Mahboob Khan (P. W. 11) and his son Bazi Khan deceased remained busy in offering the nawafal prayers. After having offered the nawafal prayers they emerged out of the mosque, and when they had hardly traversed a few paces towards the north, they were waylaid by the appellants, who were armed with churris, and Ajoon Khan, the acquitted accused, with a stick. Ajoon Khan raised a stick with a view to strike the deceased, but he warded off the blow on his hand and also succeeded in catching hold of the stick, and depriv ing Ajoon Khan of it. The two appellants then stabbed the deceased three or four times. Mahboob Khan (P. W. 11) raised an alarm 'which attracted Fazal Dad (P. W. 13), Abdul Qayum (P. W. 14), Miskin (P. W. 15), and Muhammad Jan (P. W. 16) From the mosque, and Muhammad Ayub (P. W. 12) from his field, situated a few paces away from the scene of the occurrence on the west o1 the mosque, where he was answering the call of nature. Abdul Qayum P. W. caught hold of Ghulam Farid and asked Miskin (P. W. 15) to catch him so that he should not do any further harm. In his efforts to disengage Ghulam Farid accused from Bazi Khan deceased, Abdul Qayum received two cuts on his shirt Exh. P. 2 on its front side. Bazi Khan deceased; as a result of the injuries he sustained at the hands of the appellants, fell down on the thorny hedge, from where he was removed by Abdul Qayum P. W. to a nearby dunghill. When Bazi Khan was placed by Abdul Qayum on the dunghill, Ajoon Khan, the acquit ted accused exhorted the appellants to kill the deceased so that he should not be able to charge them. Ghulam Sadiq appellant then inflicted two stab injuries, one in the right side of the chest, and the other in the left side of the chest of the deceased. Ajoon Khan thereafter picked up a stick, which was lying on the ground, and then all the three accused left the spot. Bazi Khan was carried on a cot to Police Station Hazro, but he died on the way.

5. Mahboob Khan (P. W. 11) with the dead body of his deceased son reached the Police Station at 10‑15 p.m., where he made the First Information Report Exh. P. A. which was recorded by Raja Muhammad Roshan S. H. O. (P. W. 17). In this first information 'report, Mahboob Khan has narrated almost the same story as has been given above. He had, however, not mentioned the names of Muhammad Ayub and Fazal Dad P. Ws. to have been attracted to the spot, and their having witnessed the occurrence.

6. The motive for the offence which was stated at the trial was that in the year 1948, Shazada, maternal uncle of the accused, had lodged a report under section 324 P. P. C. against Mahboob Khan (P. W. 11) and his son, Ashraf but the matter was ultimately compromised. Furthermore Mahboob Khan had mort gaged a piece of land with Ajoon Khan, which was redeemed by Mahboob Khan, about 25 days prior to the occurrence, and also got its possession. The three accused and their father demolished a portion of the joint boundary of the mortgaged land and included that part in their own land, but the matter was also compromised on the intervention of Fazal Dad and Rasool Khan, the collaterals of the parties.

7. During the autopsy the deceased was found to have the following injuries on external examination:- (1) An oblique penetrating incised wound, " x ", on the front of the left side of the chest, in the third inter costal space, its lower end being 1" above and outer inner to the nipple. It had gone into the left auricle of the heart after having cut all the intervening tissues from the skin to the heart. The third rib had also been cut and fractured. The upper lobe of the left lung had been pierced through about " internal to its inner border of the lung, the wound of entry into the lung being " x ", and also its exit wound. The wound of the entry into the heart was " x ", and the pleural cavity of the left side and the pericardial sac were full of extra‑vassacated blood. (2) An oblique incised wound, 1 " x ", on the right side of the chest in the second space near the junction of the cartilage with the sternum, its inner end was touching the middle line of the chest, and it was bone deep on its inner half, while it was muscle deep on its outer half. The muscles were cut. (3) A transversely directed skin deep incised wound, 1/3" x ", in the right fifth intercostal space on the front of the chest, its inner end touching the right border of the chest bone. (4) An oblique incised wound, 1 " x ", skin deep, on the right shoulder over its upper and frontal aspects. (5) An oblique muscle deep incised wound, 1 " x ", on the inner side of the middle part of the right arm. After having cut the muscles it had traversed backward for a distance of 1" and had made an exit wound of " x ", on the back of the right arm almost at the same level. A bridge of skin of 1/3" x 1/3" was separating the entry wound from the exit wound. (6) An almost vertical bone deep incised wound, " x ", on the upper part of the back of the chest, running over the middle line at the level of the first dorsal spine. (7) An oblique skin deep incised wound, " x ", on the back of the left thigh. (8) An abrasion, " x ", on the back of the left elbow. (9) An abrasion, " x ", on the back of the left wrist. (10) An abrasion, 1/3" x ", on the front of the left knee near the upper border of the knee‑cap. (11) A scratch, " x 1/3", on the front of the left elbow. Internal Examination: The left pleura was found injured and its cavity con tained blood. The left lung was injured. The pericardium and the left auricle were injured. Death was due to shock and haemorrhage. Injury No. 1 was fatal in the ordinary course of nature. Injuries Nos, 2 to 11 were simple, while No. 1 was dangerous to life. Injuries 1 to 7 were caused by a sharp‑edged and pointed weapon, while the rest (8 to 11) were caused by blunt weapon.

8. Ghulam Farid appellant was also examined on the same day and he was found to bear the following injuries:- (1) A swollen bruise, 2 " x 1 ", on the upper part of the right fore arm on its inner and frontal aspect, and was obliquely directed. (2) A swollen bruise, 1 " x 1 ", on the outer side of the middle part of the right arm. Both the injuries were simple and were caused by a blunt weapon such as a lathi.

9. The prosecution produced Mahboob Khan (P. W. 11), father of the deceased, Muhammad Ayub (P. W. 12), sister's husband of the deceased, Fazal Dad (P. W. 13), Muhammad Jan (P. W. 16), Abdul Qayum (P. W. 14). and Miskin (P. W. 15) as eye‑witnesses of the occurrence. The learned trial Judge dis believed Mahboob Khan (P. W. 11), Muhammad Ayub (P. W. 12), Fazal Dad (P. W. 13), and Muhammad Jan (P. W. 16) as untrustworthy, and further held that none of them was present on the spot at the time of the occurrence. The reasons he gave for disbelieving them were quite cogent and reasonable. I, therefore, fully concur with my learned brother Khan Faizullah Khan J. when he found that the learned trial Judge was perfectly in disbelieving these witnesses, I, therefore, need not enter into the detailed appraisal of the grounds for disbelieving these witnesses. The learned trial Judge believed Abdul Qayum (P. W. 14) and Miskin (P. W. 15) on the ground that they were disinterested witnesses, and convicted both the appellants on their testimony. These two witnesses were not mentioned in the F. I. R. and they were also not quite disinterested witnesses, held by the learned trial Judge. My learned brother had given quite cogent reasons which pointed to the fact that they were not disinterested witnesses. Considering these facts, I have no hesitation in concurring with my learned brother that these two witnesses were also not reliable, firstly, for the reason that their names were not mentioned in the F. I. R. by Mahboob Khan (P. W. 11), the father of the deceased, who himself was alleged to be an eye witness of the occurrence, and therefore, he could not possibly have missed to notice these two persons to be present at the spot, and had witnessed it, and if it was so, he could not have omitted to mention their names in the F. I. R. At least the omission of their names from the F. I. R. casts a grave doubt on their presence on the spot at the time of the occurrence, and secondly, these two witnesses were disbelieved by the trial Judge as against Ajoon Khan, the acquitted accused. The trial Judge had in express terms found them to be not reliable witnesses against the acquitted accused. It is now well settled that if a witness has been disbelieved with respect to one accused, then in law, he) should not be believed with respect to other accused. This rule is based on the dictum that the veracity of a witness is indivisible, and when it was found that he had not stated the truth with respect to one accused person, he could not be said to have stated the truth with respect to the others, unless his statement was corroborated by other independent evidence or confirmatory circumstance. In the instant case, the statements of these two witnesses are not corroborated by any corroborative evidence or confirmatory circumstance as against Ghulam Sadiq and Ghulam Farid appellants. No doubt Ghulam Farid made a certain statement admitting to have exchanged blows with the deceased at the time of the occurrence, but his story is quite different from the one which was advanced by the prosecution, and which was supported in minutest details by these two witnesses. These two witnesses, therefore, should not be believed on this ground as well.

10. Sadiq accused pleaded that he was not present on the spot at the time of the occurrence, and he was falsely charged. On the statements of these two witnesses, therefore, he could not have been rightly convicted of such a heinous offence. I, therefore, find him not guilty and order that he be acquitted and set at liberty at once.

11. This brings me to the question if the case against Ghulam Farid was proved to the hilt or not. Having disbelieved all the ocular evidence available in this case, I am only left with his own statement, which he had made at the trial in reply to the question as to how he sustained the injuries found present on his person on medical examination. He made the following statement in reply: "I was proceeding towards the north along the footpath behind the mosque at khuftanwela. Bazi Khan deceased was coming towards the south from the opposite direction. I had a torch ‑with me. When I threw the light of the torch ahead, Bazi Khan took exception to it, because of the fact that the dazzle of the light had fallen into his eyes. He gave me an abuse. I also returned him in the same coin. He had a stick in his hand with which he inflicted injuries on me. I also had a knife with me with which I inflicted injuries on Bazi Khan in self‑defence. My brothers Sadiq and Ajoon were not there." This part of the statement of Ghulam Farid is the only evidence on the record which points out that the deceased met his end as a result of the stab injuries he sustained at the hands of Ghulam Farid appellant. No doubt there are authorities for the view (one of them having beer cited by my learned brother as P. L. D. 1952 F C 1), that when there is no other evidence, then the admission contained in the statement of the accused on which the conviction of the accused could be based, should be accepted in its entirety or rejected in its entirety. I am in respectful agree ment with this proposition. The statement of facts, made by an accused person, when it is the only evidence in proof of his guilt, it should be accepted in its entirety or rejected in its entirety, but the part which is not deposition of facts but is merely his plea such as plea of self‑defence‑f‑and which is a question of law, is required to be tested with the facts stated by the accused person, and a Court cannot abdicate its duty by accepting that plea straightaway without applying its mind if the statement of facts does or does not bear out his plea, and if the Court does not do so, it relegates its function to the accused himself and empowers him to sit on judgment of his own acts.

12. I am at a great disadvantage in this respect that my learned brother in his judgment had not expressly found if this was a case of a sudden attack by the deceased on the appellant, or this was a case of a sudden fight, which took place as a result of a sudden quarrel, and in the heat of the passion both Ghulam Farid and the deceased exchanged blows which resulted in the deceased's death. if the deceased had launched an attack suddenly on the appellant, then in my view, he had a right of private defence of his person. Even in that event, it had to be considered whether he had a full right of defence of his person, so as to have entitled him to kill the deceased, as he had only sustained two simple hurts before he came to grips with him, and started stabbing him. This question will be dealt with at a later stage. What one could conclude from the tenor of his judgment was that he was of the view that the deceased was killed in the sudden fight, and since the deceased opened the attack the appellant had full right of defence of his person. This was a case of a sudden quarrel. If I have rightly understood his finding then I am in full agreement with him that the deceased was killed in the sudden fight, but with great respect, I cannot persuade himself to concur with him that in a sudden fight with the deceased the appellant had a right, in full or in part, to kill, in defence of his person. The enmity which was cited as the motive was not such in pursuance of which the parties should have gone to the spot with a preparation or pre‑arrangement to kill each other. As has been stated by Ghulam Farid himself, the deceased and he met near the mosque merely by chance. Ghulam Farid threw the light of the torch ahead which dazzled the eyes of the deceased. The deceased took exception to it and abused him. The appellant returned the abuse. The deceased, according to the appellant's statement, struck him with a stick and inflicted the two simple injuries found present on his person. The appellant had a knife with which he inflicted injuries on Bazi Khan deceased. Ghulam Farid accused is aged 27 years, while Bazi Khan deceased was aged

20. This suggests that Ghulam Farid was in the prime of his youth and was physically stronger than the deceased, who was merely a raw youth of hardly 20 years of age. The deceased was armed with a stick. The accused was armed with a knife. If premeditation could by any stretch of imagina tion be inferred, then, Ghulam Farid could reasonably be said to have come to the spot with pre‑arrangement and pre meditation to fight. Since the law requires that the benefit of all possible doubts be given to the accused person, therefore, I will not be prepared to go to the extent that Ghulam Farid had gone there with pre‑arrangement or pre‑meditation to attack the deceased. The reasonable and the most beneficial interpretation of the statement of Ghulam Farid appellant would be, that by lightening the torch he by chance cast the light into the eyes of the deceased, the latter got annoyed and abused Ghulam Farid appellant, who paid him in the same coin. The deceased lost self‑control and in the heat of passion gave a couple of stick blows to Ghulam Farid which caused him only two simple hurts, and then the appellant came into grips with the deceased and gave him no less than sever knife blows on very vital parts of the body, as a result of which he could not survive, for long. It is, therefore, in my view, a clear case of a sudden fight. In such a case, therefore, exception 4 to section 300 P. P. C. would have clearly applied, if Ghulam Farid appellant had not acted in unusual and cruel manner, or had not taken undue advantage in the fight. Exception 4 runs as under:- "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 or unusual manner. Explanation.‑It is immaterial in such cases which party offers provocation or commits the first assault." No doubt according to the statement of Ghulam Farid appellant it was the deceased who had opened the attack, but once it is found that that attack was the result of a sudden quarrel, then, according to Explanation to Exception 4 of section 300 P. P. C. It is immaterial which party offered the provocation or committed the first assault. The plea of self‑defence, therefore, raised by Ghulam Farid appellant in his aforesaid statement, is not borne out by the statement of facts, which he had made himself with respect to the occurrence.

13. My learned brother made a great research and also had taken great pains in retrieving the relevant case‑law on the point. He was able to find out Mahanarain v. Emperor Muhammad Shafiq v. The State, Jumman and others v. The State of Punjab and Muhammad Aslam v. The Crown. He cited these decisions in his judgment, although none of them was referred at the Bar. In all these cases it was found that when there was a sudden fight, as a result of a sudden quarrel, and without the offender's having taken undue advantage or acted in a cruel or unusual manner, the offence would fall under section 304 (Part I) or Part II, P. P. C., and not that the accused was entitled to full defence of his person. The facts of the case reported in Mahandi v. Emperor, in which the accused was given the benefit of defence of person, are one of a sudden attack, and not of a sudden fight, and therefore, it was not applicable to the circumstances of the present case. It will be pertinent to narrate here briefly the facts of that case. Musammat Karimo went to live with his sister, Mst. Nawab Bibi, who was the wife of Mahandi accused. It was suspected that Mst. Karimo was carrying on a liaison with Mahundi. She was, therefore, removed from Mahandi's house and ultimately came to live with Dina, her uncle. Some time after this Mahandi and Siraj, while going to a certain railway station, were walking along the bank of a minor canal which passed through the village in which Mst. Karimo was living with her uncle, Dina. Mahandi was seen talking to Mst. Karimo while she was drawing water at the well. Mst. Kanon, another woman, who was also present on the well, raised an alarm, with tLe result that Dina, Nura, and Jhanda, and perhaps two others, came running with dangs towards the place where Mst. Karimo was. Dina jumped across the minor canal in order to get at Mahandi and Siraj, who were on the opposite bank, and Dina took the lead and was the first to aim a blow at Mahandi. This was followed by a free fight between Dina and Nura on one side and the two accused on the other. Dina received two injuries. One of these injuries was very serious while the other caused the fracture of the skull of which Dina had shortly afterwards died. Nura, the bench‑man of Dina, received four simple contusions. The accused Mahandi also received four injuries. One of the injuries received by Mahandi was a Bang blow behind his ear. Siraj received five injuries, three on the head, the fourth on the back and the filth on the cheek, involving one of the eyes

14. In the above circumstances it was held that it was not a case of a sudden fight, and was that of a sudden, premeditated attack carried out with great determination by Dina and his com panions, and the two accused, therefore, in defending them selves by returning the blows with the sticks or dangs had acted it: defence of their persons, and therefore, they had committed no offence. The facts of this case further point out that Dina and Isis four companions, after arming themselves from their houses, had rushed to the place where Mahandi and his sister‑in‑law were, talking to each other and then opened an attack. It is not a case of a fight that started on the spur of the moment in circumstances in which premeditation could not possibly be inferred on the part of any one of the parties. With great respect, therefore, I cannot agree with my learned brother Khan Faizullah Khan J., when he quoted this ruling to support his contention that in a sudden fight a combatant has got the right of defence of his person.

15. I wonder how in spite of such an extensive research my learned brother should have missed to discover the latest pronouncement of the Supreme Court of Pakistan Akhtar Hussain v. The State (P L D 1958 S C (Pak.) 251). In this judgment the Supreme Court has declared the law on the point very tersely in the following words:- "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 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 is immaterial which party offers tae provocation or commits the first assault". This pronouncement clinches the matter. It is immaterial if for the purposes of the present case the deceased opened the attack and gave two blows with a stick to Ghulam Farid appellant, and then the appellant had stabbed him. If the deceased had opened the attack in a sudden quarrel in the heat of passion, and the appellant had stabbed him, then it brought both of them on equal footing, and in such an event, the question of self‑defence becomes of academic interest, as the law does not give the killer the right of self‑defence by virtue of Explanation to Exception 4 to section 300 P. P. C.

16. My learned brother further tried to find out the meaning of the words "sudden fight" or "sudden quarrel". He has quoted the commentary of H. S. Gour. In the same commentary the word "sudden" has been defined as "without pre‑arrangement", and, "in an unexpected manner". If we look into the circumstances of the present occurrence that both parties met by chance, one of them lit the torch, which had thrown the dazzle into the eyes of the other, that they exchanged abuses, and then the deceased gave two stick blows to the appellant, which caused simple hurts, and then, the appellant stabbed him seven times with a knife, (besides the other minor blunt weapon injuries found on the person of the deceased, which might have been the result of a fall) then one would come to no other conclusion except the one that this occurrence was the result of a sudden quarrel developed into a sudden fight, in which both the parties were on the same footing, and were to be equally blamed. In such a case, no right of defence of person, under the law, was available to Ghulam Farid appellant.

17. My learned brother took great pains to dilate on the question that the defence of person and property provided in sections 96 to 103 P. P. C. were not circumscribed by limitation, and therefore, this right will whittle down if the Courts found that when the man had been killed in a sudden fight, the accused had no right of defence of person or property. I regret I cannot, with great respect, contribute to this view. It was not necessary fort the Legislature to have laid down the limitations and the excep tions to the right of defence of person and property provided either in sections 96 to 103 P. P. C. or in the same chapter in which these sections had occurred. Exceptions 1, 2 and 4 to section 300 P. P. C. are the part of the same Penal Code and they can also serve as limitations and exceptions to sections 96 to 103 P. P. C. when a certain person had been killed by another, it is the duty of the Court to find out if this act is covered by the provisions of the right of defence of property or person, as further regulated by the exceptions and limitations contained in Excep tions 1, 2 and 4 to section 300 P. P. C. I again refer to the commentary of M. S. Gour, especially to that portion which has been cited by my learned brother in his judgment, to show that Exception 4 should have been a part of Exception 1, and thus the offender would be guilty of the offence of culpable homicide not amounting to murder. The relevant portion of the citation is as follows:- "This exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is the absence of premeditation, but while in the one case there is the total deprivation of self -control, in this there is only that heat of passion which clouds men's sober reason and urges them to deeds which they could not otherwise do. There is provocation in this case as in the first exception, but the injury done is not the direct consequ ence of that provocation. In fact, the present exception deals with cases in which, notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. For a "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral pro vocation, nor in such cases could the whole blame be placed on one side, for if it is so the exception more applicable would then be Exception I. The position of combatants under this clause is, in short, this. There is no previous deliberation or determination to fight. A fight suddenly takes place for which both parties are more or less to blame. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it does. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. They are, therefore, both equally liable and the only points of discrimination that could arise in their case are (i) premedi tation, (ii) undue advantage, and (iii) cruelty. (The italicised is mine.)

18. Similarly, Exception 2 also places a limitation on the right of self‑defence or person or property of a citizen. Excep tion 2 provides that:- "Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of the defence without premeditation, and without any intention or doing more harm than is necessary for the purpose of such defence." In sections 96 to 103 P. P. C. it is not provided that when a person had a right to cause harm short of death, but he actually caused the death, what offence had he committed? Such an act, in my opinion, would fall under Exception

2. I need not dilate on this point further as it is very clear that sections 96 to 103 P. P. C. are not independent of the rest of the provisions of the Pakistan Penal Code, and they are dependent upon the other relevant provisions, and therefore, it will be ludicrous to hold that the application of the limitation provided in the Pakistan Penal Code to the applicability of sections 96 to 103 P. P. C. would be in any way whittling down the right of self‑defence. As a matter of fact, these limitations provided in different sections of the Pakistan Penal Code are intended to serve as exceptions to section 96 to 103 P. P. C. They, therefore, should be considered as part and parcel of the subject of defence of person and property, viz., to what extent a person can cause harm to the other in the exercise of right of defence of person or property.

19. This brings me to the question what offence Ghulam Farid appellant has committed in the light of his own statement, which is the only evidence of his having committed the assault on the deceased which resulted in his death. As mentioned above, the deceased was of 20 years of age, while Ghulam Farid was 27 years old at the time of the occurrence. Ghulam Farid, therefore, was of such age that he must be very robust and of stronger physique as compared with the deceased. It is obvious that it was Ghulam Farid appellant whose act of throwing the dazzle of the torch into the eyes of the deceased had created this awkward situation. The deceased abused the said appellant who paid him in the same coin, as a result of which the deceased struck the said appellant twice with a stick, which caused him mere simple hurts. After he was struck, the said appellant came to grips with the deceased, and therefore, being stronger of the two, he could have held him fast, and could have easily prevented him from giving further blows. At the utmost, in the heat of passion, he should have inflicted one or two blows immediately after he came to grips with him. In causing seven injuries with a knife and those two on vulnerable parts of the body, the said appellant un doubtedly took undue advantage or acted in a cruel or unusual manner. He also took undue advantage because of his being armed with a knife and, therefore, Exception 4 to section 300 P. P. C. would not apply and he has committed the offence of murder, punishable under section 302 P. P. C.

20. Assuming, without conceding, that the appellant had not acted in a cruel or unusual manner, and had not taken undue advantage, Exception 4 to section 300 would apply and even then, he was guilty under section 304 (Part I) P. P. C. The decisions cited by my learned brother, and which are referred in paragraph 13 of this judgment, support this view, as in a sudden fight none of the parties, in law, had a right of defence of person, Further assuming, without conceding, that the appellant had the right of the defence of his person, in spite of the fight being sudden, even then, his act could fall within Exception 2 to section 300 P. P. C., as he had exceeded the right of defence of person by inflicting seven stab injuries on vital parts of the body of the deceased, especially after his having come to grips, and having rendered the deceased incapable of doing him further harm. On this ground as well, he has committed an offence under section 304 (Part I) P. P. C.

21. As a result of the above, I find that the facts stated by Ghulam Farid appellant, in his statement of the trial, do not support his plea of self‑defence. On the other hand, the case also does not fall under Exception 4 to section 300 P. P. C. because the appellant has acted in a cruel and unusual manner, and has also taken undue advantage over the deceased. He has, therefore, clearly committed an offence punishable under section 302 P. P. C. His conviction under section 302 P. P. C. and his sentence are, therefore, upheld, and his appeal is dismissed.

22. In view of the murder having been committed in a sudden fight, the lesser penalty for the offence of murder was quite appropriate. There is, therefore, no substance in the revision petition for enhancement of sentence. It should, there fore, be dismissed.

23. The matter about the guilt and of what offence, or, otherwise, of Ghulam Farid appellant is referred to the third Judge, and it be laid before Mian Shakirullah Jan J. not later than the last week of October, 1963, for his opinion. SHAKIRULLAH JAN, J.‑Ghulam Farid, aged 27, Ajun Khan, aged 37, and Sadiq, aged 30, sons of Sahib Khan, residents of Shah Dher, Police Station Hazro, Tehsil and District Campbellpur, were tried under section 302/34, P. P. C. by Chaudhry Muhammad Anwar, Additional Sessions Judge, Campbellpur, for having committed the murder of Bazi Khan son of Mabboob Khan (P. W. 11) in furtherance of their common intention on 1st March 1962 at khufranwela. The learned Additional Sessions Judge acquitted Ajun Khan, and convicted Sadiq and Ghulam Farid under section 302/34 P. P. C. and sentenced them to transport ation for life and a fine of Rs. 100, or in default six months' rigorous imprisonment each, by his order dated 23rd January 1962. The two convicts have preferred a joint appeal against their convictions and sentence. Muhammad Ashraf, brother of Bazi Khan deceased, has filed a revision petition requesting for the enhancement of the sentences. Both the appeal and the, revision are being disposed of by this judgment.

2. Briefly the facts of the case as narrated at the trial are that Mahboob Khan (P. W. 11), who is the father of the deceased, is the real brother of the father of the appellants. It is alleged that in 1948, one Shazada, a son of the maternal uncle of the appellants, had made a report against Mahboob Khan (P. W. 11) and his son Muhammad Ashraf under section 324 P. P. C., true copy of which Exh. P. F. is on the file. A compromise was, how ever, effected between the parties, but Mahboob Khan and Sahib Khan did not reconcile at heart. A piece of land belonging to Mahboob Khan adjoining the land of the appellant was mort gaged by him with Ajun Khan acquitted accused. This land was redeemed by Mahboob Khan and he took its possession about 20‑25 days before the occurrence. The appellants, the acquitted accused and their father are said to have demolished a portion of the common embankment separating their field from the field of Mahboob Khan P. W. and encroached upon the demolished part of the embankment by adding it to their own field. On account of the demolition of the common embankment, a quarrel ensued between Mahboob Khan and his sons on one side, and Sahib Khan and his sons on the other, but Fazal Dad and Rasool Khan, close relatives of the two brothers, brought about a compromise between them.

3. On 1st March 1962, Mahboob Khan (P. W. 11) ac companied by Bazi Khan deceased went to the mosque known as "Phiki mosque" for offering taravi prayers. The two appellants and their consanguine brother Ajun Khan acquitted accused were also present in the mosque. While passing in the mosque, the shoulder of Bazi Khan deceased rubbed against the shoulder of Ghulam Farid appellant. This was resented by the latter, who is alleged to have remarked that the deceased had become too proud. Hot words were exchanged, but nothing serious happened at that time. After the performance of the taravi prayers, the two appellants and the acquitted accused left the mosque, while Mahboob Khan (P. W. 11) and Bazi Khan deceased remained behind and were offering nawafal prayers and after offering it, they left the mosque and had covered a distance of a few paces on their way towards the north when they saw the acquitted accused and the two appellants, out of whom Ghulam Farid and Sadiq appellants were armed with chhuris and Ajun Khan acquitted accused was carrying a stick. Ajun Khan acquitted accused is alleged to have opened the attack by raising his stick for striking the deceased, but the latter warded off the blow on his hand and also succeeded in snatching it from him. Ghulam Farid and Sadiq appellants dealt knife blows to the deceased. The alarm raised by Mahboob Khan (P. W. 11) attracted Muhammad Ayub (P. W. 12), Fazal Dad (P. W. 13), Abdul Qayum (P. W. 14), Miskin (P. W. 15) and Muhammad Jan (P. W. 16), who witnessed the occurrence. Abdul Qayum P. W. caught hold of Ghulam Farid appellant and handed him over to Miskin P. W. and during this struggle Abdul Qayum P. W. got two cuts on his shirt Exh. P. 2 on its front side. Miskin P. W. caught hold of Ghulam Farid appellant. Bazi Khan deceased fell down on the ground in a wounded condition. Abdul Qayum (P. W. 14) helped Bazi Khan deceased from that place and took him to a nearby heap of refuse lying towards the north of the mosque. When Bazi Khan was laid by Abdul Qayum near the heap of the refuse, Sadiq appellant dealt knife blows on the right and left sides of the chest of the deceased at the instance of Ajun Khan acquitted accused. Ajun Khan then picked up his stick which had fallen on the ground and then the appellants and the acquitted accused left the spot. Bazi Khan was placed in a wounded condition on a cot and was being taken to Police Station Hazro, which is at a distance of 2 miles from the spot, when he succumbed to his injuries on the way. In the Police Station, the report Exh. P. A. of Mahboob Khan (P. W. 11) was recorded on 1st March 1962 at 10‑15 p.m. by Raja Muhammad Roshan, S. H. O. (P. W. 17).

4. After recording the report, the S. H. O. prepared the injury sheet Exh. P. J. and inquest report Exh. P. K. and sent the dead body of the deceased to the mortuary. The S. H. O. left for the spot at 4‑30 a.m. on 2nd March 1963 reaching there at 5 a.m.

5. At the mortuary the post‑mortem examination on the dead body of the deceased was performed by Dr. Iqbal Ahmad Mirza (P. W. 1) on 1st March 1962 at 9‑30 a.m., who found the following injuries on external examination:- (1) An oblique penetrating incised wound, " x " on the front of left side of the chest in the third intercostal space, its lower end being 1" above and outer inner to the nipple. It had gone into the left auricle of the heart after having cut all the intervening tissues from the skin to the heart. The third rib had also been cut and fractured. The upper lobe of the left lung had been pierced through about I" internal to its inner border of the lung. The wound of the entry into the lung being " x " and also its exit wound. The wound of the entry into the heart being " x ", the pleural cavity of the left side and the pericardial sac were fully of extra‑vassacated blood. (2) An oblique incised wound, 1 " x ", on the right side of the chest in the second space near the junction of the cartilage with the sternum, its inner end touching the middle line of the chest, it was bone deep on its inner half, while it was muscle deep on its outer half. The muscles were cut. (3) A transversely directed skin deep incised wound 1/3" x " in the right fifth intercostal space on the front of the chest, its inner end touching the right border of the chest bone. (4) An oblique incised wound, 1 " x " x skin deep, on the right shoulder over its upper and frontal aspect. (5) An oblique muscle deep incised wound, 1 " x ", on the inner side of the middle part of the right arm after having cut the muscles it had traversed backward for a distance of 1" and had made an exit wound of " x " on the back of right arm almost at the same level. A bridge of skin of 1/3" x 1/3 was separating the entry wound from the exit wound. (6) An almost vertical bone deep incised wound, " x ", on the upper part of the back of the chest running over the middle line at the level of the first dorsal spine. (7) An oblique skin deep incised wound, " x ", on the back of the left thigh. (8) An abrasion, " x ", on the back of the left elbow. (9) An abrasion, " x ", on the back of the left wrist. (10) An abrasion, " x ", on the front of the left knee near the upper border of the knee‑cap. (11) A scratch, " x 1/3'', on the front of the left elbow. The internal examination revealed that the left pleura was injured and its cavity contained blood. The left lung was injured as described in the injuries. The pericardium was injured and its sac contained blood. The left auricle was injured. Death, in the opinion of the Doctor, was due to shock and haemorrhage result ing from the injuries to the left lung and heart through injury No.

1. Injury No. 1 was fatal in the ordinary course of nature. Injuries 2 to 11 were simple. Injuries Nos. 1 to 7 were caused by a sharp‑edged and pointed weapon, while the rest were caused by a blunt weapon. All the injuries were ante-mortem. Injuries Nos. 1 to 7 could be the result of a chhuri or a knife.

6. On 2nd March 1962, at 3 p.m., the same Doctor examined Ghulam Farid appellant and found the following injuries on his person:- (1) A swollen bruise, 2" x ", on the upper part of the right forearm on its inner and frontal aspect and was obliquely directed. (2) A swollen bruise, 1 " x 1", on the outer side of the middle part of the right arm. Both the injuries were simple and were caused by a blunt weapon.

7. The prosecution examined Mahboob Khan (P. W. 11), father of the deceased, Muhammad Ayub (P. W. 12), sister's husband of the deceased, Fazal Dad (P. W. 13), Abdul Qayum (P. W. 14) Miskin (P. W. 15) and Muhammad Jan (P. W. 16) as eye‑witnesses. The learned trial Judge disbelieved Mahboob Khan (P. W. 11), Muhammad Ayub (P. W. 12), Fazal Dad (P. W. 13) and Muhammad Jan (P. W. 16), as in his opinion none of them was present on the spot at the time of occurrence and I fully agree with my learned brother Faizullah Khan, J. (with whom my learned brother Muhammad Daud Khan, J. has concurred) who held that the learned trial Judge was perfectly right in disbelieving these witnesses. The learned trial Judge, however, convicted the two appellants on the testimony of Abdul Qayum (P. W. 14) and Miskin (P. W. 15), who in his opinion were disinterested witnesses. These two witnesses were also disbelieved by my learned brother Faizullah Khan, J. (with whom my learned brother Muhammad Daud Khan, J, has concurred), on the ground that they were not mentioned as eye witnesses by Mahboob Khan (P. W. 11) in his report Exh. P. A. who claimed himself to be an eye‑witness of the occurrence. The omission of these two P. Ws. from the F. I. R. Exh. P. A. clearly shows that they were not present on the spot. Furthermore, these witnesses were disbelieved by the learned trial Judge against the acquitted accused, and, therefore, their statements without corroboration by independent evidence cannot be accepted as a conclusive proof of the guilt of the appellants. There is no corroborative evidence available on the record against the two appellants, and so I agree with my learned brothers that these two witnesses are also not reliable and cannot be believed.

8. The two appellants when examined pleaded not guilty. Sadiq appellant stated that he was not present in the village at the time of occurrence and was falsely charged by the eye witnesses. He denied that he had absconded on the day follow ing the night of murder and stated that he was at his house on that day. My learned brothers Faizullah Khan and Muhammad Daud Khan, JJ. found Sadiq not guilty and acquitted him, because after having disbelieved the eye‑witnesses there was no evidence on the record to connect him with the offence.

9. My learned brother Faizullah Khan, J. has held that Ghulam Farid appellant is entitled to the complete right of self- defence which finding is based on the statement of Ghulam Farid appellant, and, therefore, he accepted his appeal, set aside his conviction and sentence and acquitted him. My learned brother Muhammad Daud Khan, J., has differed and his finding is that the accused is not entitled to the right of self‑defence, and further held that he is not entitled to the benefit of Exceptions 2 and 4 to section 300, P. P. C. On a difference of opinion between my two learned brothers, the case was referred to me.

10. Having disbelieved all the eye‑witnesses examined at the trial, the only evidence on the record is the statement of Ghulam Farid appellant, which he made at the trial. While explaining injuries found on his person, he stated as under:- "I was proceeding towards the north along the footpath behind the mosque at khuftanwela. Bazi Khan deceased was coming towards the south from the opposite direction. I had a torch with me. When I threw the light of the torch ahead Bazi Khan took exception to it because of the fact that the dazzle of the light had fallen into his eyes. He gave me an abuse. I also returned him in the same coin. He had a stick in his hand with which he inflicted injuries on me. I also had a knife with me with which I inflicted injuries on Bazi Khan in self‑defence. My brothers Sadiq and Ajun were not there."

11. The learned counsel for the appellant contended that apart from the statement of Ghulam Farid appellant, there was no material on the record to link him with the commission of the offence, and, therefore, his statement cannot be split up and a part of it used against him. We urged that an admission must be used either as a whole or rejected as a whole. In support of his contention, he relied upon Rahim Bakhsh v. Crown (P L D 1952 F C 1) where in last para at page 7, it was held that "if the conviction of the petitioner is to be based solely on his statement in Court, dated the 11th May 1949, it is obvious that this statement should be taken into consideration in its entirety".

12. I respectfully agree with the proposition of law propounded by the authority cited above, but the fact remains that in the instant case it is not the facts which are to be believed or disbelieved. It is really a question of the application of law to the facts of the case as stated by Ghulam Farid appellant. The right of self‑defence can only accrue to a person if he is attacked with premeditation and deliberation which is lacking in the present case.

13. There is a clear distinction between a sudden fight as contemplated by Exception 4 to section 300, P. P. C. and a sudden attack which is more often confused with the former. So far as the sudden fight is concerned to which Exception 4 to section 300, P. P. C. is applicable, it 9s always preceded by a quarrel and there is no element of premeditation or pre‑arrange ment involved in it and none of the parties have either come prepared to fight or willing to fight, but a fight is forced upon them by the circumstances in which they find themselves quit unexpectedly. In such a fight the question of the right of defence of person would not arise no matter who began the fight and gave the first blow because of Explanation to Exception 4 to section 30 P. P. C. "Exception 4.‑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 or unusual manner". Explanation.‑It is immaterial in such cases which party offers the provocation and commits the first assault".

14. The statement of the appellant shows that while proceed ing in the lane he flashed his torch at the deceased who coming from the opposite direction and dazzled his eyes which set the ball rolling as it was resented by the deceased who abused him and the accused returned the abuse. The deceased gave him two stick blows and the appellant then dealt him seven knife blows. The statement of the appellant clearly shows that it was a sudden fight. It is true that the deceased was the first to abuse the appellant, but this does not show that it was the deceased who was the aggressor as abuses were proceeded by the flashing of the torch by the appellant at the deceased which was resented by the latter, and, therefore, the appellant is not entitled to the complete right of self‑defence as his case is not covered by section 100 of the Pakistan Penal Code. It is manifestly clear from the state ment of the appellant that it was a sudden fight, and, therefore, Explanation to Exception 4 to section 300, P. P. C. would be applicable. If a person is, however, attacked suddenly and while defending himself a fight develops, it cannot be called a sudden fight as mentioned in Exception 4 to section 300, P. P. C. and in such like cases, i.e. sudden attack, the person attacked has the right to defend himself. On the facts of the present case it is not a case of a sudden fight, because the motive for the offence has been disbelieved by my learned brothers, who have come to the conclusion that there was no enmity between the accused and the deceased. In my opinion this was a chance encounter brought up by the flashing of the torch by the appellant which dazzled the deceased who abused him and the latter also abused him. After the exchange of abuses it would be correct to call it a sudden fight and not a sudden attack and the question of the right of self‑defence does not arise. In this view of mine, I am fortified by Akhtar Hussain v. The State (P L D 1958 S C (Pak.) 251), where it was held that "in a sudden fight in the heat of passion upon a sudden quarrel without the offender's having taken undue advantage 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 is immaterial which party offers the provoca tion". This authority is applicable to the instant case, because from the very statement of the appellant it is clear that the deceased was armed with a stick and he was armed with a knife and after the receipt of two stick blows, the appellant inflicted seven injuries on the vital parts of the body of the deceased with a knife, and, therefore, he has taken undue advantage over the deceased by acting in a cruel and unusual manner and, he is not entitled to the benefit of Exception 4 to section 300, P. P. C. Even if it is assumed for the sake of argument without conceding that the appellant acted in self‑defence, yet the number of injuries on the person of the appellant and the deceased would show that the attack on the appellant was short‑lived and the attack on the deceased was sustained and carried out with great determination and without caring for the consequences. In support of this contention, the learned Additional Advocate‑General relied upon Ibrahim and others v. The State (P L D 1961 S C 200) where it was held as under: "Where the disproportion between the injuries, the accused had received which indicated a short‑lived attack delivered with no great force by the deceased and their companions, and the injuries which the accused and their party caused clearly proved that the attack was sustained and carried out with great determination and without regard to the consequences, it was held that the circumstance negatived the plea of self‑defence".

15. The learned counsel for the appellant referred to Imam Bakhsh v. The State (P L D 1961 B J 22), where it was held that "the mere fact that the accused had succeeded in snatching the weapon from the deceased did not prove that the apprehension of danger to him had come to an end. The right of private defence of the body continued with the accused when he delivered the blow on the head of the deceased with the same dandall. The case was therefore held to be fully covered by section 100 of the Penal Code, 1860." This authority is, however, not applicable to this case, because it is a case of a sudden attack and the right of self‑defence is available, but the instant case arises out of a sudden quarrel. The learned counsel for the appellant also relied upon Ratna Munda v. The State (A I R 1951 Orissa 245), where it was held that "an accused is perfectly justified in resisting an aggressive attack on him by taking the weapon from out of the deceased and inflicting injuries on him to the extent that may be required according to his assessment of the circumstances at the time for the purpose of preventing any further assault on himself by the deceased. If in the course of it he kills the originally aggressive person, section 100 completely protects it". The facts giving rise to that case briefly are that 22‑9‑1949 was the Muakhoi day when the villagers were in a festive mood. The deceased who had taken drink on that occasion came out of his house with a Falsia telling his wife that he was going to kill the accused and finish him off that day and ran towards the house of the accused which was about 120 cubits away. He is said to have entered into the house and attempted to assault the accused with the Falsia, but the accused managed to ward off the assault. He struggled with the deceased to wrest away the Falsia from his hands. There was a tussle between the two and ultimately the accused was able to get hold of the Falsia with which he dealt severe blows on the deceased and ran away from the place. This case is distinguishable, because the deceased with a Falsia in hand had entered the house of the accused and attacked him, and, therefore, it was a case of a sudden attack and not of a sudden quarrel. Bheli v. State (A I R 1952 Raj. 153), relied upon by the learned counsel for the appellant is also a case of a sudden and premeditated attack and was not a case of sudden fight, and, therefore is not applicable.

16. From the facts of the case it is manifestly clear that the fight between Ghulam Farid appellant and the deceased was sudden. His case is, however, not covered by Exception 4 to section 300, P. P. C., because he took undue advantage over the deceased by dealing him seven blows some of which were on the vital parts of the body of the deceased and had thus acted in a cruel and unusual manner, and so I hold that he has been rightly convicted under section 302, P. P. C., and would, therefore, maintain his conviction and sentence and dismiss his appeal.

17. Since the occurrence was the result of a sudden quarrel, the lesser penalty provided by law, i.e., the transportation for life, awarded by the learned trial Judge is quite appropriate, and staving no substance in the petition. I dismiss it. K. B. A. Appeal dismissed.