1988 PLP 656 (MLD)

Leaving the dead body in the hospital, Muhammad Rafiq complainant started for the police station. On the way Muhammad Hanif, Sub‑Inspector, met him at Tariq Mor and he reported the occurrence to him at 9.15 p.m. vide his statement Ex. PB, on the basis of which formal F.I.R. Ex. P.B/1 was recorded at the police station at 9.25 p.m.

3. After recording the statement of Muhammad Rafiq complainant, the S.I. reached the hospital. He prepared the inquest report Ex. PH of the dead body and handed it over to Akhtar Hussain Constable. Then he reached the place of occurrence and secured some blood‑stained earth vide memo. Ex. PF. The accused was not available. He was declared a proclaimed offender. Malik Habib, D.S.P. (P.W. 10) arrested him on 24‑10‑1983. After the investigation he was challaned.

4. On 12‑6‑1983 Dr. A‑A. Khalid, S.M.O., District Headquarters Hospital, Faisalabad, conducted post‑mortem examination on the dead body of Abdul Rashid deceased and found a stab wound 3 cm x 1 cm x chest cavity deep on front left chest at 5th intercostal space going slightly downward and forward. In the opinion of the doctor death was due to shock and haemorrhage resulting from the above injury which was sufficient to cause death in the ordinary course of nature.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Muhammad Rafiq, Imdad Ali and Ghulam Muhammad.

6. The accused pleaded not guilty to the charge and denied the prosecution allegations against him. He maintained that he was involved due to enmity. No evidence was led in defence.

7. After examining the evidence on the record, the trial Judge came to the conclusion that presence of Ghulam Muhammad (P.W. 8) at the spot was doubtful but that of lmdad Ali (P.W. 7) was possible, and presence of Muhammad Rafiq (P.W. 6) in the house of his father was "well explained". Summing up the discussion of evidence, he observed that possibility might be that when the accused saw Muhammad Rafiq P.W. returning towards him, he tried to slip away to avoid possibility of being beaten "by the deceased and his brother. He was heated up and provoked. He picked up Chhuri from any of the surrounding shops and gave single blow to the deceased " He, therefore, came to the conclusion that the accused was guilty under section 304 Part II of the P.P.C. Accordingly, he convicted him thereunder and sentenced him, as mentioned above.

8. The main argument of the learned counsel for the petitioner was that the observation of the trial Judge that the accused picked up the Churri from any of the surrounding shops was wholly conjectural as there was absolutely no evidence on the record to that effect. He further submitted that the trial Judge failed to consider the evidence on the record that a quarrel had taken place between the accused and the deceased two days prior to the occurrence, therefore, it was not a case of sudden quarrel and the offence committed by the respondent clearly falls under section 302 of the P.P.C. Learned counsel for the respondent submitted that the evidence on the record has been correctly appreciated by the trial Court and the respondent has already served out his entire sentence, therefore, no interference with the impugned judgment is called for. The learned Stale counsel also supported the impugned judgment.

9. The motive alleged by the prosecution was that the accused owed Rs. 100 to the deceased and two days prior to the occurrence a quarrel had taken place between them over that amount. There is, however, not an iota of evidence on the record to support this version. Muhammad Rafiq complainant stated that two days earlier he was informed by his mother that a quarrel had taken place between the deceased and the accused over the disputed amount. Neither the mother of the deceased nor any person who had witnessed the incident was examined by the prosecution to support that version. lmdad Ali P.W. stated: "This quarrel took place on dispute of Rs. 100 which Meraj Din owed to the deceased." He too did not claim to be an eye‑witness to the "dispute of Rs. 100." In examination‑in‑chief Ghulam Muhammad P.W. stated that the fight took place on account of demand of Rs. 100 by the deceased from Meraj Dm accused. In cross‑examination he stated that somebody had told him that a quarrel had taken place between the accused and the deceased two days before the occurrence. There is thus no legal evidence on the record to support the version that a quarrel had taken place between the accused and the deceased two days prior to the occurrence. The motive alleged by the prosecution remains unsubstantiated.

10. The prosecution version of he occurrence is supported by three eye witnesses, namely, Muhammad Rafiq complainant, lmdad Ali (P.W. 7) and Ghulam Muhammad (P.W. 8). It is true that the observation of the trial Judge that the respondent picked up a Chhuri from any of the surrounding shops is not supported by any evidence. However, this fact cannot improve the case of the complainant /petitioner because the evidence available on the record clearly attracts Exception IV to section 300 of the P.P.C. It is prosecution's own case that before the infliction of Chhuri blow, the deceased and the accused were quarrelling and exchanging abuses. Imdad Ali P.W. 7 stated that he saw the accused and the deceased abusing each other and he immediately went to the house of the deceased and informed his brother Muhammad Rafiq complainant that they were abusing each other. In cross‑examination Ghulam Muhammad (P.W. 8) stated that people gathered "around the deceased and accused but no body was interfering in separating them." This statement indicates that the accused and the deceased were grappling with each other. In examination‑in‑chief he stated:" Rashid fell down on the ground face downward. This fight took place on account of demand of Rs. 100 by Abdur Rashid from Meraj Din." The afore referred pieces of evidence clearly indicate that it was a case of unpremeditated assault committed in the heat of passion upon a sudden quarrel. The respondent gave only one blow to the deceased, therefore, he cannot be said to have taken any undue advantage or acted in a cruel or unusual manner. In the circumstances Exception IV to section 300 of the P.P.C is attracted to the facts of this case and no interference in exercise of revisional jurisdiction of this Court is called for. This petition is, therefore, dismissed. H.B.T./M‑910/L Petition dismissed.