P L D 1966 Supreme Court 555 (PLP)

But the fact that there was a sudden quarrel followed by a sudden fight cannot be ignored, 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 predeter mined 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 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 to be visited with the same punishment that the law reserves for deliberate offences of the same kind, committed in cold blood, that is with malice afore‑thought. Allowing the above mitigating circumstance, sentence of death was reduced to transportation of life, S. Murtaza Hussain 'Advocate, Supreme Court of Pakistan for Appellant. S. Nasiruddin, Advocate‑General, West Pakistan, (M. Haleem, Assistant Advocate‑General, West Pakistan and S. Hamid Hussain, Advocate, Supreme Court with him), instructed by Shafiq Ahmad, Senior Attorney, on behalf of Ijaz Ali, Attorney, Supreme Court, on record for Respondent. Date of hearing: 30th March 1966. CORNELIUS, C. J.‑Leave was granted on a Jail Petition to the appellant, Sikandar, to appeal against the sentence of death awarded to him for the murder of one Karam Khan, caused by a single blow of a knife in the region of the abdomen, at about 9 a.m. on the 1st June 1963. It was noted in the order that what had been overlooked in the Courts below was "that 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 that no consideration had been given to the question "whether the lesser sentence would not have been more appropriate in the circumstances". We have now seen the record of the case, and have heard Mr. S. Murtaza Hussain on behalf of the appellant and the Advocate‑General, West Pakistan, in reply. The story as told by the informant, Abdul Aziz, P. W. 6, brother of the deceased was that he and Karam Khan were present at a certain hotel having tea, when Sikandar appellant, with Muhammad Ayub, Aslam and Dilawar arrived there. A dispute arose. Abdul Aziz was charged by Aslam with having abused one Khan Afzal, who was at that time at the hotel and is a relation of Aslam. On being referred to, Khan Afzal denied that he had been abused, but this did not end the discussion, and the six men then went out of the hotel, quarrelling with each other. There, Aslam abused Abdul Aziz, and calling him a liar gave him a slap, whereupon, all the four men fell on him and he ran away. They, however, caught Karam Khan, his brother, and Aslam incited Sikandar to kill him. Thereupon Sikandar stabbed Karam Khan, who ran into the hotel, and fell on a table. Sikandar aimed another blow at him, which fell on the table. He was then caught, but the other three ran away. Muhammad Ayub was later arrested and tried along with Sikandar, but the two others, namely, Aslam and Dilawar remained absconding, Ayub was given the benefit of a doubt and was acquitted at the trial. There were three other eye‑witnesses, who gave direct evidence as to what happened between the two groups before the stabbing. All of them were present at the hotel. Muhammad Bashir, P. W. 7, said that when the groups went out, he heard them "talking in harsh tones" and that there was grappling between them, "but no fist beating". Daud, P. W. 8 did not know what the quarrel was about, but he clearly said that the parties exchanged fist blows before Sikandar was stabbed. He saw the incident from a distance of three paces. In cross‑examination to a lawyer of the name of Nasiruddin who seems to have been curious to get more details than were necessary for the performance of his functions, this witness said that the fist blows followed after the stabbing, and that no fist blows were given before the stab, but when cross- examined by another lawyer of the name of Mahmud, he admitted that the groups sat down on the ground outside the hotel and that they got up to fight and the fight took place in front of the hotel. The third witness Haji, P. W: 9, remained in the hotel throughout and only saw Karam Khan being chased into the hotel. He helped to catch Sikandar on the spot. On this evidence, the conclusion must be reached, giving the benefit of any doubt to the accused person, that there was a sharp and angry quarrel between the two groups, which was followed by grappling and a fight in which fist blows were exchanged, and it was after this that the knife was used by Sikandar. The deter mination of the appropriate sentence for Sikandar is necessarily E to be governed by this conclusion. Under the law, if murder is committed where a sudden quarrel is followed by a sudden fight, but only if the killing is attended by cruelty of the taking of undue advantage, otherwise the offence is culpable homicide not amount ing to murder. A conclusion on the point of undue advantage is usually based upon a consideration of the weapons available on the two sides, and the manner of their use by the accused party. In the present case, it does not appear that Karam Khan or Abdul C Aziz had any weapon, or at any rate that they brought them into play, and therefore the point of taking unfair advantage must be held against the assailant, namely, Sikandar. But the fact that there was a sudden quarrel followed by a sudden fight cannot be ignored, in the manner of the 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 arti ficially raised as an excuse for making a pre‑determined fatal attack, the responsibility for the provocation and the raising of tempers, E 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 F affair. A crime committed in hot blood, for the raising of which the victim is equally responsible with the offender, is not to be visited with the same punishment that the law reserves for deli berate offences of the same kind, committed in the cold blood, that is with malice afore‑thought. 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 Sikandar to transportation for life. A. H. Sentence reduced.