P L D 1972 Karachi 628 (PLP)

3. An investigation followed in the course of which the spade with which Biro is said to have been attacked was recovered from the scene of offence. The appellant was arrested on the 25th of June 1968 and his confession recorded on the 27th. The three accused persons were then sent up for trial with the result already stated.

4. The main evidence upon which reliance was placed by the prosecution was the ocular testimony of Manthar, Bacho, Umar and Chuho and, as against Dhingano only, the confession. According to the prosecution the motive of the crime was that the deceased's brother Usman had filed a suit in respect of the land which was being cultivated by the three accused as haris of one Alam Chand to whom, it is said, deceased's father had leased the land. There was, therefore, according to the ocular evidence, no provocation given to the accused by the deceased which led to the attack upon him. However, the F. I. R. and the state ments of the police disclose a case which was in two major particulars, different Neither the F. I. R. nor the police statements mentioned Hashim and Saindad at all. Moreover both the F. I. R. and the police statements gave the version that Dhingano protested against Biro passing through his land and reminded him and he had abused him whereupon some harsh words were exchanged as a result of which Dhingano picked up a spade and attacked Biro. Preferring the version given during the police investigation to the one given in the Court the learned Judge acquitted Hashim and Saindad. But both upon the basis of the ocular testimony as well as the confession he came to the conclusion that Dhingano at any rate had killed the deceased.

5. Again the learned Judge thought that there was a deliberate suppression by the witnesses of the quarrel between the deceased and Manthar and, believing the version set up during the police investigation, came to the conclusion that the killing must have been preceded by a quarrel. Although the witnesses now say in Court that they only saw Dhingano being struck. They clearly had admitted in the police statements that there had been abuses immediately before. The confession of the accused also spoke of such a quarrel and the material part of it is in the following words : "I have killed Biro, Mari with spade, yesterday in morning. On two three occasions, I had dissuaded him from passing through our land Because we worked there alongwith our family. But he did not yield. Yesterday deceased Biro passed near our land, I prevented him, whereupon he started abusing me, and told that what I would do to him. Thereafter I took my spade and gave blow to deceased Biro who fell down and thereafter was going to Sanjhoro Police Station to report the matter, when A. S. I. met me on the way, and I surrendered myself." Upon the basis then that there had been a sudden quarrel, the learned Judge thought Exception 4 to section 300 of the P. P. C. applied and that Dhingano was, therefore, guilty of an offence under section 304, P. P. C. under which section he, therefore, sentenced him to R.I. for 10 years. Upon this aspect of the case the learned Judge's discussion is contained in a short passage which I quote : "Consequently, there can be doubt that injuries were caused to Biro in a sudden quarrel, without premeditation, and in the heat of passion. Besides this, Dhingano has caused two injuries to the deceased, one of which only had proved fatal according to the medical evidence. Therefore, the offence falls within the definition of Exception 4 to section 300, which is punishable under section 304, P. P. C. Accused Dhingano is therefore convicted under section 304, P. P. C. It further appears from the confession that Biro deceased had not only persisted in passing though the land of Dhingano but had abused him when Dhingano prevented him from doing so on the day of occurrence . . . . . ' Now the requirements of this Exception are not fulfilled merely because the crime is committed without premeditation and in the heat of passion upon a sudden quarrel. What this Exception requires is that the crime be committed in a sudden fight in the heat of passion following a sudden quarrel. Now of a sudden fight there was no evidence at all in this case. A mere wordy quarrel does not amount to a fight within the meaning of this Exception ; if it did, it was unnecessary for the Legislature to use the words "sudden fight" in addition to the words "sudden quarrel". There must be, in a fight, some kind of a physical conflict in which both sides take part although it would be then immaterial which one of them offers the provocation or commits the first assault. Perhaps it may not be necessary even that the deceased actually inflict a blow upon the culprit and even grappling might be sufficient to constitute a fight.

6. In the present case there was, however, no evidence whatever of anything done by the deceased except the abuse. The witnesses do not say so in their depositions nor is it any body's case that they earlier said so to the police. I have already quoted from the confession to show that oven there is no talk of a fight. The only place whore there is any mention of a blow by the deceased is in the statement of the accused Dhingano during the committal proceedings where he does say that after he had rebuked the deceased the latter gave him a blow with the back side of a hatchet. In the Sessions Court, however perhaps realising that this version tallied neither with the medical evidence nor with the confession, he omitted to refer to any injury caused to him and limited himself to saying that the deceased wanted to assault him.

7. There was thus no evidence, whatever, upon which a finding could be given that there has been a sudden fight and indeed the learned Judge has not given a finding to that effect at all. Upon the facts as found by him, that is a case of abuse followed by the attack by the accused upon the deceased, it would be impossible to hold that the Exception 4 applied. If, therefore, Dhingano was guilty of an offence at all it must be an offence under section 302, P. P. C. I, therefore, set aside his acquittal under section 302, P. P. C. and order a fresh trial. Since this can hardly be done with the conviction under section 304 standing, I set aside the said conviction also.

8. I have deliberately refrained from making any comment upon the ocular testimony or even considering it at any great length since I do not desire that the Judge who now tries this case should feel in any way bound to hold that Dhingano is guilty at all. If on the evidence he comes to a conclusion that Dhingano has not committed any offence he will of course hold him not guilty and if, upon such evidence as may be led before him, he comes to the conclusion that there was a fight and that all the requirements of Exception 4 are fulfilled, he will certainly give the respondent the benefit of this Exception. The respondent is already in custody and will now be treated as an undertrial prisoner. S. G. D. Revision allowed.