1998 PLP 891 (SCMR)

ABDUR REHMAN KHAN, J.

Although the petition for leave to appeal against the impugned judgment dated 15-1-1995 of a learned Division Bench of the Lahore High Court was moved by 4 petitioners but leave was allowed only in case of Muhammad Nawaz petitioner/appellant No.1 and in respect of other petitioners Nos.2 to 4, it was refused. It is to be noted that even in case of Muhammad Nawaz leave was granted on the limited ground to find out whether his case fell under exception 4 to section 300, P.P.C., and as such he was, therefore, liable to be punished under section 304, P.P.C. instead of section 302 P.P.C. It would, therefore, be proper at this stage to reproduce the relevant portion of the leave granting order:-- "The leaned counsel appearing for the convicts did not seriously challenge the convictions and the sentence awarded to Subah Sadiq and Habib Khan. The plea of the defence that some unknown persons had fired at the deceased during amelee was rightly rejected by the Courts below. There was only one gun at the spot and all the eye-witnesses who had no reason to make a false statement on this point unanimously said that it was Muhammad Nawaz who had fired at the deceased. We see no reason to doubt their testimony in this regard. It is admitted that there was some grappling at the time of occurrence between the parties. There is a finding by the Courts below that the occurrence was not a premeditated one. In the circumstances a question arises for consideration whether the case of Muhammad Nawaz falls under exception 4, section 300, P.P.C. To consider this question alone leave to appeal is granted. "

2. The relevant factual background under which the matter was brought in this Court and leave was granted briefly stated is that Ghulam Safdar (P.W.6) reported the incident of the murder of his brother Ghulam Razzaq and the injuries inflicted on him, Muhammad Amir (P.W.7) and Ghulam Muhammad (P.W.10), on 16-4-1989 at 5-30 p.m. report was lodged on the same date at 6-15 p.m. and it was enumerated therein that there was civil litigation about land between him and the appellant. Before the present occurrence, there was a quarrel at 3-30 p.m. the same day, between Muhammad Amir his paternal aunt's son and Zafar Ali a relation of the appellant. It was at 5-30 p.m. when he alongwith his deceased brother were taking their cattle to take water and when reached near the house of Imdad Hussain, he found the appellant armed with rifle and his co-accused, five in number and by name Subah Sadiq, Ghulam Haider, Habib Khan (armed with sticks), Abdul Aziz and Fazal (empty-handed) standing in the street. When the accused noticed them, out of them Ghulam Haider raised Lalkara and the appellant aimed his rifle at his brother and fired at him hitting him on his right eye who fell on the ground and expired. It is said that, thereafter, the other accused beat him and his relations Ghulam Muhammad and Muhammad Amir with sticks and stones.

3. The learned trial Court by its judgment dated 16-1-1991, acquitted Abdul Aziz an4 Fazal Khan out of the accused while the appellant was-found guilty under section 302, P.P.C. and was sentenced to death and a fine of Rs.20,000 or in default to undergo two years' R.I. The other three petitioners/accused were convicted under sections 325 and 323, P.P.C. and were awarded various terms of imprisonment holding them liable for their own act in the incident as section 148, P.P.C. was held inapplicable. The High Court in appeal maintained the conviction of the appellant under section 302, P.P.C., but commuted his sentence in life imprisonment and enhanced the amount of fine to Rs.50,000 or to remain in prison for further 4 years. 'The conviction and sentence of the other three appellants was, however, kept intact.

4. The learned counsel reiterated his submission as had been made at the leave granting stage that there was grappling between the parties at the time of occurrence and that the shot was fired during the encounter between the parties that no premeditation had been proved and that it was established that it was a sudden fight between the parties, therefore, the case of the appellant was covered by exception 4 of section 300, P.P.C. and as such he was liable to be punished under section 304, P.P.C. to support his view-point he referred to 1971 SCMR 476 (Masoom Beg v. Muhammad Munir and another), 1988 SCMR 1022 (Muhammad Siddiq v: The State) and PLD 1993 Supreme Court 35 (Allah Dawaya v. The State). On the other hand the counsel for the complainant side supported the impugned judgment and he forcefully stressed that there was no grappling before the appellant fired that shot and that the word grappling only appears once in the entire prosecution evidence in the case. To prove his submission he referred to page 91 of the file wherein the statement of (P.W.6) Ghulam Safdar complainant, it is recorded:-- "It is correct that Muhammad Nawaz, the accused did not fire a second shot after the first. Muhammad Nawaz, the accused after the fire shot alongwith other accused came running towards us. Muhammad Nawaz, the accused had not used his rifle as a stick after that, because we and the accused had grappled each other and if Muhammad Nawaz had fired, the other accused had the apprehension to be hit with it."

5. Learned counsel for the State adopted the arguments advanced by the complainant's counsel.

6. Before referring to the factual background of the case cited at the Bar, it would be proper to refer to the essentials of exception 4 to section 300, P.P.C. It is provided in the said explanation that culpable homicide as not a murder provided all the following ingredients co-exist. It is committed. (a) without premeditation; (b) in a sudden fight; (c) in the heat of passion upon a sudden quarrel; (d) without the offender's having taken undue advantage or acted in a cruel or unusual manner. Therefore, to claim the benefit of this exception the offender would be legally obliged not only to prove one or two requirements of the exceptions but to substantiate that all the ingredients of this exception operate in his favour. In this case it is established that the appellant was armed with the rifle and that neither the deceased nor the P.Ws. were armed with any weapon; but the appellant fired at the deceased before both the sides had grappled with each other. Therefore, even if there was no premeditation for the commission of offence, the other ingredients of the exception being not available the offence committed by the appellant would be murder punishable under section 302, P.P.C., and not culpable homicide not amounting to murder to be punished by section 304, P.P.C. Even if for arguments sake it is admitted that murder was not pre-planned and that it was committed in a sudden fight in the heat of passion as a result of sudden quarrel still in the circumstances of the case when the complainant side was unarmed and could not pose any threat of serious consequences to the appellant and his co-accused then the appellant cannot plead successfully that he has either taken undue advantage nor has acted in cruel or unfair manner as the appellant with his rifle hit the deceased with the shot straight in his eyes when the later was taking his cattle to the water pot. Thus the appellant took undue advantage and acted in brutal, cruel and unusual manner to deal with his opponent. It has been held in many cases that earlier decided criminal cases can hardly offer assistance on account of the diverse nature and distinguishable feature of each case and in such a situation rules or principles of general application cannot be laid down. The judgment reported as 1971 SCMR 476 relied on by the learned Advocate of the appellant proceeds on entirely different facts than those involved in the present case as is clear from the following para in the judgment:-- "The mere fact of carrying a knife does not imply that the accused went to Anarkali with the intention to kill the accused. As the deceased, he might have thought it prudent to take a knife with him in order to defend himself in the event of an attack by the deceased. The knife used was not big in size. Its blade was 4-1/2 inches in length and width in the middle was 3/4 inch. This was rather in the nature of a pen-knife. This was not certainly a dagger. The nature of the knife carried by the accused was not such as would imply that he had an intention to kill. He did not use the knife as soon as he saw the deceased. The accused was first given a provocation by the deceased by showing his remonstration against his visit to Anarkali despite prohibition. In fact, he did not use the knife until there was an exchange of abuses followed by grappling. The learned Single Judge found on the basis of, the evidence of P.W.11 Zafar Ali that the deceased was better built and stronger than the accused. In. these circumstances the fourth exception to section 300, P.P.C., seems more applicable than the second exception. In either case, however, I do not think that the High Court's order requires any interference. I would, therefore, dismiss the appeal. " In the case appearing in 1988 SCMR 102, the appellant and his two brothers had also received injuries and there is no mention of the weapon used by both sides. In the other case referred as PLD 1993 Supreme Court 35, it is laid down that the application of exception 4 to section 300, P.P.C. cannot be denied to the accused because his act of causing death of the deceased was intentional. This was not the point agitated or involved in the present case. On the other hand in the case reported as, PLD 1977 SC 14, relied on by the complainant's Advocate the following observations were trade at page 23:-- "However, assuming for arguments sake even if it be taken to be a sudden fight, yet the third respondent would not be entitled to the benefit of exception 4 as the deceased not being armed was not on an equal footing and, therefore, stood in a disadvantageous position. In such circumstances the benefit of - exception 4 cannot be had. The reference to the case cited as Miran Bakhsh v. Niaz and another (1975 SCMR 337) is also inapt, for, in that case the complainant party had taken exception to the visit of the accused party to the village over which the parties fought duly armed with deadly weapons and in the course of the fight persons from both sides had suffered injuries. It was, therefore, not a case of sudden fight and special leave was refused in that case on other consideration. " The case appearing at page 327 of 1977 SCMR also supports the contention advanced by the complainant's counsel as it lays down the rule that if the appellant had clearly acted in a brutal and cruel manner and has taken undue advantage of unarmed person then he was liable to imprisonment for life. The third case referred to by the learned counsel for the complainant is PLD 1959 Lahore 1009, and the rule laid down in this judgment is to the following effect:-- "It is next contended by his learned counsel that the offence of the appellant is covered by Exception 4 to section 300, P.P.C. He has tried to argue that there being no substantial motive proved on the record, the occurrence was without any previous malice. On spear injury given to the deceased, according to him was the result of a scuffle between the patties which developed between them suddenly on the spot. We are not prepared to accept the argument of the learned counsel that Exception a is attracted to the facts of this case even conceding that the occurrence is marked by absence of malice and premeditation. One important factor which must exist for the-application of Exception 4 to section 300, P.P.C. is that the accused persons should not act in a cruel or unusual manner and not take any undue advantage over his adversary. The occasion must not only be sudden and unpremeditated, but the party assaulted must be on equal footing in point of defence, particularly so when the attack is made with a deadly or dangerous weapon.'

7. From the above analysis of the evidence on record and the case-law, the offence committed by the appellant fell under section 302, P.P.C. and thus no interference is called for in the impugned judgment of the High Court: This appeal is, therefore, dismissed. . N.H.Q./M-120/S Appeal dismissed.