1988 P Cr (PLP)

RIAZ AHMAD, J.‑‑The appellant Aslam alias Dhad alias Sultan Rahi son of Din Masih aged 28 years was tried by an Additional Sessions Judge at Lahore on a charge under section 302, P.P.C. for having caused the murder of Yusuf alias Shahbaz Gill. The learned Additional Sessions Judge vide his judgment dated 1‑9‑1983, found the appellant guilty on the said charges and accordingly, the appellant was sentenced to death and to pay a fine of Rs.2,000 or in default of the payment of fine to suffer rigorous imprisonment for a term of six months. The appellant assails his convictions through this appeal and the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal as well as the reference.

2. The unfortunate occurrence resulting into the death of Yusuf deceased took place on 9th of October, 1981 at 3.30 p.m. in Pakistani Chowk, Ichhra, Lahore situated at a distance of one kilometre from Police Station Ichhra. On the basis of the statement Exh.PB made by William Masih PW8 and recorded by Muhammad Saleem Sub‑Inspector at 5 p.m. in Mayo Hospital, the formal F.I.R. Exh.P.B/1 was drawn at the Police Station Ichhra by Babu Khan, Moharrir Head Constable PW3 at 5.30 p.m. Briefly the prosecution case as narrated by the first informant in his statement is that on the fateful day for the purchase of intestines of the cattle sacrified on the eve of Eid‑ul‑Azha, Yusuf deceased was sitting on the roadside and close to him, the appellant Alam alias Dhad was also cleaning intestines near the Arain mosque. At about 3.30 p.m. the deceased passed from near the appellant, when suddenly, an altercation took place between them which was followed by grappling and exchange of fists. The deceased hit the appellant on his mouth with his head, one Rafique alias Battal and the first informant intervened and separated both the appellant and the deceased. It transpired that two days before the occurrence, the appellant was playing music on a tape‑recorder in the mohallah. The deceased restrained the appellant from doing so but the appellant kept on playing the music whereupon, the deceased brought out the music cassette from the tape‑recorder and did not return it. After the grappling and exchange of fists and when they were separated, the deceased proceeded to his destination and while he had just crossed the cycle shop of Ustad Phannu, the appellant while running, inflicting a Chhuri blow to the deceased on his back. The deceased turned himself towards the appellant, when another Chhuri blow was inflicted on the left side of his head. In the meanwhile, Pervez Masih, Akbar Masih and Iftikhar alias Khari Butt also reached the spot. While running, the first informant caught hold the appellant in a Japha and Iftikhar alias Khari Butt snatched the blood‑stained Chhuri from him. The appellant escaped from the scene. The deceased was removed to the hospital in a rickshaw where the deceased succumbed to his injuries in the casualty ward of the Mayo Hospital.

3. On 10‑10‑1981 at 2 p.m. Dr. Muhammad Siddique Medical Officer (PW 7) in the office of the Surgeon Medico‑legal, Lahore, conducted the post‑mortem examination on the dead body of Yusuf deceased and the following injures were noticed:‑ (1) A tranversely oblique stab incised wound 3 cm x 1 cm on left side front of chest lower part 14 cm below the left nipple and in its line. (2) An oblique incised stab wound 1 cm x 1 cm on left side of back of chest middle, 7 cm from mid spine and 15 cm from the top of the shoulder. Injury No.1, a stab had cut through and through. The left sixth costal cartilage pierced the paricardium cutting the apex of the heart and entered the right ventricle of the heart cutting it through and through. The cause of death in the opinion of the doctor was shock and heamorrhage as a result of extensive injury to the heart under injury No.1 which was sufficient to cause death in the ordinary course of nature. Both the injuries had been caused with a sharp‑edged pointed weapon. On the same day at 2‑45 p.m. the said doctor also examined the appellant who was produced before him by the Ichhra police. The following injury was noticed on his person:‑ "A bluish contused swelling 5 x 4 cm on right cheek." The injury was simple in nature caused by a blunt weapon.

4. On 9‑10‑1981, the appellant was arrested by Muhammad Saleem, Sub‑Inspector P.W.13, the blood‑stained Chhuri P.5 which had been snatched by Iftikhar Butt alias Khari was produced before the S.I. Muhammad Saleem who took the same into possession vide memo Exh.P.E attested by Iftikhar Butt P.W.10, Zikria (not produced) and P.W.12 Inayat Gil besides the Sub‑Inspector, the Investigating Officer.

5. At the trial, to prove its case, the prosecution placed reliance upon the ocular testimony furnished by P.W.8 William Masih the nephew of the deceased and P.W.11 Akbar Masih a maternal cousin of the deceased and Iftikhar Butt P.W.10. One Pervez Masih was also cited as an eye‑witness but was given up by the prosecution as unnecessary. It may be stated here that Iftikhar Butt P.W.10 was declared hostile as he did not support the prosecution case. Besides the ocular testimony, the prosecution also placed reliance upon the production of blood‑stained Chhuri before the investigating officer P.W.10 Iftikhar Butt who had snatched the same from the hand of the appellant.

6. When examined under section 342, Cr.P.C. to explain the evidence adduced against him, the appellant made the following statement: ‑ "Yusuf deceased was holding a shop of intestines on the day of occurrence near my shop of intestines. At the time of occurrence, Yusuf was cleaning the intestines with his Chhuri. Yusuf picked up some intestines from any shop which resulted into a quarrel. We grappled with each other. Yusuf deceased hit his head against my face and attacked with his Chhuri. I was bamboozled and finding an imminent danger to my life by the attack of the deceased with his Chhuri, I acted in self‑defence and on sudden and grave provocation. None of the P.W.s were present there and he did not chase the deceased."

7. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the evidence on the record and we have also heard the learned counsel of the parties at length. After careful analysis of the prosecution evidence, we are convinced with the truth of the motive as alleged by the prosecution. In support of its case and to prove the motive, P.W.6 Yusuf Masih, P.W.8 William Masih and P.W.12 Inayat Gil have deposed. The testimony of these witnesses is natural and thus the witnesses have no motive to falsely implicate the appellant and we find no reason that these witnesses would be fabricating or concocting the motive. The incident which took place over the playing of music two days before the occurrence also thus stands proved. No doubt that Iftikhar Butt P.W.10 has been declared hostile but even if, we discredit his testimony from consideration, the testimony of the other eye‑witnesses cannot be brushed aside and due weight has to be attached to their statements. Their presence is also natural and they had no any animosity to falsely implicate the appellant and being day time occurrence, the question of mistaken identity does not at all arise. Furthermore, it is not the case of substitution. Besides these features, the participation in the crime by the appellant also stands proved through his own admission which has been reproduced above in extensive.

8. The crucial question for determination is whether the occurrence took place in two parts as prosecution wants us to believe or it was the same altercation in course of which the appellant inflicted Chhuri blow. The first informant clearly stated in the F.I.R. that the deceased had struck his head on the mouth of the appellant but in his statement in Court, he did not explain this circumstances which also stands proved on account of the injury received by the appellant. The first informant was duly confronted with the FIR wherein as mentioned above, he stated that the deceased had struck the appellant with his head on his mouth. The facts of the case clearly reveal that the first informant as well as the appellant were engaged in the business of purchase of intestines of the cattle which were sacrified on Eid‑ul‑Azha. It further stands established from the record that the appellant was cleaning the intestines and was removing the far from them with a Chhuri. It is also the case of the prosecution that when the deceased passed nearby, an altercation took place followed by grappling, exchange of fists and the deceased struck his head on, the mouth of the appellant to injure. We are not convinced that after, this incident, the deceased had proceeded and then he was chased by the appellant. In our view, it was the same transaction and after the deceased had hit the appellant with his head on his mouth, the appellant then inflicted the Chhuri blow causing the death of the, deceased.

9. Considering all the circumstances of the case, the next question which arises is whether the act of the appellant falls within the purview of section 302, P.P.C. In our view, the evidence is not covered by the provisions of section 302, P.P.C. but is covered by Exception 4 of section 300, P . P . C . which 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.

10. In our view, it was a sudden affair and without premeditation in the heat of passion, the Chhuri was inflicted and, therefore, the evidence amounts to culpable homicide not amounting to murder. Accordingly, we set aside the conviction and sentence of the appellant awarded to him under section 302, P.P.C. and we alter the same into one under section 304, Part I, P.P.C. Accordingly, the appellant in held guilty under the aforesaid provisions of law and the sentence is to undergo for a period of ten years, The sentence of fine is also maintained. It is further noteworthy to mention that in the circumstances of the case, the act of the appellant does not warrant the grant of any concession under section 382(b), Cr.P.C. With the alteration in the conviction and the sentence the appeal filed by the appellant is dismissed and the reference is answered accordingly. Death sentence is not confirmed. S. A.IA‑223/L Order accordingly.