1984 P Cr (PLP)

4. The prosecution case in brief is that Haji Khushi Muhammad comp lainant in his statement Exh. P.C. recorded by Nazir Ahmad A.S.I. Police Station City Okara stated that on the night of occurrence he alongwith his son Abdul Sattar (injured P.W.), Tanveer (P.W.7) and Ahmad Din (P.W.1) went to see Sanghara Fair and witnessed the same. It was about 8.00 p.m. when there took place an altercation between Abdul P.W. on one side and Maqbool Ahmad petitioner and his co-accused Muhammad Hussain on the other side in which both the parties abused each other. Khushi Muhammad complainant intervened and separated them. After half an hour Maqbool Ahmad petitioner armed with a knife alongwith Muhammad Hussain his co-accused who was empty-handed appeared at the scene. Muhammad Hussain co-accused held the injured Abdul Sattar in Jappha while Maqbool Ahmad petitioner inflicted a knife blow hitting Abdul Sattar in the lower part of his belly towards left side, whereupon his intestines came out and Abdul Sattar fell down. The witnesses tried to catch hold of the accused but the accused threatened them that if any body came near he would be done to death. Thereafter both the accused succeeded in escaping: Besides Haji Khushi Muhammad complainant, the occurrence was witnessed by Tanveer and Ahmad Din P.Ws. They took Abdul Sattar to Civil Hospital, Okara where he was medically examined. On receiving the information as to this occurrence Nazir Ahmad A.S.1. Police Station City Okara rushed to the hospital where he recorded the statement EXh.P.C. of Haji Khushi Muhammad P.W. since Abdul Sattar injured according to the opinion of the doctor was not in a fit condition to make a statement. On the basis of his statement F.I.R. Exh.P.C./1 was registered by Muhammad Chiragh M.H.C. (P.W.4) at the Police Station Renala Khurd on 2nd October, 1979 at 12.30 a.m. under section 307/326/34, P.P.C.

5. Mazharul Haq S.I. (P.W.3) arrested Maqbool Ahmad petitioner at Adda Larrian Renala Khurd and on his personal search a knife EXh.P.I. was recovered from him on 28th November,1979, which was taken into possession vide memo. Exh.P.A. After investigation the petitioner and his co-accused were sent up for trial.

6. Dr. Muhammad Akthar (P.W.8) medically examined Abdul Sattar injured P.W. on 1st October, 1979 and found the following injury on his person:- "A stab incised wound 1 " x 2/3" on the left side of abdomen at the cateral side of it just near the anterior superior illiac spine omentum was out of the wound which could be seen by my eye." This injury was declared grievous, which was caused with a sharp-edged weapon within the duration of 6 hours.

7. The prosecution produced at the trial as many as nine witnesses in support of its case, out of whom Ahmad Din (P.W.1), Haji Khushi Muhammad (P.W.5), Abdul Sattar (P.W.6), the injured himself, and Tanveer Hussain (P.W.7) witnessed the occurrence. Faiz P.W.2 and Mazharul Haq S. I. P. W. 3 where the recovery witnesses of knife EXh.P.I. Muhammad Chiragh M.H.C. (P.W.4) deposed as to the recording of F.I.R. Exh.P.C./1 at the Police Station Renala Khurd. Dr. Muhammd Athar deposed as to the injury received by Abdul Sattar P.W.

7. The petitioner and his co-accused Muhammad Hussain when examined under section 342, Cr.P.C., at the trial, denied all the allegations. Maqbool Ahmad petitioner as to his involvement in the case stated that due to some rivalry between his relative Zafar lqbal Councillor Town Committee Renala Khurd and Haji Khushi Muhammad complainant who was also an octroi contractor of Town Committee Renala Khurd, he had been involved in the case. Apart from that Syed Khadam Hussain Shah was also against him. He further stated that he was innocent and that all the witnesses were either relatives of the complainant or his servants. Syed Hasan Akhtar (D.W.1) and Maulvi Muhammad Yousaf (D.W.2) appeared as defence witnesses. These witnesses deposed as to the innocence of Maqbool Ahmad petitioner.

8. The learned counsel for the petitioner has contended that the offence in the circumstances of the case is not covered by section 307, P.P.C, in any case the sentence awarded is excessive as both the Courts below have not cared to look into the extenuating circumstances. He has next submitted that the prosecution has with a design split up the incident into two phases i.e. one the ensuing of the quarrel and the other that of the petitioner coming alongwith the co-accused after half an hour with a knife and stabbing the injured just to make the act of stabbing as preconceived as such very much intentional and motivated. In fact it was one incident which took its start with the exchange of invectives and fist blows developing into a close fight during which the petitioner used his knife which he was having alongwith him. It is an occurrence which took place all of a sudden in which the injured cannot be regarded as without any blame. During the close fight the injured must have done some thing acute over which the petitioner felt the necessity of using his knife in the heat of the moment, so viewed as such the offence at the most falls under section 326, P.P.C, inviting lesser sentence since it cannot be maintained that the injured was without any blemish.

9. The learned counsel for the State has in reply submitted that the petitioner has been rightly convicted under section 307, P.P.C. and an appropriate sentence has been passed and there is an absence of any extenuating circumstances so as to have any impact upon the sentence as passed. The learned counsel has further submitted that the act of stabbing within the circumstances of the case was motivated and intentional so the petitioner deserves no concession.

10. The witnesses have stated and admitted that near the theatre of Alam Lohar a fight preceding the incident of stabbing took place between the injured and the petitioner taking its start from the exchange of abuses or invectives and developing through fist blows in which both the persons shared. It has been distinctly stated by Abdul Sattar the injured that a quarrel took place between the petitioner and himself in which invectives were exchanged and it has also been admitted by him in his cross-examination that they had given fist blows to each other. There is some substance in the submission of the learned counsel for the petitioner that the quarrel and the stabbing all took place within one incident, may be that it cannot be positively said but the probability of the same viewed in the circumstances of the case cannot be excluded altogether. If the first part as alleged is taken as such in which the injured and the petitioner equally shared them on their being separated, it cannot ordinarily be conceived that the petitioner became so motivated as to re-appear with a knife after half an hour. The time elapsing was likely to cool him down. On the other hand it looks probable that the fight was concluded successively with a knife blow by the petitioner. Now it is not known that how the quarrel started and who was on the offensive at the outset and who provoked whom and what type of abuses were exchanged and during the fist blows who was having the upper hand, the contention of the learned counsel for the petitioner without pleading self-defence that during the fight the injured must have done something acute which moved the petitioner to give a knife blow cannot in the circumstances be rejected out and out. It might be that the injured was having an upper hand to undo that the petitioner used his knife or the petitioner was put out of his mind by the conduct of the injured. Keeping in view the suddenness of the occurrence one way or the other shared by both sides, the conviction of the petitioner is altered from section 307, P.P.C. to section 326, P.P.C. as within the circumstances the act of the petitioner cannot be ranked as a full-fledged intentional act under section 307, P.P.C. As to the sentence there are extenuating circumstances. The petitioner remained confined before his conviction for about nine months and after conviction has served for three months. It will meet the ends of justice if the sentence is reduced to the period already undergone by the petitioner. It is ordered accordingly. The petitioner is to be released forthwith if he is not required to be detained in any other case. M.Y.H. Order accordingly.