' Learned Sessions Judge, Multan, vide judgment dated 15-6.1977, has convicted and sentenced appellant Abdul Aziz son of Muhammad Bakhsh aged 62 years, to imprisonment for life and a fine of Rs, 2,000 or in default further rigorous imprisonment for one year, under section 302, P. P. C. For having committed the murder of his co-villager -Muhammad Yaqub. The amount of fine, if realized, was to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P.
C.
2. Hence this appeal.
3. Facts o f the case as disclosed in F. I. R. (Exh. P. F.) recorded by Muhammad Aslam A. S. I. (P. W. 11) on the statement of Abdul Ghafoor (P. W. 7) on 14-11-1975 at 9-30 p.m. Can briefly be noticed thus :- On the fateful day in the morning there had been some altercation between Muhammad Aslam, brother-in-law of the appellant on one side and Muhammad Ahmad, deceased's nephew, on the other. The deceased and the appellant also took part in the altercation. The deceased insulted the appellant and gave him a shoe-beating. From reprisal to this, on ' the same evening the deceased while going in the company of his brother Abdul Ghafoor P. W. To his own house, was attacked by the appellant near the shop of Muhammad Afzal. He inflicted two dagger blows in the abdomen of the deceased. The latter fell down. Hue and cry raised by the complainant, attracted Khan Muhammad and Muhammad Afzal P. Ws. Who also witnessed the occurrence. Deceased succumbed to the injuries at the spot. Appellant succeeded in making good his escape.
4. Necessary investigations in the case were conducted by Muhammad Aslam A. S. I. (P. W. 11). He visited the spot; prepared injury statement Exh. P. H., held inquest and drew up report Exh. P. J. In respect of the deceased. Dead body was dispatched to the mortuary for post-mortem examination. He collected blood-stEtined earth from the spot and made into a sealed parcel vide memo. Exh. P. G. He arrested the appellant on 16-11-1975. Since the appellant was injured, he got him medically examined. Appellant while in custody, led to the recovery of dagger P. 5 from inside his kotha from underneath bags of wheat. It was taken into possession vide memo Exh. P. E. He got site plans Exh. P. D. And Exh. P. D./1 prepared from Abdul Hafiz Draftsman.
5. Dr. Muhammad Afzal Malik P. W. 3 conducted post-mortem examination on the dead body of Muhammad Yaqub deceased on 15-11-1975. He also medically examined Abdul Aziz appellant.
Deceased was found to have sustained two injuries (fully described in the judgment of the trial Judge) in the abdominal region. Walls of abdomen and peritoneum were penetrated against both the injuries. In the opinion of the doctor, death occurred due to shock and hemorrhage as a result of both the injuries which were sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem and caused with a sharp-edged pointed weapon. Probable duration between injuries and death was few minutes whereas between death and post-mortem about 24 hours.
' Appellant was examined on 16-11-1975. He was found to have sustained two contusions on the chest. Both the injuries were simple caused with a blunt weapon within the duration of 48 to 60 hours.
5-A. At the trial, appellant denied the recovery of chhura P.
5. However, he admitted the occurrence and stated :- "There was some quarrel between Muhammad Aslam and Muhammad Ahmad, in which Muhammad Ahmad was the aggressor and Aslam replied in the same terms and at that time I was not present. However, it appears that Aslam cOmplained and misreported facts to Yaqub deceased, who in retaliation and by way of aggression came in front of my house armed with a dang. He filthily abused me, on which my women-folk (wife, sister and mother) also came out of the house and the deceased called them by the words "behan chod" "maather chod" and other filthy language, showered abuses on them. The deceased in spite of repeated request did not contain himself and gave me two dang blows. I was in a rage and under grave and sudden provocation and in exercise of right of private defence, as he was aiming more blow on me, I caused him injuries with a knife, not Exh. P. 5, but the one which has not been exhibited in this case and suppressed by the police and thereafter a false case was concocted against me. All the witnesses are interested and belong to one family and are inimical towards me."
' He examined Dr. Riazuddin D. W. 1 in his defen.Ie who examined the former for his age in the jail.
6. Prosecution at the trial relied on ocular evidence given by Abdul Ghafoor (P. W. 7), Muhammad Afzal (P. W. 8) and Khan Muhammad (P. W. 9); the recoveries, the motive and finally the medical evidence.
7. Learned trial Judge accepted the prosecution case in its entirety. He rejected the defence pleas observing :- ' According to the doctor the injuries were so serious that he must have died only a few minutes after receiving the injuries. Obviously the deceased after suffering the injuries could not run and must have died on the spot and actually he died, as deposed by the eye-witnesses. Moreover the blood stains were not recovered from the place in front of the house of the accused nor was there any trail of blood from the point the deceased suffered injuries from the accused and to the point he fell down and died. All these factors strongly rule out the possibility or probability of correctness of defence version."
8. I have heard the learned counsel for the parties and have gone through the record of the case carefully with their assistance.
9. The only point that falls for determination in this case is if the defense pleas of the appellant stand established on record or if there are circumstances to warrant a conclusion that the same are reasonably plausible. As already noticed, appellant has pleaded that the deceased in the presence of the women-folk of the appellant, had abused him filthily and given him (appellant) dang blows. He (appellant) in the defence of his own person and under grave and sudden provocation in retaliation caused him injuries with a knife not exhibited in the case. He has denied the recovery of dagger P.
5.
10. As embodied in section 105 of the Evidence Act when a person is accused of any offence, the burden to prove the existence of circumstances bringing his case within any of the general exceptions of the Penal Code or within any special circumstance or proviso contained in any other part of the same Code or in any law defining an offence is upon him and the Court shall presume the absence of such circumstances. In the instant case appellant has come out with definite pleas in defence. He has examined only one witness, namely Dr. Riaz-ud-Din, Medical Officer. District Jail, Multan, in his defence. According to him appellant was aged about 60 years on 24-2-1977. He has led no evidence to, establish that the deceased had caused him any stick blows or had abused him immediately before the occurrence. Learned trial Judge has rejected the defence pleas taking the view that the occurrence did not take place near the house of the appellant as pleaded by him.
1 have therefore, gone through the evidence myself to find out whether there is a factual basis for accepting the defence pleas.
11. Motive for the crime is not seriously in dispute. Even the appellant has admitted the earlier incident of quarrel between Muhammad Aslam, brother-in-law of the appellant and Muhammad Ahmad, deceased's nephew, though with some reservations. According to him Muhammad Ahmad was at fault, but I feel this is not much relevant. The parties are further at variance to some extent- according to the prosecution both the deceased and the appellant took part when the matter regarding the altercation between Muhammad Aslam and Muhammad Ahmad was under issue in the dera of Nazir Ahmad P. W. But according to the defense deceased came to the house of the appellant to complain about the behavior of Muhammad Aslatn and abused the appellant and gave him stick blows who hit back in self-defense and under provocation.
' Prosecution has examined Nazir Ahmad (P. W. 6) on this aspect. According to him he was present at his dera at about Asarwela when the deceased complained to him about the quarrel between Muhammad Aslam and Muhammad Ahmad. He sent for the appellant. Deceased and the witness (Nazir Ahmad P. W.) had a talk with the appellant over the earlier incident. Deceased and the appellant, in the discourse, started abusing each other. Deceased gave shoe-beating to the appellant. The women-folk of the appellant, also, took part and abused the deceased who also abused them in return. The witness then learnt about the occurrence at about Maghrib prayer time.
He reached the spot and found the deceased lying in an injured condition. On an inquiry, deceased told him (the witness) that he was injured by the appellant. Learned trial Judge has disbelieved him on the aspect that he was informed by the deceased about his injuries. He has however been believed so far as he has deposed about the motive. Learned trial Judge has given sound reasons for his conclusion and I have no reasons to differ with him. Motive set up by the prosecution, therefore, stands established. This aspect of the case does not detain me any further.
12. As noticed earlier, prosecution has examined three persons as witnesses of the spot. Abdul Ghafoor (P. W. 7) is brother of the deceased while Khan Muhammad (P. W. 9) is distant relation of the two. Muhammad Afzal (P. W. 8) is however, an independent witness. They have given a consistent account of the occurrence. Abdul Ghafoor P. W. Has stated that neither he nor the deceased had any enmity with the appellant prior to the incident. He has stated :- "The accused had proclaimed that he had taken revenge of insult caused to him and disgrace caused to his women-folk. The accused was in rage at that time."
' Muhammad Afzal P. W. Has similarly stated :- "The accused had explained after the incident that he had taken revenge of insult to him and disgrace to his women-folk."
' This witness narrating actual occurrence has stated that at about sunset time appellant was coming from the side of the house of the deceased and when he reached near him "he gave two ehhura blows on his abdomen". I have therefore, no doubt in my mind that the occurrence took place in the manner as stated by the P. Ws. The incident of quarrel between Muhammad Aslam and Muhammad Ahmed, took place in early hours of the day. The matter was discussed at the dera of Nazir Ahmad P. W. At about Asar prayer time, where the appellant was given shoe-beating by the deceased. The parties also exchanged abuses in which the women-folk of the appellant took part. The deceased had also abused the women-folk of appellant. Injury on the person of the appellant has not been explained by the prosecution but, as held by the learned trial Judge, it can safely be presumed that the same were suffered by the appellant at the dera of Nazir Ahmad P. W.
The actual occurrence then took place at about sunset time. On the above finding, plea of self- defence raised by the appellant has no force and merits outright rejection.
13. The only aspect, therefore, to be seen is if the plea of grave and sudden provocation on the proved facts, should or should not prevail. Learned counsel for the appellant argued that the appellant is aged 60 years while deceased was comparatively of young age (40 years). Giving of shoe-beating by a young man to an elderly person was not an incident of ordinary, consequence and particularly, in our archaic rural society. Deceased, moreover, abused the women-folk, may be in return, of the appellant. Any person placed in such a situation could have been provoked to a degree where one loses power of self-control. Giving due regard to the aspect that village people often make mistakes while describing time with reference to other factors, such as, prayer time, Chhawela, Rotewela etc. it can, safely, be inferred that the occurrence immediately followed the incident of shoe-beating and there was no time gap within which the passion could cool down. He referred to Nusrat v. State (1) and Thirupathuran v. Emperor (2).
14. I have given a careful thought to this aspect of the case and feel inclined to hold that the plea of grave and sudden provocation set up by the appellant must succeed.
14-A. The indulgence which is shown by law in cases of grave and sudden provocation is a condescension to the frailty of human nature to the furor brevis, which while frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is committed. In recognizing provocation as a mitigation of the crime
(1) PLD 1967 SC 18 (2) A 1 R 1934 Mad. 722 ' law respects the infirmities and imbecilities of human nature. It recognizes it as a frailty because it is beyond its power to check or regulate. For, given sufficient provocation, men will act in defiance of the law. And law would be cruel and unjust if it attempted to punish men for acts done when they were themselves the victims of an irresistible impulse. These ar some of the basic principles which have received statutory recognition couched in Exception I to section 300, P. P. C.
' In the instant case there is nothing surprising that appellant being an elderly man was provoked when he was given shoe-beating by the deceased, a person comparatively of young age. The time gap also was not such within which the passion thus aroused could cool down. In Madras case deceased caught hold of the accused's tuft and the accused who in retaliation also caught hold of the tuft of the deceased and gave him stabbing, was held to have acted under grave and sudden provocation. In Nusrat's case the facts were that one Noora was seen in the company of Mst. Fateh, wife of the deceased in that particular case. He was given beating by the complainant two days later. Relations of Noora then attacked the complainant party within an hour and a half of the incident of beating. They were given benefit of this exception. It was observed :- '`If they had beaten him, when as they alleged they saw him in the company of Mst. Fateh Mai (wife of deceased) that would no doubt have been natural behaviour. But the beating was given on the 1st March 1963, two days later at a time when Noora had offered no offence to them. It could be said that they had taken it upon themselves to judge him and to inflict punishment on their own authority and that was an act of high-handedness which being accompanied by the infliction of serious injuries was of such a nature as to cause intense provocation to Noora's relations. The latter were by no means a weak body, and bearing in mind the character of th8 agricultural tribes of the Punjab, such conduct would be calculated to cause loss of control to the extent that the persons affected would be driven to acts of violence by way of retaliation. Between the injury to Noora and final attack, the time that elapsed, bearing in mind the distances appearing from the plan, could not have been in excess of an hour, and may well have been within half an hour. That is not a sufficient period of time in which a passion of the kind described above could be expected to cool down."
15. The result of the above discussion is that this appellant partly succeeds. Conviction of the appellant under section 302, P. P. C. Is altered to one under section 304, Part I, P. P. C. Keeping the circumstances of the case in view, I feel that it would meet the ends of justice if the appellant is sentenced to ten years' R. I. And a fine of Rs, 2,000 or in default further one year's R. I. I . The amount of fine, if realized, will be paid to the heirs of the deceased as compensation under section 544-A, Cr, P. C,