SHAMEEM HUSSAIN KADRI, J.-This is an appeal by Fazal alias Faja, who was tried along with Ghulam Mohy-ud-Din for the murder of Hashmat Ullah, by the Additional Sessions Judge, Lahore, who acquitted Ghulam Mohy-ud-Din but convicted the appellant under section 302, P. P. C. And sentenced him to transportation for life. He was also convicted under section 307, P. P. C. And sentenced to three years' R. I. For causing injuries to Samundar (P. W. 17). Both the sentences were ordered to run concurrently.
2. The facts of the case are briefly stated by Samundar Shah (P. W. 17), whose statement (Exh. P. E.) was recorded by Zahoor-ul-Hassan Farooqi, S. H. O. (P. W. 19) on 20-9-1965 at 7-15 p.m. In Mayo Hospital, Lahore. The occurrence took place on 20-9-1965 at 6 p.m. Near the hotel of Faqir, Mohammad (P. W. 15) in Dhobi Mandi, at a distance of 70 yards from old Anarkali Police Station.
Samundar Shah used to write letters while sitting on the foot path in front of the G. P. O. While Hashmat Ullah deceased sold some foodstuff there. Samundar Shah had lent rupees thirty to the appellant who along with Ramzan alias Gogar was residing in Dhobi Mandi. Both of them met him at 5-30 p.m. In Chowk G. P. O. Samundar Shah demanded his money and the appellant asked him to accompany them to the hotel of Faqir Mohammad so that he may take meals with them and get the money over there. Both Ramzan and the appellant left the place. Samulidar collected his papers and reached the hotel of Faqir Mohammad in the company of Hashmat Ullah deceased.
While Fazal and Ramzan were taking their meals Samundar picked up a plate of food lying in front of them and invited Hashmat Ullah to eat with. Him. The appellant losing his temper declared as to who was he to eat his meal. Both Samundar and Hashmat Ullah came out of the hotel and Fazal and Ramzan followed them. Fazal appellant started abusing, he pulled out a knife and gave a blow to the deceased. Samundar tried to intervene and received blow. It was alleged by Samundar Shah that in the meantime real brother of Fazal appellant came who gripped him and the appellant gave him 'the knife blow.
3. The occurrence was witnessed by Mohammad Ramzan brother of the deceased (P. W. 14), Faqir Mohammad (P. W. 15), Abdul Qadir (P. W. 16), Samundar Shah (P. W. 17) and Muhammad Ramzan alias Gogar (P. W. 18). The appellant was arrested on 21-9-1965 by Zahoor-ul-Hassan Farooqi (P. W.
19). On personal search of the appellant the S. H. O. Recovered blood--stained knife (Exh. P. 4), pant (Exh. P. 5) and shirt (Exh. P. 6). These articles were taken into possession vide Memo. Exh. P. D. The recovery memo. Was attested by Sohan Masih (P. W. 9) and Faqir Mohammad (P. W. 15): These articles were sent to the Chemical Examiner and the Serologist. The Chemical Examiner found all the articles stained with blood. The Serologist found that the blood-stains on these articles were disintegrated and their origin could not be determined.
4. Dr. Akhtar Hussain (P. W. 10) examined Samundar Shah on 20-9-1965 at 6-05 p.m. And found a stabbed wound on the left side of the chest on the posterior axillary line 1--" x --"; depth not explored. He declared the injury as grievous.
Dr. Nasib R. Awan (P. W. 11) performed post-mortem examination on the dead body of Hashmatullah on 21-9-1965 at 4 p.m. He found a stabbed wound 1--" x --" x chest cavity deep on the left side of the chest 4" from the left nipple lower and lateral side. He found the left pleura and left lung cut under the stab wound. The injury was sufficient to cause death in the ordinary course of nature. The probable the between the injury and death was within few minutes to an hour and between death and post-mortem examination within 36 hours.
5. Samundar Shah appeared before the committing Magistrate, but as his whereabouts could not be traced at the trial his statement recorded before the C. M. Was transferred to the Sessions file under section 33 of the Evidence Act. Muhammad Ashraf Foot Constable (P. W. 12) appeared at the trial and deposed that he visited Haripur (home town of Samundar Shah) and village Bhagra in search of Samundar Shah and asked his whereabouts from Lambardar Banaras Khan. He also visited Havalian Railway Station where Sadiq Shah brother-in-law of Samundar Shah resides. He further enquired from Dev Samaj Hostel as well as the G. P. O. About his whereabouts but with no success. Reliance was placed on Chutto and others v. The State (PLD 1958 Kar.. 18), and it was argued that the evidence of Samundar Shah, recorded before the committing raze Magistrate, was inadmissible in evidence under section 33 of Spat the Evidence Act. This case is distinguishable from the above case as in the former case the accused had not cross-examined Shah the witness whereas in the instant case Samundar Shah was subjected to cross-examination. Moreover, the statement of Mohammad Ashraf F. C. (P. W. 12) is much convincing. He did take all possible steps to trace out Samundar Shah both in Hazara District as well as in Lahore, but he could not find him. If the appellant had any knowledge about his address, as the learned counsel now contended before us that he had received letter from Hyderabad, he should have intimated the Court so that his statement could have been recorded at the trial. I am not persuaded to hold that Samundar Shah's evidence is inadmissible m the circumstances of this case. Learned Addl. Sessions Judge has not relied on the statement of Muhammad Ramzan (P. W. 14), the brother of the deceased, considering him as a chance witness. Even from his conduct that in his presence somebody else took the deceased in a rickshaw .To the hospital and he followed them, reflects the character of this witness. It was his bounden duty to have accompanied his injured brother in the conveyance to the hospital immediately to save his life. His evidence was rightly discarded by the learned Additional Sessions Judge. Faqir Mohammad (P. W. 15) is the hotel-keeper in whose hotel parties were present and there was exchange of abuses and grappling between Fazal accused and Hashmat Ullah deceased. ' He turned them out of the hotel. According to his statement Ramzan Gogar had taken the appellant in his grip and took him away followed by Hashmat Ullah deceased and Samundar Shah. At a distance of about 15 karams from his shop Faqir Mohammad saw that the appellant got himself freed from the grip of Ramzan who was preventing him from making any assault. Fazal appellant then took out the knife and gave blow to Hashmat Ullah deceased. The witness also saw the accused giving a blow to Samundar Shah. In my view the learned Public Prosecutor could not declare the witness hostile when he stated that he attested the memos of clothes and knife in the Police Station. These recoveries have not been relied upon by the learned Additional Sessions Judge and the mere fact that the witness described different venue of his signing the recovery memo should not have led the Public Prosecutor to the conclusion that the witness had become hostile. He has fully supported the prosecution story so far as the' occurrence goes and his evidence cannot be discarded altogether. Learned counsel has cited Mansur Ali and others v. The State (1970 P Cr. L J 287), and argued that the statement of such a witness should require corroboration. It is true that evidence of such a witness should be taken with caution but he is not a solitary eye-witness in the case. Abdul Qadir (P. W. 16) sells coal behind the oven of Faqir Mohan made which is situate on the other side of the road in front of his hotel. His name is not mentioned in the F. I. R. And it was strenuously argued that reliance should not be placed on his testimony. He is a natural witness of the occurrence and the person who lodged the F. I. R.' does not belong to the locality. He himself being an injured 'person mentioned the name o some witnesses, whom he knew. Since he does not belong to the locality, if he has not mentioned the name of Abdul Qadir (P. W. 16), in his statement that fact alone would not eliminate the statement of this witness, who in my view is a truthful and entirely disinterested person. Mohammad Ramzan alias Gogar (P.
W. 18) was in the company of the appellant and actually he had taken him in his grip. He tried to prevent him from assaulting the deceased with whom the appellant had grappled and exchanged abuses in the hotel of Faqir Mohammad grappled.
6. The next grievance was raised by learned counsel for not producing Abdul Khaliq at the trial, whose. Name was mentioned in the F., I. R. The inference which at the most can be drawn is that if he would have appeared he would not have supported the prosecution story.
7. Lastly, it was argued that the statement of Samundar Shah, even if it is found admissible, it conflicts with the medical evidence as in his statement before the C. M. He stated that the appellant caused to injuries to the deceased while in fact there is only one injury. Even if I discard the evidence of this witness there is sufficient evidence on record to implicate the appellant in the crime.
8. After perusing the evidence in 'the case the question now left for examination is as to what offence the appellant has committed in the circumstances of the case. Faqir Mohammad P. W. Has admitted that the appellant and the deceased both grappled in his shop and he turned. Them out along with others. It is in evidence that Ramzan Gogar was holding the appellant in his grip while Samundar Shah was keeping away the deceased. Even after going out of the shop the passions did not subside. Rather the parties exchanged abuses. Samundar Shah had Also, impleaded brother of the appellant in the crime who was acquitted by the learned Additional Sessions Judge.
The medical evidence also shows that Samundar Shah has exaggerated the part played by the appellant in order to show that the appellant had intention to kill since he deposed that to knife blows were given by the appellant to the deceased while in fact there was only one blow. It is true that Samundar Shah is an injured person and has received injury-at the hands of the appellant when he intervened between the appellant and the deceased. The appellant had no animosity against Samundar Shah. The situation which one can visualise in this case is that after the grappling by the accused and the deceased in the hotel of Faqir Mohammad, who were turned out by the proprietor of the hotel, the exchange of abuses continued and the passions in such circumstances would not cool but will obviously rise high. The case of the appellant in such circumstances, in my view, will come within Exception 4 to section 300, P. P. C. Admittedly it was a sudden affair and the quarrel ensued which resulted into grappling. The appellant cannot be said to have acted in a cruel manner as he gave only one injury to the deceased. The injury on the person of Samundar Shah, as I have already said, was not intended, but he perhaps received it while intervening between the deceased and the appellant. It cannot be said that, the appellant had acted in unusual manner. It would not be unnatural to assume that something more than exchange of abuses must have happened outside the hotel before the appellant brisked his knife on the deceased for it is known that the grappling had already taken place inside the hotel and both the deceased and the appellant were separated and held by the to different persons. The prosecution had tried to exaggerate the story by implicating another innocent person. It is, therefore, more likely that the suppression of some overt at on the part of the deceased is made in order to convert the incident into a heinous crime of premeditated murder. Different motives have been ascribed, one about the dispute of marriage of the deceased with Malka, the girl in whom the appellant was interested to marry and the other alleged by Faqir Mohammad, regarding dispute about some money, which the widow of the deceased owed, to the appellant. Be that as it may, it cannot be said to be a pre--meditated murder. The fight in this case clearly seems to be sudden and what had happened was the result of heat of passions.
In Muhammad Shafiq v. The State (PLD 1960 Lah. 339), a Division Bench of this Court has reviewed case-law on the subject regarding the applicability of Exception 4 to section 300, P. P. C. And come to the conclusion that grappling would come within the purview of fight. In Abdul Majid v. The Crown (PLD 1951 FC 304), it was held that "the words `undue advantage' and `cruel manner', which are used in the Fourth Exception to section 300 not in any, special signification but in their ordinary meaning; are not capable of any precise definition and no such definition has ever been attempted, obviously because whether a person can be said to have taken undue advantage or- acted in a cruel manner depends upon the circumstances of each particular case, and no general formula can be evolved which may be applicable to, all cases that may arise." This being the legal position, I am convinced from the evidence that in the circumstances of this case the appellant is entitled to the benefit of Fourth Exception to section 300, P. P. C. As all the three ingredients are present to entitle him r to the benefit.
9. I would, therefore, alter the conviction of the appellant from section 302, to section 304, Part II, P.
P. C. And reduce his sentence to seven years' R. I. The conviction and sentence under section 307, P.
P. C. Is maintained. Both the sentences are ordered, however, to run concurrently.
ATAULLAH SAJJAD, J.-I agree that the offence of the killing of Hashmatullah more appropriately falls within the ambit of Exception 4 to section 300 of the Pakistan Penal Code.
2. The evidence of motive in this case is diverse and does not carry conviction. It has also not- been proved that Ramzan Gogar was actually holding the appellant at the the of the incident in order to deter him from attacking the deceased. Faqir Mohammad stated at the trial that Gogar had caught hold of the appellant but he did not state so in his, statement before the police a copy of which is Exh. D. D. On the record. Abdul Qadir P. W. Stated that Ramzan was preventing the appellant from attacking the deceased but he did not say in so many words that he had caught hold of the appellant. The evidence further is that there was an argument between the deceased and Samundar Shah on one side and the appellant on the-other, and the argument and the exchange of abuse was still going on when the appellant attacked the deceased at a distance of fifteen karams from the hotel of Faqir Muhammad.
3. In considering as to whether the offence is covered by Exception 4 to section 300, P. P. C., the the between the fight and the fatal attack and presence or absence of malice constitute material considerations. The prosecution failed to prove malice in this case because the motive was not proved. The quarrel was sudden and there was grappling inside the hotel according to Faqir Muhammad P. W. Who also stated that the contestants appeared to be drunk. The appellant was already carrying the knife with him and did not purposely pick up from some place. In Rex v. Daniel Lynch (172 E R 5 Car. & P. 324), the prisoner and the deceased were old friends and were drinking in a public house before the occurrence. When they were together in the street, there was an argument followed by a scuffle during which the deceased struck the prisoner and gave him a black eye. The accused called for the police and on the arrival of a policeman he left the spot. He returned again after five or ten minutes and stabbed the deceased with a. Knife which was already in his possession. The injury proved fatal. Lord Tenterden in his summing up said that the determination of the matter as to whether the crime was murder or man-slaughter depended on the following factors
(i) How much the had elapsed between the blow and the fatal injury;
(ii) whether the injury was inflicted with an instrument at the moment in the possession of the accused or whether he went to fetch it from another place; and (i.e) whether there was any old grudge between the parties which motivated the fatal attack.
I have followed with great respect the above guidelines for the determination of the fact whether the offence committed is murder or culpable homicide. The sentence proposed is adequate.