1. M. R. KHAN, J.-Muhammad Munir, the first respondent (hereinafter called the accused) was tried under section 302 of the Pakistan Penal Code by the Additional Sessions Judge, M. R Lahore, for committing the murder of Mumtaz Beg. He was Khan convicted under the said section and sentenced to transportation for life and a fine of Rs. 1,000 and, in default of payment of the fine, to further rigorous imprisonment for four years. It was directed that half of the fine, if realised, should be paid to the heirs of Mumtaz Beg, deceased. On appeal, a learned Single judge of the former High Court of West Pakistan, Lahore, altered the conviction of the accused from section 302 to Part I of section 304 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for five years.
2. The prosecution case, briefly stated, was as follows:- The accused and the deceased who were on friendly terms were playing, the game of carom on the 10th November, 1963, together with Ateeq (P. W. 10) and Zafar Ali (P. W. 11). Of them, the accused and Ateeq were the partners on one side and the deceased and Zafar Ali were the partners on the other side. During the game, the accused disturbed the position of one of the carom pawns belonging to their opponents. At this, the deceased became annoyed and asked the accused to replace the pawn in its original position, but the accused refused to do so. This gave rise to a quarrel between the accused and the deceased in the course of which there was exchange of abuses. Ateeq and Zafar Ali intervened and separated them., At the end of the quarrel, the deceased threatened the accused not to visit Anarkali any more to which the accused reached sharply saying that he had no fears and would visit Anarkali. This incident took place some time during the day-time on the 10th November, 1963, but the exact time has not come on the record.
3. On the same date, at about 8 p.m., the deceased, who had earlier gone to Mumtaz Hotel at Anarkali, came out of that hotel, accompanied by Abdul Wahid (P. W. 17) and one Javed Mir. They then saw the accused standing on the foot-path in front of Mumtaz Hotal, at a distance of about six paces from there. On seeing the deceased, the accused told him that he had come to take revenge for the insult hurled at him earlier the same day. So saying, the accused took out a knife and stabbed the deceased on the chest and ran away. At a result of the stab injury, the victim died on the spot. Abdul Sajid (P. W. 16), a cousin of the deceased then proceeded to the New Anarkali Police-station at a distance of one furlong and lodged the First Information Report at 8-30 p. m.
4. Alleging that the accused was the . Killer of Mumtaz Beg.
5. On the post-mortem examination of the dead body of the victim, the doctor found the following injury:- "One stab wound 1" x --chest cavity deep on the left chest 11 from the left nipple."
6. This injury was found to have cut the heart and the left lung. Death, in the doctor's opinion, was due to that injury.
7. The accused appeared before the Ilaqua Magistrate on the next day of the occurrence and surrendered himself to custody. At the trial, he admitted that two successive incidents on the 10th November, 1963 as alleged by the prosecution and further admitted to have stabbed the deceased with a knife, but claimed to have inflicted that injury in self-defence.
8. During investigation, the police recovered a blood-stained knife from an obscure place on the pointing out of the accused and removed from his person his blood-stained trousers. These were found on examination by the Serologist to be stained; with human blood.
9. The prosecution relied on the direct evidence of five eye-- witnesses (P. Ws. 16 to 20) and the recovery of the blood-stained knife and trousers and also on the admission of the accused as to the infliction of the stab injury by him. Both the trial Court and the High Court were satisfied on the evidence on record that the accused was responsible for the death of Mumtaz Beg, deceased. But they differed with regard to the nature of the offence committed. The trial Court rejected the defence plea of self-defence and was of the view that this was a case of murder. The learned Single Judge, however took the view that the accused inflicted the fatal injury to the deceased in the exercise of his right of private defence, but he exceeded that right and, in that view of the matter, altered his conviction from section 302 to Part I of section 304 of the Penal Code.
10. The appellant Masoom Beg, a brother of the deceased obtained leave to appeal against the judgment and order of the High Court. The only point for consideration in this appeal is whether, on the materials on record, the learned Single Judge of the High Court was justified in altering the conviction of the accused from section 302 to Part I of section 304 of the Penal Code.
11. In his statement under section 342 of the Code of Criminal Procedure, the accused said that, during the first incident over the game of carom, the deceased called-him catamite and told him not to visit Anarkali and that when he asserted his right to visit that area, there was exchange of blows.
12. With regard to the second incident, he made the following statement: "Yes, I stabbed him (deceased) but he asked for it because first he used dirty language on seeing me and then went away towards the hotel to fetch a chhuri. I likewise did the same and stabbed him. If I had not done it I would have been killed by him."
13. In his defence, the accused filed also a written statement (Exh. D. B.) which was substantially the same as his oral statement. This was as follows: "On the day of the occurrence I was present in Anarkali Bazar, Mumtaz Beg met me near Mumtaz Hotel, who as soon as he saw me told why I had come to Anarkali when he had forbidden my entry there. I told him that Anarkali did not belong to his father and that I must come (there). This is a public road. Thereupon, Mumtaz Beg described me as a catamite and uttered abusive epithets about my mother and sister. I also abused him in reply. Thereupon, we grappled with each other.
14. Mumtaz Beg ran to the stall outside Mumtaz Hotel and picked up a chhuri, and I also picked up a chhuri from there. Mumtaz Beg made an assault on me. He was stronger than I. In order to save myself, I caused him an injury. Otherwise he would have killed me. I am innocent."
15. Of the five eye-witnesses, both the Courts below declined to rely on the testimony of P. W. 18 Shakir Khan. P. W. 16 Abdul Sajid, who had lodged the First Information Report, stated in cross-examination as follows: "It is correct that on seeing the accused the victim said why he had come to Anarkail despite the prohibition pronounced against him by the deceased. On this, altercation ensued which lasted 2/3 minutes. Even abuses were exchanged. I am not in a position to refute that altercation was a result of asser--tion by the accused that Anarkali was a public street and the deceased was nobody to stop him, but this must have been the sequence. Thereafter severe words were exchanged. The quarrel took place in front of Mumtaz Hotel. It is fact that for 2/3 minutes accused and the victim grappled with each other. I did see the dagger falling from the hand of the accused. Mumtaz Restaurant is about 3/4 feet from the place of fight."
16. The trial Court was unwilling to give any credit to the above statement of this witness in the belief that he had deliberately yielded in cross-examination in order to help the defence. The learned Single Judge, however, found no reason to discredit the said statement of P. W. 16 Abdul Sajid as he was not only the informant but was also a cousin of the deceased. It appears that even in his examination-in-chief this witness admitted the grappling and struggle between the accused and the deceased in the course of which the knife blow was given by the accused. His admission in examination-in-chief was as follows: "As the accused and the victim came face to face they grappled and in the struggle the accused took out the chhuri to stab the victim. The blow was received on the left side of the chest in the front portion."
17. P. W. 19 Zaheer, no doubt, denied the defence suggestion that the accused and the deceased grappled before the infliction of the knife blow. But his statement in examination-in-chief itself supported the remonstration by the deceased at the sight of the accused and exchange of abuses between them. He said: "The victim on seeing the accused said that why he had come to the place again despite the prohibition pronounced. The accused said that he was no longer his previous self and would visit the place. At this, they started exchanging abuses and then accused took out the chhuri from his pocket to give the fatal blow on the chest of the victim who fell down.".
18. P. W. 2O Taj Din, the last eye-witness; Made the following statement in cross-examination : " I did over-hear the deceased telling the accused that why he had come to Anarkali despite his prohibition.. I also heard the accused asserting his right to come and then the abusive language that was exchanged between the two. Then the two grappled. The entire event finished in about two minutes."
19. The evidence of these witnesses as discussed above clearly shows that on seeing the accused, the deceased remonstrated as the former had gone to Anarkali despite his prohibition and that they exchanged abuses and grappled, too. It is also clear from the evidence that it was only in the course of the grappling that the accused stabbed the deceased. Apparently, the fatal blow was inflicted without premeditation in a sudden quarrel in the heat of passion. Learned counsel for the appellant submits that the accused went to Anarkali with the deliberate intention to kill the victim and that this can be inferred from the fact that he went there armed with a knife. 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 went there despite the prohibition of 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 4J inches in length and its 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.