1. MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against judgment, dated 23rd March, 1982, of the Lahore High Court; whereby the appeal filed by Muhammad Fayyaz appellant and his brother Muhammad Abbas from former's conviction and sentence of death and a fine of Rs.5,000 under section 302 and under section 323, P.P.C. To months'
2. R.I.; and of the latter under section 323, P.P.C. With a sentence of one month's R.I., was dismissed except with the modification that appellant's sentence of death under section 302, P.P.C. Was reduced to life imprisonment.
3. Briefly stated the facts are that Mst. Gulzarda daughter of D.I Bahar was married to Muhammad Fayyaz appellant. A day before the occurrence which took place on 24-9-1978 at 7-30 a.m. She had gone to her father's house on account of some estrangement with Muhammad Fayyaz. He being a Soldier in the Army was on leave which was to expire on the day of occurrence and he was to return to his place of duty. He together with his brother (his co-accused Muhammad Abbas) went to the house of his in-laws to bring back his wife and a daughter of tender age. The request of Muhammad Fayyaz in this behalf was declined by D.I Bahar, his father-in-law. Some discussion ensued between the appellant, his brother on the oneside and D.I Bahar P.W. His son Muhammad Nawaz P.W. And his stepson Muhammad Gulfraz deceased on the other. The parties also abused each other. This was followed by further altercation during which Muhammad Fayyaz pulled out a knife from his Dubb and stabbed Gulfraz in his abdomen. Muhammad Abbas is stated to have pelted the stones at the to P.Ws. Who suffered minor injuries. Gulfraz was taken to hospital where he made a statement implicating both Muhammad Fayyaz and Muhammad Abbas as stated above.
4. During the investigation Muhammad Fayyaz led to the recovery of e blood-stained knife. At the trial the prosecution led evidence of ocular account and the statements of D.I Bahar and Muhammad Nawaz P.Ws. As also the dying declaration and recovery of knife. The defence plea as contained in the statement of Muhammad Fayyaz was as follows:- "On 24-9-1978, at 7.30 a.m. I went to the house of my father-in--law and asked D.I Bahar P.W. To send Mst. Gulzarda with me. Gulfraz deceased and D.I Bahar P.W. Refused to send her with me saying that 1 had beaten her. They started abusing me. I returned the abuses. They attacked me and felled me down. Gulfraz deceased was holding a knife in his hand. 1 snatched away the knife from him and I started running towards my house. Gulfraz deceased chased me and caught hold of me from my neck. He again felled me down and throttled me. At that the, he was sitting on my chest. At that the I gave a knife blow in his abdomen in exercise of my right of self-defence. Abbas accused was not with me at that the."
5. Both the learned Courts below rejected the defence version and while accepting the ocular account given by the to eye-witnesses though the dying declaration and the recovery evidence were not relied upon, convicted and sentenced the accused as noted above.
6. Leave to appeal was granted to Muhammad Fayyaz convict only to examine "whether it was not a case of Exception IV to section 300, P.P.C. As only one knife blow was inflicted by Fayyaz and there are some indications that it was preceded by altercation and fight". The conviction and sentence of both the convicts under section 323 was maintained in the leave granting order. Accordingly Muhammad Abbas's case is not before us now.
7. Learned counsel for Muhammad Fayyaz has taken us through the relevant parts of the evidence, in support of his plea that it was a sudden fight wherein the appellant inflicted a solitary blow without premeditation therefore the case fell under section 304, Part-1.
8. Both the eye-witnesses admitted that there was exchange of abuses between the appellant and the deceased. It is further admitted that they had declined the request of the appellant to send with him his wife and daughter. While one of them gave some justification for this extraordinary treatment to a son-in-law by asserting that he had given a beating to his wife on previous day; the other stated that the cause of estrangement between the spouses was unknown. Therefore, it cannot be reasonably presumed that there was no serious rift between them. Hence the unjustified denial of the eye-witnesses and the deceased with regard to the right of the appellant to take away his wife and minor child, must have upset him emotionally. He was also physically assaulted.
9. All this could also give rise to the examination of the questions relating to the exercise of the right of private defence and whether it had been exceeded. But it is not necessary to examine- them in detail because it being in reality a case of application of Exception IV to section 300, the question of self-defence as would be shown presently, becomes insignificant.
10. Enough material has been found on record to support the plea of the learned counsel for the appellant that it was a case of sudden fight covered by Exception IV to section 300, P.P.C. Althought both the eye-witnesses denied that D.I Bahar had during the altercation, physically assaulted and pushed away the appellant but they were confronted with their police statements wherein both of them admitted this assertion, made from the defence side during the cross-examination. Not only this, D.I Bahar P.W. Admitted under cross-examination that after the initial abuses and altercation the deceased and the appellant grappled with each other. And it was at that very moment, meaning thereby during the grappling, that Fayyaz appellant pulled out a knife from his Dubb and inflicted the solitary blow on the deceased.
11. In the circumstances of the case there was no premeditation. The appellant to start with, had no intention to assault the deceased. If there would have been no altercation and no grappling the tragedy might not have occurred. The High Court also found that there was no premeditation. It appears that the admission of D.I Bahar P.W. Regarding grappling was not paid due importance.
12. Undoubtedly, it was a case of sudden fight between the to sides in the heat of the passions upon a sudden quarrel relating to the return of the wife and daughter of the appellant. Therefore, all the conditions in the first part of Exception IV to section 300 are undoubtedly satisfied.
13. Learned counsel for the State however tried to argue that the appellant took an undue advantage of the deceased being an unarmed person, therefore, this aspect of the case would take it out of Exception IV to section 300, P.P.C.
14. We do not find any force in this argument. The appellant was faced with three adult male members of his in-laws family who were all quarrelling and fighting with him. In that context it would not make much difference as to who actually grappled with whom. In any case, to of them had already used force against him when he pulled out the' knife. In these circumstances it can neither be said that he had taken undue advantage by inflicting a solitary blow on the person who had grappled with him or that he would not be entitled to the right of private defence although he might have exceeded the same. But in view of the fact that Exception IV to section 300 is attracted to this case, it is not necessary to examine the question of self-defence because, the explanation to Exception IV provides that it is immaterial in such like cases as to which party offers the provocation or commits the first assault.
15. Looked at in the above light this case is fully covered by Exception IV to section 300, P.P.C. The appellant therefore was not guilty under section 302, P.P.C. Instead he should have been convicted under section 304, Part-1. This appeal is allowed. The conviction and sentence of the appellant under section 302, P.P.C. Are set aside. He is convicted under section 304, Part-1. The appellant is awarded sentence of 10 years' R.I. And a fine of Rs.5,000 under the altered provision of law. In default of payment of fine he shall suffer one year's R.I. He shall also be allowed the benefit of section 382-B, Cr.P.C. The entire amount of fine when realised shall be paid as compensation to the heirs of Gulfraz deceased.