' INAYAT ELAM KHAN, J.-Thee appellant, Gulzeb son of Roshan Din aged about 28/29 years, resident of Mahala Chouki Police, Hal ipur was tried for his brother-in-law Liaqat All son of Dost Muhammad aged about 33/34 the murder of years by the Additional Sessions Judge.II, Haripur and convicted under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs, 10,000 or in default whereof to further 2 years' simple imprisonment. It was also directed that out of the fine, if realized, half the amount is to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr. P. C. The appellant has cha'lenged his conviction and sentence by this appeal.
Muhammad Sadiq (complainant) has also filed Criminal Revision No, 8 of 1984 for enhancement of the sentence awarded to the appellant. We propose to dispose of the appeal as well as the criminal revision by this judgment.
2. The prosecution case as disclosed in the statement of Muhammad Sadiq (P. W. 3), brother of the deceased who also longed the First information Report, is that on 21.4-1982 at about 6.00 a. m. He alonwith his deceased brother went to the vegetable market, Haripur for purchasing vegetables, etc. While he was present at the shop of Munammad Ashraf and purchased a basket of `Lokat' from the said shopkeeper., The appellant came and enquired from Liaqat Ali deceased (who was married to Mst. Shamim Akhtar, sister of the appellant) as to why he had turned out his sister from the house after beating her. The deceased replied that on account of a dispute between the womenfolk of the house, Mi. Shamim Akhtar had left his house and gone to thehouse of her parents. The appellant then took out a dagger from the fold of his trousers and injured the deceased on the left side in the abdomen close to the ribs. On receipt of the injury the deceased fell down and the appellant ran away from the spot. 1he motive for the offence was that about 5 days prior to the occurrence some quarrel took place between the womenfolk on account of witich A9st. Shamim Akhtar, wife of the deceased, had gone to the house of her parents and this fact annoyed the appellant who was her brother. He stated that besides the quarrel of the womenfolk referred to above there was no enmity between the complainant party and the appellant. He further stated 'Nobody has injured the accused within my sight. It is incorrect to suggest that I and my deceased brother attacked the accused and caused him injuries and he in exercise of his right of self-defence inflicted a blow and injured the deceased". Muhammad Ashraf (P. W. 4) was also examined as an eye-witness to the occurrence. According to him, on the day of occurrence at 6- 30 a. m. Sadiq (P. W. 3) came to his shop and purchased a basket of 'Lokat'. In the meanwhile he saw the appellant and Liaqat Ali (deceased) altercating with eacti other at a distance of 10/12 paces from him. Sadiq (P. W.) reached neat them and the appellant took out a dagger from the fold of his trousers and injured the deceased. The deceased on receipt of the injury fell down and the appellant ran away from the spot. At that time his servant Yaqoob was also presented who had seen the occurrence. In cross-examination he stated that it was incorrectly recorded in his police statement under section 161, Cr. P. C. That the deceased and the appellant were grappling with each other. However, he stated that it correctly recorded in his statement under section 164, Cr. P. C.
That "Liaqat deceased, Gulzeb accused and Havildar Sadiq (complainant) were quarrelling with each other". He did not see the deceased and the complainant attacking or beating the accused and therefore, he could not explain the injuries sustained by the appellant. He also denied that the complainant and his deceased brother attacked the appellant and caused him injuries and the appellant in the exercise of the right of self-defence caused injury to the deceased.
3. Dr. Shaukat Ali (P, W. 9) performed the post-mortem examination on the dead body of Liaqat Ali (deceased) on 21-4-1982 at 9-30 a. m. And found a stab wound " on the left side of epigastrium entering the abdominal cavity and the omentum has come out of it. On internal examination he found the abdominal walls and peritoneum injured. Stomach and its contents grossly injured and empty. Small intestines left side injured. Mesanteric vessel left side also injured. Large intestines left colon and the spleen were also injured. According to the doctor the death was due to shock and haemorrhage on account of the injuries to the stomach, spleen and intestines caused by sharp- edged weapon and the injuries were sufficient in the ordinary course of nature to cause death. In cross-examination he stated that if timely surgical aid was provided the patient could have survived because the injury on the person of the deceased was not so much fatal. Again said that the injury was fatal and there was a possibility of survival if the medical aid had been provided to the patient in time.
4.. The accused when examined under section 342, Cr. P. C. Did not deny causing of the injury to the deceased but took the plea of private defence of his person. He stated that : "On the day of occurrence in the morning when I went to `Sabzi Mandi' the complainant and the deceased both met me there. The deceased asked me as to why I have detained his wife in my house. I replied that he may come and get her back. At this Muhammad Sadiq (P W.) and deceased both attacked me, grappled with me they gave me injuries with sharp and blunt weapons and were not going to spare me. Tinder the situation I was entitled to the right of private defence which I exercised and produced house knife straightaway to the Police. I had no intention to kill the deceased".
5. It may be mentioned that although the prosecution witnesses had described the weapon of offence used by the appellant as a dagger but the Chemical Examiner in his report described it as a 'house knife'. In view of the plea taken by the appellant the only question which requires determination is as to whether he has been rightly convicted under section 302, P. P. C. The learned counsel for the appellant contended that it was a case where the appellant after having been injured exercised the right of private defence of his person in view of the attack launched against him by Muhammad Sadiq (complainant) and the deceased and therefore, the appellant wat entitled to acquittal In the alternative it urged that it was a case of sudden fight between the complainant party and the appellant and therefore the case would fall within Exception 4 to section 300, P. P. C. Because the murder was committed without premeditation in a sudden fight in the heat of passion and upon a sudden quarrel without the appellant's having taken undue advantage or acting in a cruel or unusual manner. Particularly when he inflicted only one blow with a house knife and also sustained injuries on his person which remained unexplained by the eye- witnesses. It may be mentioned that the appellant was also examined by Dr. Noor Wahab Shah for the injuries sustained by him. But since the said doctor was not examined at the trial, he was summoned by this Court and examined as a witness. He stated that he had examined Guizeb appellant on 22-4-1982 at 10 a. m. And found the following injuries
(1) Multiple skin deep (superficial) sma ll incised wounds on epigastric.
(2) Bruise l'x 3! Into 1" x 4" on the back of knee (left).
' Injury No, 1 was caused by sharp-edged weapon and was simple in nature. Injury No, 2 was also simple but caused by blunt means. However, no corresponding cut marks were found on the clothes of the appellant. He deposed that in response to a query of A. S. I. Whether injury No, 1 could be self-inflicted, he had given the following opinion.
"It is possible that injury No, 1 could be caused by self-infliction."
' After the statement of the doctor the appellant was also examined who stated that after the incident he was summoned from his house by the Investigating Officer and he had changed his clothes which he was wearing at the time of the incident. Thus, it appears from the evidence that the appellant also sustained the aforesaid injuries in the incident in question. However, there is no cogent evidence that the appellant was attacked and injured by the complainant party before he attacked the deceased with a dagger or he was overpowered or beaten by the complainant party before he gave a blow with the dagger to the deceased. The plea of self-defence raised by the appellant finds no corroboration from the prosecution evidence and this plea, therefore, remains unsubstantiated. The doctor also opined that the injuries sustained by the appellant could possibly he self-inflicted, A The material on the record rather suggests that it was a case of sudden fight wherein the murder was committed by the appellant without premeditation in the heat of passion upon a sudden quarrel and in the circumstances, it cannot be said that the appellant had taken undue advantage or acted in a cruel or unusual manner. Therefore, we consider that the offence would be covered by Exception 4 to section 300 of the Pakistan Penal Code and hence punishable under section 304, Part I thereof. It was held in Nasiruddin Haider v. The Crown (1) that : "Nasiruddin appellant, when stabbing Abdullah Butt in the abdomen, had the intention of causing death or such fatal injury as was likely to cause death. But, because he did so in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner his case is covered by Exception 4 to section 300 and is punishable under section 304, Part I, Indian Penal Code. We would, therefore set aside his conviction under section 302, Indian Penal Code and sentence of death awarded to him."
' In Muhammad Saleem v. The State (2) the trial Court convicted the
(1) PLD 1950 Lah 171 (2) 1969 SCMR 653 appellant under section 304, Part II, P. P, C. And awarded him a sentence of 2 years' R. I. On the ground that "there is nothing to show that any formidable attack was made on the accused by the deceased, and it has already been seen that the injuries on his person were found to be very slight.
In any case as the quarrel suddenly arose without premeditation the question of self-defence would not arise. In the suddenness of the quarrel the accused must have fished out a knife and stabbed his uncle for which he must have become sorry afterwards as, he ran away without repeating the attack". The Hon'ble Supreme Court, however, came to the conclusion that the offence was covered by section 304, Part I and not Part II. It was observed that "Accordingly, upon careful consideration of all the facts and circumstances, we find ourselves unable, with respect, to accept the view of the facts which forms the basis of the decision by the High Court. We consider on the other hand that the case clearly falls, as found by the learned Sessions Judge, under Exception 4 to section 300, Pakistan Penal Code and consequently the offence falls to be punished under section 304, P. P. C. Of which we consider that Part I and not Part II is correctly applicable. The sentence awarded by the trial Court is evidently disproportionately light. A knife blow in the stomach is generally fatal, and known to be so. Such a blow struck at a senior relative, even in the course of a sudden fight, which results in the death of the victim, requires to be punished with a substantial sentence of imprisonment.
' For these reasons, we allow this appeal, and setting aside the conviction by the High Court, we replace it with the conviction under section 304 (I), P. P. C. And impose a sentence of seven years' rigorous imprisonment."
Respectfully, following the rule laid down in the cases cited above and keeping in view the evidence and the circumstances of the case in hand we have come to the conclusion that the offence committed by the appellant would fall within the meanings of section 304, Part I of the Pakistan Penal Code. Therefore, by partially accepting the appeal the conviction of the appellant is altered from section 302 to the one under section 304, Part I, P. P. C. And the sentence of imprisonment is reduced to 7 years' R. I. The sentence of fine is also reduced to Rs, 5,00J and in default of payment thereof, the appellant shall undergo one years R. I. He is further directed to pay compensation of Rs, 5,000 to the heirs of the deceased under section 544-A, Cr. P. C. Or in default to undergo 6 months' simple imprisonment. The appellant shall be entitled to the benefit of section 382-B of the Criminal Procedure Code.
7. The appeal, therefore, stands partially accepted and the Criminal Revision for enhancement of the sentence automatically fails which is hereby dismissed.