' Appellant Muhammad Ali was tried by Sessions Judge (South), Karachi, for the offence under section 302, P.P.C. For having caused the death of Shah Muhammad by means of a Chhuri, who convicted and sentenced him to suffer life imprisonment and to pay a fine of Rs,10,000 (Rupees ten thousand) or in default to suffer R.I. For six months. Rs,5,000 (Rupees five thousand) out of fine, if recovered were ordered to be paid to the legal heirs of deceased Shah Muhammad as compensation, under section 544-A, Cr.P.C. The appellant has challenged his conviction and sentence by filing this appeal.
2. Complainant Jan Muhammad owned a hotel in Bakra Piri, Karachi. The appellant worked in the said hotel at the oven (Tandoor). Deceased Shah Muhammad worked in that hotel as waiter (Baharwala). On 16-1-1986 at about 12-15 p.m. There was rush of customers in the hotel. The appellant was, therefore, directed to supply bread (Nan) to the customers, who were taking meals in the hotel first. In the meanwhile deceased Shah Muhammad went to appellant and demanded bread (Nan) from him, who instead of supplying bread rebuked him. There was exchange of hot words between them and thereafter both of them grappled with each other. It is the case of the prosecution that in the heat of passion appellant Muhammad Ali picked up the `Chhuri' lying there and stabbed Shah Muhammad, who sustained injury near the armpit and fell down. He was rushed to Civil Hospital, Karachi, where he died. The incident was witnessed by complainant Jan Muhammad, Abdul Razak, Latif Shah and Essa. On the same day at 1-30 p.m. The report of this incident was lodged at Police Station Kalakot. Nasecr Ahmad S.I.P. Recorded the F.I.R. He rushed to the place of occurrence and arrested the appellant, who was present there. He secured blood- stained Chhuri at the pointation of appellant. The blood-stained clothes of the appellant were also recovered at the spot. All the blood-stained articles were sealed on the spot and were subsequently sent to Chemical Examiner, Karachi for report. After completing the investigation the appellant was sent up.
3. At the trial the prosecution examined Jan Muhammad (P.W.1), Essa (P.W.2), Abdul Razak Shah (P.W.3), Dr. Hamid Ali (P.W.4), Ali Muhammad (P.W.6), Muhammad Ranizan Tapedar (P.W.7) and Naseer Ahmad S.I.P. (P.W.8).
4. The appellant disputed the case of the prosecution in his statement recorded under section 342.
Cr.P.C. He also examined himself on oath and stated that Abdul Majeed, son-in-law of complainant Jan Muhammad was responsible for causing the death of Shah Muhammad, who was, however, let off and instead he was implicated falsely. The appellant did not examine any other witness in his defence.
5. On the assessm ent of evidence, the learned Sessions Judge found the appellant guilty for the offence with which he was charged and convicted him accordingly.
6. I have heard Mr. S.M. Sayedain Zaidi, learned counsel for the appellant and Mr. S.Z.A. Qureshi, learned counsel representing the State.
7. There is overwhelming evidence on record to prove that the appellant and none else was responsible for causing the death of Shah Muhammad. Faced with this situation, the learned counsel for the appellant has not disputed this position. He has simply contended that the incident took place all of a sudden without any premeditation in a sudden fight and only one blow by means of Chhuri was caused to deceased Shah Muhammad, which proved fatal, and therefore, the offence falls under the exceptions of section 300, P.P.C. The plea of sudden and grave provocation was also raised on behalf of the appellant.
8. Section 300, P.P.C. Defines culpable homicide amounting to murder and culpable homicide not amounting to murder. An attempt has been made on behalf of the appellant to bring his case within the purview of Exception I to section 300, P.P.C. Which reads as follows:- 'Exception , 1- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gives the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.-- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
9. The case of the prosecution as it stands shows that this unfortunate incident took place after deceased Shah Muhammad demanded a bread (Nan) for some outside customer. The appellant reacted not only sharply, but violently. There was then exchange of hot words which culminated into the stabbing of deceased Shah Muhammad. No doubt the provocation was sudden but not grave one. The provocation must be grave and its gravity will be measured by the deprivation of self-control in which it must have resulted. Except the demand of bread (Nan) and its insistence, there is nothing on record to show that it was a case of sudden and grave provocation. A person, who flies into passion without cause and kills a person, cannot defend his action on the ground of sudden and grave provocation. If such a plea is allowed, it would be made the legal cloak for unbridled passion and atrocious crime. On a plain reading of evidence the case of appellant does not fall within Exception 1 to section 300, P.P.C.
10. Mr. Zaidi, learned counsel for appellant has, however, submitted that the case of appellant falls within Exception 4 of section 300, P.P.C., which lays down:- "Exception 4.-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.-- It is immaterial in such cases which party offers the provocation or commits the first assault."
11. Para. 14 of the impugned judgment in fact lends support to the case as set out by the appellant before this Court. I cannot do better than to quote it in extenso:- "The upshot of the above discussion is that the prosecution has been able to prove the charge under section 302, P.P.C. Against the accused. The point which needs consideration is as to whether the accused should be awarded death penalty or he deserves leniency in the matter of punishment. I have given my anxious thought to this important aspect of the case. Admittedly the deceased and the accused both were co-workers in the hotel and there is nothing on record that they had any previous enmity with each other. There is no motive whatsoever alleged in the case for committing murder of the deceased. It has come in the evidence of the witnesses that the incident took place all of a sudden when the deceased had demanded 'Nan' from the accused, which he refused. This resulted into exchange of harsh words between the two and eventually both started fighting and grappling with each other. The accused on the spur of moment picked up a Chhuri which was lying in the store of the kitchen to be used for cutting onion etc. It was in the heat of that moment, the accused gave the single blow to the deceased, which proved fatal. The accused made no attempt to escape from the Wardat and remained in the hotel till he was handed over to police. He is a young man aged about 25 years, so also the deceased was of the same age. Looking to this background of the incident which was sudden flare up in which the accused inflicted a blow without any motive, I feel that a sentence of imprisonment of life shall meet the ends of justice."
12. The help of this exception can be invoked if, and only if, death is caused:-
(a) without premeditation;
(b) in a sudden fight, in the heat of passion upon a sudden quarrel;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed.
13. A bare reading of para. 14 of the impugned judgment would show that the case of the appellant falls within Exception 4 of section 300, P.P.C. Punishable under section 304, P.P.C. Mr. S.ZA. Qureshi, learned counsel for the State has also conceded to this position.
14. In view of what I have stated above the conviction of appellant is altered from 302, P.P.C. To 304, P.P.C. The appellant is sentenced to suffer R.I. For ten years and to pay a fine of Rs,5,000 (Rupees five thousand) or in default to suffer R.I. For three months. The fine if recovered be paid to legal heirs of deceased Shah Muhammad as compensation under section 544-A, Cr.P.C. The appellant is also extended the benefit of section 382-B, Cr.P.C. In counting the sentence.
15. With the above modification, the appeal is otherwise dismissed. .