MUHAMMAD RAFIQ TARAR, J.- Meraj Din son of Faqir Muhammad, resident of Street No.Ll, Main Bazar No.3, Raza Abad, Faisalabad, was tried by the Additional Sessions Judge, Faisalabad, on the allegation that on 11.6.1983 at 7.45 p.m. He committed the murder of Abdur Rashid in street No.13 of Mohallah Raza Abad, Faisalabad. By judgment dated 10.2.1985 he was convicted under section 304 Part 11 of the PPC and sentenced to R.I. For seven years and a fine of Rs.2000/-, or in defauIt in the payment thereof to undergo R.I. For one year. He was also ordered to pay Rs.5000/- as compensation to the legal heirs of the deceased. The benefit of section 382-B of the Cr.P.C, was declined. Muhammad Rafigue complainant has filed Cr. Revision No.486 of 1985 praying that the acquittal of the accused under section 302 PPC may be set aside and maximum punishment provided by law be awarded to him, or the case be sent back for retrial under section 302 PPC.
2. .The brief facts of the prosecution case are that on 11.6.1983 at 7.45 p.m. Imdad Ali PW saw Meraj Din accused and Abdur Rashid deceased abusing each other in street No.12, Main Bazar No.3 of Mohammad Raza Abad. He rushed to the house of the deceased and apprised his brother Muhammad Rafiq complainant of the situation. The complainant is a resident of Ghulam Muhammad Abad and had come to the house of the deceased to see his sister. He rushed towards the place of occurrence in the company of Imdad Ali. Ghulam Muhammad PW met them on the way. When they were at a distance of 5/6 karams from the place of occurrence, Meraj Din accused gave a chhuri blow to the deceased causing injury1 on his left side and ran away. Abdur Rashid was immediately taken to the Hospital. He was examined and declared dead.
Leaving the deadbody in the Hospital, Muhammad Rafiq complainant started for the Police Station.
On the way Muhammad Hanif, Sub-Inspector, met him at Tariq Mor and he reported the occurrance to him at 9.15 p.m. Vide his statement F.x.PB, on the basis of which formal FIR Ex.PB/1 was recorded at the Police Station at 9.25 p.m.
3. After recording the statement of Muhammad Rafiq complainant, the S.I. Reached the Hospital. He prepared the inquest report Ex.PH of the deadbody and handed it over to Akhtar Hussain constable.
Then he reached the place of occurrence and secured some blood stained earth vide memo Ex.PF.
The accused was not available. He was declared a proclaimed 'offender. Malik Habib, D.S.P.(PW.10) arrested him on 24.10.1983. After the investigation he was challaned.
4. On 12.6.1983 Dr.A.A.Khalid, S.M.O., District Headquarters Hospital, Faisalabad, conducted postmortem examination on the deadbody of Abdur Rashid deceased and found a stab wound 3 cm x 1cm x chest cavity deep on front left chest at 5th inter costal space going slightv downward and forward. In the opinion of the doctor death was due to shock and haemorrhage resuIting from the above injury which was sufficient to cause death in the ordinary course of nature.
5. In suport of its case the prosecution examined three eye witnesses, namely, Muhammad Rafiq, Imdad Ali and Ghulam Muhammad.
6. The accused pleaded not guiIty to the charge and denied the prosecution allegations against him. He maintained that he was involved due to enmity. No evidence was led in defence.
7. After examining the evidence on the record, the trial Judge came to the conclusion that presence of Ghulam Muhammad (PW.8) at the spot was doubtful but that of Imdad Ali (PW.7) was possible, and presence of Muhammad Rafiq (PW.6) in the house of his father was "well explained."
Summing up the discussion of evidence, he observed that possibility might be that when the accused saw Muhammad Rafiq PW returning towardas him, he tried to slip away to avoid possiblity of being beaten "by the deceased and his brother. He was heated up and provoked. He picked up chhuri from any of the surrounding shop and gave single blow to the deceased............................ "
He, therefore, came to the conclusion that the accused was guiIty under section 304 Part II of the P.P.C. Accordingly, he convicted him thereunder and sentenced him, as mentioned above.
8. The main argument of the learned counsel for the petitioner was that the observation of the trial Judge that the accused picked up the chhuri from any of the surrounding shops was wholly conjectural as there was absolutely no evidence on the record to that effect. He further submitted that the trial Judge failed to consider the evidence on the record that a quarrel had taken place between the accused and the deceased two days prior to the occurrence, therefore, it was not a case of sudden quarrel and the offence committed by the respondent clearly falls under section 302 of the P.P.C.
Learned counsel for the respondent submitted that the evidence on the record has been correctly appreciated by the trial Court and the respondent has already served out his entire sentence, therefore, no interference with the impugned judgment is called for. The learned State counsel also supported the impugned judgment.
9. The motive alleged by the prosecution was that the accused owed Rs.100/- to the deceased and two days prior to the occurrence a quarrel had taken place between them over that amount. There is, however, not an iota of evidence on the record to support this version. Muhammad Rafiq complainant stated that two days earlier he was informed by his mother that a quarrel had taken place betwen the deceased and the accused over the disputed amount. Neither the mother of the deceased nor any person who had witnessed the incident was examined by the prosecution to support that version. Imdad Ali PW stated: "This quarrel took place on dispute of Rs.100/- which Meraj Din owed to the deceased." He too did not claim to be an eye witness to the "dispute of Rs.100/-." In examination-in- chief Ghulam Muhammad PW stated that the fight took place on account of demand of Rs. 100/- by the deceased from Meraj Din accused. In cross- examination he stated that somebody had told him that a quarrel had taken place between the accused and the deceased two days before the occurrence. There is thus no legal evidence on the record to support the version that a quarrel had taken place between the accused and the deceased two days prior to the occurrence. The motive alleged by the prosecution remains unsubstaintiated.
10. The prosecution version of the occurrence is supported by three eye witnesses, namely, Muhammad Rafiq complainant, Imdad Ali (PW-7) and Ghulam Muhammad (PW.8). It is true that the observation of the trial Judge that the respondent picked up a chhuri from any of the surrounding shops is not supported by any of evidence. However, this fact cannot improve the case of the complainant/petitioner because the evidence available on the record clearly attracts Exception IV to section 300 of the PPC. It is Prosecution's own case that before the infliction of chhuri blow, the deceased and the accused were quarrelling and exchanging abuses. Imdad Ali PW.7 stated that he saw the accused and the deceased abusing each other and he immediately went to the house of the deceased and informed his brother Muhammad Rafiq complainant that they were abusing each other. In cross-examination Ghulam Muhammad (PW.8) stated that people gathered "around the deceased and accused but no body was interfering in separating them." This statement indicates that the accused and the deceased weregrappling with each other. In examination-in-chief he stated:".......... Rashid fell down on the ground faced downaward. This fight took place on account of demand of Rs.100/- by Abdur Rashid from Meraj Din." The afore-referred pieces of evidence clearly indicate that it was case of unpremeditated assauIt committed in the heat of passion upon a sudden quarrel. The respondent gave only one blow to the deceased, therefore, he cannot be said to have taken any undue advantage or acted in a cruel or unusual manner. In the circumstances Exception IV to section 300 of the f.P.C. Is attracted to the facts of this case and no intereference in exercise of revisional jurisdiction of this Court is called for. This petition is, therefore, dismissed.