Bashir Ahmad, aged 21 years, has been convicted under section 302, P. P. C. And sentenced to transportation for life and a fine of Rs. 2,000 or in default to suffer two years' R. I. Vide judgment dated 14-5-1971 of the --Sessions Judge, Lahore. It was directed that the amount of fine, if realised, be paid to the heirs of the deceased, Zahur Ahmad. The appellant has filed this appeal through Jail.
2. The occurrence is reported to have taken place on 8-6-1970 at 7 p.m. In main Bazar, Shahdara.
Lahore, at a distance of 11 miles from Police Station, Shahdara. Abdur Rauf (P. W. 10) made the statement (Exh P. A.) on 8-6-1970, at 7-45 a.m., which was recorded by S. I. Ghulam Rabbam (P. W.
17), at the spot and the formal F. I. R. (Exh. PA/1) was recorded by A. S. I. Muhammad Nazar (P. W. 4) on the same day at 7-55 a.m. At Police Station Shahdara.
3. The motive for the offence as asserted in the statement is that Zahur Ahmad deceased had told Bashir Ahmad accused not to visit their houses as the deceased had grown up daughters and the accused was a man of bad character.
4. The occurrence is stated to have taken place in the following manner as stated by Abdur Rauf (P.
W. 10), that since the creation of Pakistan he was running a milk seller shop. Zahur Ahmad deceased had on two or four occasions had asked the appellant, who was a man of bad character, not to visit their houses as his daughters were grown up. On the day of occurrence at 7 a.m. Zahur Ahmad was coming in the Bazar and when he reached near the shop of his brother, Maqsud Ahmad alias Kaka, he came across Bashir Ahmad accused. Zahur Ahmad deceased asked him as to why he had come to that side and this led to an altercation between the accused and the deceased and they were separated by the shop keepers. Zahur Ahmad deceased came to the shop of Abdur Rauf complainant. The deceased bad a packet of spices which he placed on the shop of the com--plainant and started tightening his loin-cloth. In the meantime, Bashir Ahmad accused reached there armed with a Chhuri and inflicted a blow in the abdomen of Zahur Ahmad and felled him to the ground. The occurrence was witnessed by Muhammad Sadiq (P. W. 12). Abdur Rauf complainant jumped down from his shop and apprehended the accused with the Chhuri.
Shortly afterwards Maqsud Ahmad (P. W. 15), brother of the deceased, also reached the spot and he alongwith Imdad A.I P. W. Carried the deceased to the hospital.
5. S. I. Ghulam Rabbani (P. W. 17) reached the spot on learning about the present occurrence and recorded the statement of Abdur Rauf P. W. And sent it to the police station for the registration of the case. Abdur Rauf P. W. Produced the accused alongwith the Chhuri (P. 1.), which was blood- stained, which the Sub-Inspector took into possession vide memo. Exh. P. B., attested by Nazir Ahmad (P. W. 8), Abdul Ghani (P. W. 9) besides the Sub-Inspector himself. The accused had injuries on his parson. He was arrested by the Sub-Inspector and his injury statement was prepared and then sent to the doctor for medical examination. According to the report of the Serologist, Chhuri (P. 1) was found to be stained with human blood.
6. Dr. Nusrat Ullah (P. W. 11) on 8-6-1970 at 6.30 p.m., conducted the post-mortem examination on the dead body of Zahur Ahmad and found a stab wound 2-- ' x 1' left side abdomen upper part situated trans--versely. Omentum was coming out. Small intestine was cut at two places. There was cut in right common iliac vein. Abdominal cavity was full of blood.
The cause of death, in the opinion of the doctor, was haemorrhage and shock as a result of the injury to the abdomen which was sufficient to cause death in the ordinary course of nature. The injury was caused by a sharp---edged pointed weapon. The deceased died within one hour after the receipt of the injury. The duration between death and post-mortem examination was above 12 hours.
7. The same doctor medically examined Bashir Ahmad appellant and found one incised wound --' x 1/8' skin deep right hand thumb and three abrasions. The injuries were simple. Injury No. 1 was caused by a sharp --edged weapon while No. 2 by a blunt weapon. The doctor has also stated that injury No. 1 could result with Chhuri (P. 1) in case he had attacked the deceased.
8. The appellant denied his guilt and stated that he did not know as to why this case has been made against him. He did not produce any defence.
9. I have heard the appellant, who was produced in Court in custody, and also the State counsel and have gone through the evidence on record. The ocular evidence has been furnished by Abdur Rauf (P. W. 10), Muhammad Sadiq (P. W. 12), Muhammad Hafeez (P. W. 13) and Imdad A.I (P. W. 16).
All these eye-witnesses are residents of the locality and they are not in any way connected with the deceased or against the appellant. Abdur Rauf, Muhammad Sadiq and Muhammad Hafeez P. Ws.
Are shopkeepers and their shops are situated in the main Bazar, Shahdara, where the occurrence had taken place. Muhammad Sadiq P. W., has stated in his examination-in chief that the deceased came to the shop of Abdur Rauf P. W. Uttering abuses and harsh words towards the appellant and that the accused gave only one blow to the deceased with Chhuri in his abdomen. The witnesses have stated that the appellant was apprehended at the spot by Abdur Rauf P. W. Alongwith the Chhuri. All the P. Ws have denied the suggestion by the defence that the accused acted in his right of self-defence of his person. The names of the eye-witnesses find mention in the F.I.R. Which was promptly lodged and, therefore, their presence at the spot cannot be doubted. Even Maqsood Ahmad P. W., brother of the deceased, stated in his examination-in-chief that the accused and the deceased started quarrelling with each other and some persons separated them. The deceased then left for the shop of Abdur Rauf P. W. The deceased went on abusing the accused and the accused stayed at his (the witness) shop. He further stated that the accused went after the deceased. Shortly afterwards the witness learnt that his brother Zahur Ahmad had been stabbed.
On reaching the spot the witness noticed that Abdur Rauf P. W. Was holding the accused with the Chhuri in his hand and the deceased was in an injured condition. The witness and Imdad P. W.
Carried Zahur Ahmad deceased to Shahdara Hospital where the injured was rendered first aid.
After that according to the direction of the doctor Zahur Ahmad was brought to Mayo Hospital, Lahore but he expired on the way.
10. After perusing the evidence in the case, the question now left for examination is as to what offence the appellant has committed in the circumstances of the case. The situation which one can visualise in this case is that the accused and the deceased started quarrelling with each other and the exchange of abuses on the part of the deceased continued and the passions in such circumstances would not cool and would obviously rise high. The case of the appellant in such circumstances, in my view, will come within exception 4 to section 300, P PC. Admittedly it was a sudden affair and the quarrel ensued which resulted in the present occurrence. The appellant cannot be said to have acted in a cruel manner as he gave only one injury to the deceased. It cannot be said that the appellant had acted in an unusual manner. The fight in this case clearly seems to be sudden and what had happened was the result of high passion. In Abdul Majid v. The Crown. (PLD 1951 FC 304) it was held that:--- "The words `undue advantage' and `cruel manner' which are used in the Fourth Exception to section 300 not in any special signification but in their ordinary meaning, are not capable of any precise definition and no such definition has ever been attempted, obviously because whether a person can be said to have taken undue advantage or acted in a cruel manner depends upon the circumstances of each particular case, and no general formula can be evolved which may be applicable to all cases that may arise".
This being the legal position, I am convinced from the evidence that in the circumstances of this case the appellant is entitled to the benefit of Fourth Exception to section 300, P. P. C., as all the three ingredients are present to entitle him to the benefit.
11. The upshot of the discussion is that I would, therefore, alter the conviction of the appellant from section 302, P. P. C. To section 304 Part II P. P. C. And reduce the sentence from transportation for life to seven years R.1. However, the sentence of fine is maintained. The appeal succeeds to the above extent.