Appellant Abdul Marian was tried alongwith Fazal Karim, Bakhat Karam, Fazal-ur-Rehman, and Bakhat Rawan by VI)th Additional Sessions Judge (East) Karachi, for the offence under section 147- 148-307-302/149, P.P.C. Who acquitted co-accused Fazal Karim, Bakhat Karam, Fazal-ur---Rehman and Bakhat Rawan, but convicted the appellant for the offence under section 304(11), P.P.C. And sentenced him to suffer R.I. For ten years and to pay a fine of Rs.10,000 or in default to suffer R.I. For one year. The benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence awarded on 9-12-1991.
2. The material facts of the case giving rise to this appeal are that the appellant and complainant Rahim Bahadur .Had shops adjacent to each other situated in Nagaria Chali, Quaidabad, Karachi.
Deceased Taseer Khan and P.W. Sabir Khan also worked in the shop of their brother Rahim Bahadur. On 12-3-1988 at about 6 p.m. The appellant, co-accused Fazal Karim, Bakhat Karam, Fazal-ur-Rehman, Bakhat Rawan (since acquitted), and absconding accused Fazal Habeeb were unloading the goods at the shop of Rahim Bahadur from a donkey cart. Deceased Taseer Khan asked the accused to remove the donkey cart from there, whereupon there was exchange of hot words followed by a quarrel and a fight wherein deceased Taseer Khan and P.W. Sabir Khan sustained injuries from the side of complainant Rahim Bahadur, while co-accused Fazal Karim received hurt from the side of accused persons: It is alleged that the appellant who was armed with a Chhuri caused one blow to deceased Taseer Khan on lower chest. The commotion attracted Habib Khan and Mir Salam Khan who also witnessed the incident. Complainant Rahim Bahadur who had reached the place of incident carried deceased Tasir Khan and P.W. Sabir Khan to Jinnah Post-Graduate Medical Centre, Karachi, where Tasir Khan died. On the same day Muhammad Sadique S.I.P. Recorded 154, Cr.P.C. Statement of complainant Rahim Bahadur which was subsequently incorporated in 154, Cr.P.C. Book maintained at Quaidabad Police Station. On the same day the counter F I.R. Lodged by co---accused Fazal Karim (Since acquitted) was registered at the same police station for the offence under section 307/34, P.P.C. After usual investigation the appellant was challaned alongwith acquitted accused and the absconding accused Fazal Habeeb.
3. At the trial the prosecution examined Rahim Bahadur (P.W.1), Habib Khan (P.W.2), Mir Salam Khan (P.W.3), Muhammad Rasool Khan (P.W.4) Bakhat Buland (P.W.5), Dr. Amanullah (P.W.6), Jaiz Khan (P.W.7), Sabir Khan (P.W.8), Maqsood Ahmad S.I.P. (P.W.9), Muhammad Riaz H.C. (P.W.10), Muhammad Sadique S.I.P. (P.W.11), and Dr. Nisar Baig (P.W.12).
4. In their statements recorded under section 342, Cr.P.C. The appellant and co-accused (since acquitted) denied each and every allegation put to them. The accused also examined themselves on oath under section 340(2), Cr.P.C. Accused Fazal Karim has come out with the following defence:-- "I know accused Bakhat Karam and others present in Court. We had a fight with Sabir Khan, Bahadur Khan, Tasir Khan and Watan Khan. On 12-3-1988 at about 6-30 p.m. The incident took place in Nagaria Chali, Landhi, Karachi. My brother Fazal, Rehman brought goods and parked the donkey cart in front of his shop. As soon as the goods were being unloaded Sabir Khan protested saying that the passage had been blocked, therefore, the cart should be removed from that place.
Sabir Khan and Tasir Khan gave me Chhuri blows and Danda blows respectively. On receipt of injuries I fell down and cannot say what happened thereafter."
5. The accused examined Abdul Haleem (D.W.1), and Taseer Khan (D.W.2) in their defence.
6. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the offence under section 304(11), P.P.C. And convicted him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Muhammad Abdul Wahab Khan, learned counsel for the appellant and Mr. Habib-ur-Rasheed, learned counsel for the State. The latter while supporting the conviction recorded against the appellant has conceded to the reduction of sentence awarded to the appellant.
8. Sabir Khan (P.W.8) who is the injured person in this case has testified about the circumstances leading to this case. His evidence shows that the incident had taker place all of a sudden without any premeditation, and although he has tried to conceal about the injuries sustained by accused Fazal Karim (since acquitted) this position has been admitted by Muhammad Rasool Khan (P.W.4) in clear terms. According to Sabir Khan the appellant caused one Chhuri blow to his brother deceased Tasir Khan, while rest of the accused caused him Lathi blows. Habib Khan (P.W.2), Mir Salam Khan (P.W.3), and Muhammad Rasool Khan (P.W.4) who had witnessed the incident have supported the version of Sabir Khan (P.W.8). Their version is further corroborated by complainant Rahim Bahadur (P.W.1), who had reached to the place of Wardat after the fight was over and Jaiz Khan (P.W.7) who has acted as Mashir of recovery of Chhuri from the shop of the appellant, which was found to be blood-stained.
9. The evidence adduced by the prosecution leads to the following conclusions:--
(i) That the incident took place without any premeditation;
(ii) That it was committed in a sudden fight;
(iii) That it was committed in the heat of passion;
(iv) That the incident was the result of a sudden quarrel;
(v) That the appellant had not taken any undue advantage or acted in a cruel or unusual manner.
10. On going through the record most carefully and weighing the evidence produced on both sides, I am of the view that the conclusion drawn by learned Additional Sessions Judge that the case against the appellant is covered by fourth exception to section 300, P.P.C. And the appellant is guilty for culpable homicide not amounting to murder, appears to be correct.
11. In the case of Public Prosecutor v. Somasundaram and others reported in AIR 1959 Mad. 323, Exception 4 to section 300, I.P.C. (P.P.C.) was examined by a Division Bench and it was observed:-- "If the matter had rested here, we would have found no difficulty in convicting accused 1 to 3 for an offence under section 302, I.P.C. But the matter does not rest there. The evidence on record shows that this offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offenders having taken undue advantage or acted in a cruel or unusual manner, thereby attracting Exception 4 to section 300, I.P.C. In this case there is no dispute that there were strained feelings between the parties on account of the accused asking the deceased to give back 2 acres of land. We do not know the rights and wrongs of it. The accused were constantly asking the deceased for the return of two acres and on the day of the offence they have gone to the field which the deceased was ploughing and asked him to return the two acres.
There has been a wordy quarrel. From words the parties have come to blows. The weapons which they had been using are those 'which these ryots generally carry to the fields or those lying handy in the fields viz. Sticks. In the course of the quarrel both the parties have sustained injuries. It cannot be said that the accused took undue advantage or acted in a cruel or unusual manner. Thus, all the elements for attracting Exception 4 to section 300, I.P.C., are present in this case. There was no premeditation and it was only from words and that they had suddenly come to blows. It cannot be said that the accused had gone to the field with express malice or pre-arrangement to cause the death of Naina Goundan. The term `fight' occurring in Exception 4 to section 300, I.P.C., is not defined in the Indian Penal Code It takes two to make fight. In order to constitute a fight it is necessary that blows should be exchanged and it is not necessary that weapons should be used.
Heat of passion requires that there must be no tame for the passion to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation m .The beginning. The fight, as the nature of the injuries on both sides would show, appears to be on equal terms. In fact if after exchange of blows on equal terms one of the parties without any such intention at the commencement of the affray snatches a deadly weapon and kills the other party with it, such a killing will be only manslaughter. But if a party under colour of fighting, upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party and kills the other party with such weapon, or if, at the beginning of the contest to prepares a deadly weapon so as to have the power of using it at some part of the contest and uses it accordingly in the course of the combat, and kills the other party with the weapon, the killing in both these cases will be murder. Thus, to sum up, this is a case where when two men engage suddenly m a fight, the death of one of them is not the most natural or inevitable result, nor can it be said that either of them desires the end f the other.
But it is a case, where they may be borne, as it were, on the waves of the ocean of passion and if the sea is rough and the weather inclement only the fittest can survive. In such a case the Court is not concerned with the origin of the fight and the guilt or innocence of the accused is not dependent upon the 'result of an inquiry as to his conduct. The temper may not rise with each exchange of blows and it is not unlikely that the less blameworthy individual may conduct himself in a more blameworthy manner.
So long as the fight is unpremeditated and sudden, the accused, irrespective of his conduct before the fight, earns the mitigation provided for in the Exception 4 to section 300 subject to the condition that he did not m the course of the fight take undue advantage or act in a cruel nr unusual manner. This has been the case here and offence committed by the accused would attract Exception 300, I.P.C."
12. This view was reiterated in Muhammad Shafiq v. The State reported in PLD 1960 Lah. 339, Muhammad Khan v. Dost Muhammad and 17 others reported in PLD 1975 SC 607, Muhammad Jamil v: The State reported in 1983 P Cr. L J 366, Mano alias Kiri and another v. The State reported in 1983 P Cr. L J 537, Muhammad Tofique v. The State reported in 1983 P Cr. L J 565, Ilyas v. The State reported in 1983 P Cr. L J 628, Bashir v. The State reported in 1983 P Cr. L J 2027, Raheem v. The State reported in 1984 P Cr. L J 371, Shah Muhammad v. The State reported in 1985 P Cr. L J 2157, Zafar Iqbal v. The State reported in 1985 P Cr. L J 2619, Raj Ali and others v. The State reported in 1987 P Cr. L J 1817 and Muhammad Jameel alias Jeela v. The State reported in 1987 P Cr. L J 2462.
13. On examining the above authorities, it is obvious that the case against the appellant will fall under section 304(I), P.P.C., and not under section 304(II), P.P.C: While maintaining the conviction of the appellant I would convert it under section 304(1), P.P.C.
14. It appears that the appellant has already spent a period of more than four years in Jail, both before and after his conviction. The appellant is an old person of about 70 years of age. Only one blow was caused to deceased Taseer Khan, which unfortunately proved to be fatal. Taking all these factors into consideration, coupled with the concession extended by learned counsel for the State, the sentence of imprisonment is reduced to that already undergone by the appellant. The sentence of fine is, however, maintained. The appellant shall suffer R.I. For one year in default thereof. The appellant is also directed to pay a compensation of Rs.30,000 (Rs. Thirty thousand) to legal heirs of deceased Taseer Khan or in default to suffer further R.I. For one year. The appellant shall be released, if not required in any other case after fine and compensation are paid by him.
15. With these modifications the appeal is otherwise dismissed.
N.H.Q./A-1230/K