1. MUHAMMAD AFZAL ZULLAH, CJ.---Leave to appeal was granted in this appeal through jail in a murder case wherein the appellant was found guilty under section 302, P.P.C. And awarded sentence of life imprisonment as well as fine of Rs.2,000.
2. Leave was granted for the examination as under:-- "In view of the fact that motive lay more with the complainant party than with the accused; that their encounter was more by chance than by design, that the accused convict had also incised injuries, the evidence requires reappraisal in order to reasonably exclude the possibility of accused/convict acting in exercise of his right of defence of his person, or in a sudden fight without taking undue advantage or acting in a cruel manner."
3. The learned counsel for the appellant has drawn our attention to those parts of the judgment of the High Court wherein it was observed that the injuries on the person of the accused were either self-sustained or self-suffered. One of the main reasons which influenced such findings by the High Court was that the doctor had not excluded the possibility of the injuries on the accused being so self-suffered. Learned counsel for the appellant, however, brought to our notice the equally strong opinion of the doctor that the said injuries could as well have been caused by an adversary. The controversial injuries on the person of the accused were described by the doctor as follows:-- (1)Incised wound 5 c.m. x 1 c.m. x bone deep on the left side of the skull 10 c.m. From left ear and 12 c.m. From left eye-brow. The wound was bleeding.
4. (2)An incised wound starting from dorsum of left hand at the base of thumb passing across the space between the thumb and index finger. It was 9 c.m. x 3 c.m. x depth not probed. It was bleeding."
5. It may also be noted that the appellant was admitted in the Hospital for these injuries almost immediately after the occurrence. The fact that he was subsequently released from the Hospital will not make any difference in so far as the initial conduct is concerned. The said conduct of getting admitted in the Hospital which had somewhat been commented upon by the High Court in fact seems to be for the reason that injury No.l being a bleeding wound on the head must have put everybody on caution regarding its implications. It was 5 c.m. Long wound with 1 c.m. Width and the same being bone deep, its width must have exposed the skull underneath the cut scalp. The doctor's opinion that it ultimately turned out to be a simple hurt will not make any difference in so far as its initial visual impact is concerned. The mere fact that the doctor gave a theoretical opinion that the injuries could be self-suffered or self sustained will not take away the importance of the location of injury No-1 nor the impression it might have created on the person who suffered or those around him, immediately after the occurrence.
6. Otherwise too it is very rare and highly improbable that such a wound would be inflicted on the head on account of an exercise, whether through friendly hand or self-infliction. It was though not impossible but highly improbable. The time gap between the occurrence and the admission in the hospital is so short that none of these injuries could have been manipulated. It is for all these reasons that the trial Court took a more realistic and practical view of this matter. While dealing with this aspect the said Court observed as follows:- "The extreme penalty of death has not been imposed because as concluded above, the deceased and the accused came across by chance and over a little affair exchanged abuses and the accused assaulted the deceased and might be the deceased also used some weapon to defend him and injured the accused."
7. The possibility visualised as in the above reproduced part of the trial Court judgment is not only reasonable but the supposition is highly probable. As held by both the Courts on the question of suddenness and lack of premeditation and other circumstances, the case fell within Exception 4 to section 300, P.P.C. Accordingly, the offence committed by the appellant was under section 304, Part I, P.P.C.
8. The argument of the learned counsel that a possibility that the deceased might have caused the first injury to the accused cannot be excluded and, therefore, the appellant should be allowed the benefit of private defence, in view of the explanation to Exception 4 to section 300, P.P.C. Is untenable. In such like cases who gives the provocation or starts the assault becomes insignificant.
9. In the light of the foregoing discussion this appeal is partly allowed. The conviction of the appellant is altered from one under, sections 302 to 304. Part I; P.P.C. And the sentence is reduced to 10 years'
10. R.I. The fine instead is increased to Rs.85,000. It will be paid as compensation to the heirs of the deceased. If it is not realised, the appellant shall suffer further R.I. For 6-1/2 years.