' SAJJAD ALI SHAH, J.---Appellant Muhammad Naseem was convicted for offence under section 302, P.P.C. For double murder by learned Sessions Judge, Quetta in Sessions Case No,20 of 1985 and sentenced to life imprisonment and a fine of Rs,5,000 or in default R.I. For 6 months. He was directed to pay compensation of Rs,20,000 to the heirs of each deceased as contemplated under section 544-A, Cr.P.C. And was also given benefit of section 382-B, Cr.P.C. Division Bench of the High Court of Balochistan, Quetta disposed of together Cr. Appeal No,33/86 filed by appellant against his conviction and sentence and two Criminal Revision Applications Nos.25/86 and 12/87 filed by complainant and State respectively vide judgment dated 2-6-1987, impugned herein, whereby appeal is dismissed and revisions for enhancement of sentence have been accepted and appellant is sentenced to death and fine of Rs,5,000 or in default to suffer R.I. For 6 months.
Payment of compensation awarded by the trial Court is maintained with sentence of 6 months R.I.
In case of default.
2. Briefly stated the prosecution case is that incident took place on Gilzai Road Nichari Camp within the jurisdiction of P.S. Quaidabad in District Quetta on 17-7-1985 at 6-55 p.m. Appellant Muhammad Naseem asked Ghulam All to telephone WAPDA for repairing electric wire which had fallen down due to storm. Ghulam All replied that he had done so but since nobody from WAPDA turned up, argument took place between the two and they also grappled with each other. Wilayat Hussain, All Madad and others intervened and separated them. Both were taken to their respective houses in the same vicinity. On this account there was noise and after three or four minutes appellant Muhammad Naseem came out from his house armed with knife and gave stab wounds to Ghulam Ali and his nephew Mujawar. Complainant Ghulam Abbas son of Ahmed Jan, who is brother of Ghulam Ali, did not see earlier part of incident in which altercation took place but had come out of the house on commotion and saw appellant Muhammad Naseem giving knife injury to Mujawar Hussain. Ghulam All having been injured earlier was lying on the ground with support of the wall.
With the help of the persons present at the spot, complainant took both injured to the hospital where Mujawar died at 9-45 p.m. Followed by Ghulam Ali who died at morning prayer time. It is also the case of the prosecution that at the spot after sustaining injury, Ghulam All informed Wilayat Hussain and others that Naseem had injured him and Mujawar after bringing knife from his house.
3. S.H.O. Rafiullah Shah after receiving telephonic information reached Civil Hospital, Quetta and recorded statement of P.W.12 complainant Ghulam Abbas son of Ahmed Jan and sent it to the police station. He prepared injury statements of both injured persons who were admitted in Surgical Ward. He could not record their statements as they were in critical condition. He came to the scene of offence and took blood-stained earth. Appellant Muhammad Naseem came out from his house and produced blood-stained knife which was taken into possession and put into sealed parcel and appellant was taken in custody. I.O. Recorded statements of other witnesses and was informed about death of Mujawar Hussain. He went to the Civil Hospital and prepared inquest report. Ghulam All died in the morning and his inquest report was also prepared. Request was made for post-mortem examination of the dead bodies. Blood-stained clothes of both deceased persons were recovered and put into sealed parcels. Statements of witnesses were recorded.
Judicial confession of appellant was recorded on 30-7-1985 before EAC-II & Magistrate First Class, Quetta. After completion of investigation, challan was presented.
4. Before the trial Court as many as 15 witnesses were examined in support of the prosecution case.
P.W.1 is Dr. Muhammad Gul Khan, who performed post-mortem examination on the dead bodies and produced reports Exhs. P/A and P/B. According to these reports Ghulam All had sustained stab wounds on the right side of abdomen and another below left eye. Mujawar sustained one stab wound on the left side of the chest below the nipple. Both of them died due to shock and haemorrhage resulting from injuries. P.W.2 is Wilayat Hussain son of Muhammad Hussain, who saw first part of the incident with grappling and separation had come to the spot after stabbing and was present when injured Ghulam All informed in his presence that appellant Muhammad Naseem came out from his house armed with knife and gave him and Mujawar injuries. P.W3 is Shah Nawaz son of Amir Muhammad Patwari, who prepared sketch Exh.P/C. P.W.4 Dr. Shabbir Hussain was informed about the incident by Ghulam Hussain, brother of appellant Muhammad Naseem. He went and had a talk with appellant in his house, who enquired from him whether Ghulam Ali and Mujawar Hussain were not injured seriously. This witness claimed to be family doctor of appellant and Ghulam Ali.
5. P.W.5 is Ghulam Abbas son of Muhammad Ramzan who is not to be mistaken with P.W.12 complainant Ghulam Abbas son of Ahmad Jan (brother of deceased Ghulam Ali). This witness deposed that on being informed by Wilayat about incident he and Ghulam Hussain and Habib went to the spot and saw Ghulam Ali and Mujawar Hussain in injured condition and took them in Suzuki to the hospital. He did not claim to have seen the incident himself. P.W.6 is Mr. Nazir Ahmed Aftab, EAC-HI & Magistrate First Class, Quetta, who recorded judicial confession of appellant Muhammad Naseem on 30-7-1985 and produced it in the Court as Exh.P/E. P.W.7 is Muhammad All son of Kazim Ali, who deposed that he lived in the same neighbourhood where incident took place and saw first part of the incident and grappling. He helped in separating appellant and Ghulam All who went to their houses. He also went to his house and after a short time heard commotion. He came and saw Ghulam All and Mujawar lying injured. Ghulam All told him that they were injured by Naseem with knife. Other people present there took both injured to the hospital.
6. P.W.8 is Walilur Rehman, S.I., who was S.H.O. P.S. Quaidabad. He went to the spot and participated in the investigation and then also went to the hospital alongwith I.O. He signed memos. And produced them in the Court as Exhs. P/F to P/K. P.W.9 Rab Nawaz, Head Moharrir registered formal F.I.R. Exh.P/M. P.W.10 Muhammad Akbar Bugti, Inspector of Police produced report of Chemical Examiner Exh.P/N with positive finding that earth, knife and two shirts of deceased persons were found to be stained with human blood group '0'. P.W.11 is Ali Raza son of All Hussain, who attested receipts of handing over of dead bodies to the relatives. P.W. 12 is complainant Ghulam Abbas son of Ahmed Jan, who is eye-witness to the extent that he saw appellant giving knife injury to Mujawar. Ghulam Ali. Was lying there already injured. Ghulam All also told him as to how incident took place. He and others took both injured to the hospital where his statement was recorded by I.O. And sent to the police station. Both the injured died in the hospital. P.W.13 All Madad son of Ali Yawar was put in the box and then dropped and not examined on the ground that he had been won over. P.W.14 also numbered as P.W.16 is Ali Hussain son of Rehmat Hussain who deposed that he attested inquest reports, identified and received back dead bodies. P.W.15 who is also numbered as P.W.16, is Rafiullah, Additional S.H.O., who has investigated the case as stated above.
7. It would be pertinent to point out here that in judicial confession Exh.P/E of appellant Naseem, factum of infliction of knife injuries to deceased persons is admitted. It is also admitted that on the day of incident there was exchange of harsh words between appellant and Ghulam Ali on account of telephone call to WAPDA and both grappled with each other and were separated by Wilayat Hussain, Ali Madad and others. Appellant went home. After a short while there was commotion and appellant took knife from the house and came out in temper. He was prevented by his Bhabhi but he did not listen to her. Outside he attacked Ghulam Ali and Mujawar with knife and they also attacked him with something on his head. Persons intervened after which appellant came home.
After about one hour police came to his house and arrested him.
8. In the trial Court appellant in his 342, Cr.P.C. Statement denied allegations of prosecution and admitted only prelude to the incident to the extent that on account of telephone call to WAPDA there was exchange of harsh words between him and Ghulam All and they grappled and exchanged fist blows and were separated by other persons. Other allegations have been denied including judicial confession and recovery of blood-stained knife. To the question as to why witnesses deposed against him, appellant replied that he did not know. Appellant further gave statement on oath.
9. In the statement on oath, appellant has stuck to prelude to the incident as stated above.
However, so far actual incident is concerned, appellant has retracted from judicial confession in which he had admitted giving knife blows to Ghulam All and Mujawar and has given entirely different version, relevant paragraph of which in his own words is reproduced as under:-- "I was sitting in my house when after 3/4 minutes deceased Ghulam All again came to the door of my house. He knocked the door of my house. I came out of my house. When I came out of my house, the deceased Ghulam Ali caught hold of me by my collar. He gave a fist blow on my face.
We then exchanged fist blows and in this process we reached the house of deceased Ghulam Ali.
Mujawar the sister's son of deceased Ghulam Ali was standing in front of his house. Mujawar Hussain had a knife in his hand. He abused me. He came running towards us and attacked me with the knife from behind Ghulam Ali. It struck Ghulam Ali. Deceased Ghulam All got injured. He put his hand on his abdomen and sat by the wall of his house. Mujawar Hussain again attacked me with the knife. I held the hand of deceased Mujawar Hussain wherein he was holding the knife. During scuffle, Mujawar got injured by his own knife. I came to my house running. No one was present when both the deceased got injured. At about 9-30 or 9-45 p.m. There was knock at the door of our house. I came out of my house. S.1. Rafiullah Shah and one Head constable were at our house."
10. We have heard at length Mr. Azizullah Sheikh, Advocate Supreme Court for appellant and Mr. Basharatullah, Advocate Supreme Court for the respondent. We have noticed in the impugned judgment that in the High Court counsel for appellant had taken stand categorically that incident, its place, recovery of blood-stained knife and factum of causing injuries to Ghulam All and Mujawar Hussain by appellant were not disputed. Mr. Azizullah Shaikh, learned counsel for the appellant before us has reiterated the same stand and has submitted emphatically that it is a case of sudden fight in the heat of passion, as such covered by Exception 4 to section 300, P.P.C. It is further submitted that evidence and facts brought on the record indicate in the direction that injuries were caused on account of sudden quarrel. We have to examine the evidence recorded in this case in detail in view of the contention raised before us by the learned counsel for the appellant.
11. The first prerequisite of Exception 4 to section 300, P.P.C. Is that there should be sudden fight. It appears from the evidence of this case that appellant asked deceased Ghulam Ali to telephone WAPDA for complaint and Ghulam Ali replied that he had already done so but WAPDA people had not arrived. Then there was argument between the two and Ghulam All said that appellant was not responsible for the whole neighbourhood and there was grapping also but witnesses namely, P.W.2 Wilayat Hussain, P.W.7 Muhammad Ali and P.W.13 Ali Madad intervened, separated them and took them to their houses. In this context P.W.2 Wilayat Hussain stated that in the conversation there was exchange of harsh words and then both grappled with each other. He has not explained or pin- pointed as to what were those harsh words which were exchanged. P.W.7 Muhammad All stated in his deposition that there was dispute and after which parties were separated. He did not say anything more on this point P.W.13 Ali Madad was given oath and then not examined on the ground of having been won over. Be that as it may, in any case parties were separated as is unanimously stated and were sent to their respective houses and second part of the incident took place after about 3 or 4 minutes. In the ordinary course 3 or 4 minutes is sufficient time to cool off particularly when there is no evidence as to what were those harsh words. On harsh words, apart from what is stated by prosecution witnesses, as mentioned above, appellant in his judicial confession, 342 Cr.P.C. Statement and statement on oath has not elaborated harsh words except that Ghulam Ali told him that he was not responsible for the whole neighbourhood. Apparently these words are not so harsh to give rise to sudden fight and create heat of passion. There was separation and lapse of three or four minutes was reasonable time for cooling off.
12. So far second part of incident is concerned, prosecution case is that after 3 or 4 minutes of first part of incident appellant came out from the house armed with knife and gave injuries to Ghulam Ali and Mujawar. Appellant stated in his judicial confession that afterwards there was commotion in the street and he took out knife and in spite of protest of his Bhabhi who wanted to prevent him he came out in temper and attacked Ghulam All and Mujawar. Appellant has retracted from his judicial confession and appeared for himself as a witness and gave statement on oath in which he denied coming out from the house with knife and giving knife injuries to Ghulam Ali and Mujawar. In his statement on oath in the Court appellant stated that there was a knock at the door and when he came out Ghulam Ali was there who caught him from his collar and gave him fist blow on his face. There was exchange of fist blows and in that process both reached the house of deceased Ghulam Ali. Mujawar attacked appellant with knife and accidentally Ghulam Ali was injured.
Mujawar attacked appellant again but as his hand was held by appellant, knife accidentally hit Mujawar himself. Appellant did not produce any witness in support of this story. On the face of it, this story appears to be figment of imagination and concoction. Exchange of fist blows in the story of appellant is not correct because it is not medically certified that appellant or deceased Ghulam All had sustained any injuries caused by fist blows. Secondly, if Ghulam Ali had come and knocked at the door of house of appellant and caught hold of his collar, incident would have taken place near the house of appellant and not near the house of deceased Ghulam Ali. According to sketch Exh.P/C (at page 100 of paper-book) house of appellant is 27 feet away from the place where injuries were inflicted upon deceased persons. As against that prosecution case is that injuries with knife to both deceased persons were inflicted by the appellant who had come out from his house armed with knife. Since infliction of injuries by appellant with knife is admitted by the counsel for appellant, we need not go into other details of the prosecution case on this point.
13. We are unable to find anything available on the record to support the plea that it was a case of sudden fight in the heat of passion. Of course in the first part there was argument between Ghulam All and appellant which resulted in grappling but there was separation and both went to their houses which was sufficient time for cooling off. Mr. Azizullah Shaikh contended that so far second part of the incident is concerned, appellant became purturbed and because there was commotion at the door hence whatever happened in the second part, would be covered by Exception 4 to section 300 P.P.C. We are unable to accept this contention for the reasons firstly, that it is not a case of sudden fight as the incident is divided into two parts and in first part there was grappling but parties were separated and sent away to their houses. 3 or 4 minutes elapsed which was sufficient time to normalisation of temper if there was any. Secondly, we do not find any justification for appellant to come out armed with knife after hearing commotion near his house. It is stated by the appellant in his statement on oath that 3 or 4 minutes later Ghulam All came and knocked his door and when he came out, Ghulam All caught hold of his collar and gave him a fist blow. Both exchanged fist blows and like that they went up to the house of Ghulam Ali. Had it been so, incident would have taken place at the door of appellant and blood would have been found there. Thirdly, incident has taken place near the house of both deceased persons at a distance of 27 feet from the house of appellant which shows that appellant walked that distance after having taken knife from the house. Fourthy, he attacked both deceased persons who were unarmed and could not defend themselves. Fifthly, knife was used with such force and impact that its blade got twisted as is proved by recovery memo. And other related evidence. Sixthly, Ghulam All was given knife blows on the abdomen and on the left eye while Mujawar Hussain was given injury on the left side of the chest below the nipple which shows that injuries were given to both on vital parts which caused their death. Seventhly, and lastly even if we assume for the sake of argument that there was altercation between Ghulam Ali and appellant before the incident and 3 or 4 minutes immediately befoie the incident, hence it would be termed as sudden fight in the absence of any previous enmity, then the same would not be true in the case of Mujawar Hussain, who was' as not involved in the altercation at all and appellant had no earthly reason to attack him with knife.
14. Before we go into the case-law on the subject, it would be expedient to mention here that for getting benefit of Exception 4 to section 300, the Court has to conclude that 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 and unusual manner. In the instant case although there was grappling before the incident but that was on account of argument and there is no evidence that abuses or harsh words were exchanged. At the most deceased Ghulam All said to the appellant that he should not speak for whole neighbourhood. This sentence as such is not enough to give rise to heat of passion in a sudden fight. In any case there was cooling time of three or four minutes. After that appellant came out from his house armed with knife and walked 27 feet to the house of deceased persons to attack them. In this case appellant gave knife blows not only to Ghulam Ali with whom he grappled prior to the incident but also to Mujawar who had nothing to do with previous quarrel. This case is of double murder and appellant cannot plead that Mujawar also gave him provocation. Both deceased persons were given stab wounds on vital parts and blade of the knife was found twisted which shows that knife was used with force and impact in a cruel and unusual manner.
15. Mr. Azizullah Shaikh in support of his contention, as stated above, has cited 9 rulings of which 5 arc from High Courts and 4 from Supreme Court. Judgments from High Court are in the cases of Mir Afzal v. State 1972 PCr.LJ 1025, Bashir Ahmad v. The State 1975 PCr.LJ 203, Mahiwal v. The State 1975 PCr.LJ 1121, Dural v. The State PLD 1982 Kar. 150 and Yousaf v. The State 1984 PCr.LJ 1982. In all these five cases there was sudden quarrel and then and there blows were given except in the cases of Bashir Ahmad and Yousif (supra) where parties were separated and appellants went and brought weapons and then inflicted blows. Cases of the Supreme Court cited are Shamshad v. The State PLD 1963 SC 740, Sikandar v. The State PLD 1966 SC 555, Masoom Beg v. Muhammad Munir and another 1971 SCM R 476 and Muhammad Nawaz v. Abdul Hayec and another 1976 SCM R 36. In all those Supreme Court judgments facts are different and do not help the appellant in this case.
Peculiar facts of the instant case arc that appellant and deceased Ghulam All had altercation and grappled with each other before the incident and subsequently when appellant returned from his house armed with knife, he inflicted fatal injuries nut only to Ghulam Ali but also to Mujawar with whom appellant did not have any quarrel before the incident and therefore, for murder of Mujawar plea of sudden quarrel and heat of passion cannot be taken. We are, therefore, of the view that no exception can be taken to the judgment of the High Court awarding capital punishment. Appeal is dismissed.
16. Mr. Azizullah Shaikh has submitted that case of the appellant, who was sentenced to death before 6-12-1988, is covered by the benefit of Presidential Amnesty and judgment of the Supreme Court of Pakistan in that context in Criminal Appeal No,49 of 1991 (Eid Muhammad v. The State) and other connected appeals announced on 30-8-1992. It is for the Government and jail authorities to consider this aspect and if the case of the appellant is covered by the benefit and he is found entitled to it, the same may be given to him.