' MUHAMMAD MUNIR KHAN, J.---This appeal by leave of the Court arises from the facts that in the occurrence which took place on 29-10-1988 as Peshiwela in the fields in the area of Chak No,241/GB, at a distance of 10 miles from the Police Station Saddar Gojra, District Toba Tek Singh, Muhammad Shahid lost his life and Muhammad Ajmal complainant/appellant received injuries at the hands of Zahid Shakoor respondent No,1 and Abdul Shakoor. According to the prosecution version, Muhammad Ajmal complainant and his son Muhammad Shahid deceased were cutting the shrubs in the fields. In the adjacent Killa No,8, Zahid Shakoor respondent was operating Karah by means of bullock and was heaping the earth so dragged by the Karah in the adjacent Killa No,13 belonging to Muhammad Ajmal/complainant. He (Muhammad Ajmal) asked him not to deposit the earth in his land. In the meantime, Mst. Mussarrat wife of Muhammad Ajmal reached there.
Abdul Shakoor, father of Shahid Shakoor who was cutting fodder in the adjacent field with a sickle, also came there. Zahid Shakoor pushed Mst. Massarrat aside, whereupon Muhammad Ajmal caught hold of him. At that time, Zahid Shakoor was carrying a stick in his hand. He started giving stick blows to Muhammad Ajmal on different parts of his body. Muhammad Ajmal snatched the stick from Zahid Shakoor. By that time, Muhammad Shahid son of Muhammad Ajmal arrived there.
Abdul Shakoor caught hold of Muhammad Shahid and raised Lalkara asking Zahid Shakoor respondent not to allow Muhammad Shahid to escape. Zahid Shakoor took the sickle from his father and inflicted a blow on the neck of Muhammad Shahid who fell down and died after sometime. The report of the occurrence was lodged by Muhammad Ajmal P.W.5--father of the deceased, at the Police Station, Saddar, Gojra on the same day at 3-30 p.m. And was recorded by Muhammad Hanif Inspector P.W.12.
2. The medical evidence will show that Muhammad Shahid received a stab wound 1.5 x 1-0 c.m. x up to right lung cutting major blood vessal on the right side of neck, close to chest. This injury was caused by sharp-edged weapon and was sufficient to cause death in the ordinary course of nature. Muhammad Ajmal complainant received three simple injuries caused by blunt weapon.
Zahid Shakoor respondent/accused also received two scabed lacerated wounds on his head and one abrasion on the left arm. Both the injuries were simple in nature and caused by blunt weapon.
3. Zahid Shakoor respondent/accused was arrested on 31-10-1988. On the same day, he got recovered blood-stained sickle Exh.P.1 from his Ihata in the presence of Maqbool Ahmed P.W.3 and Muhammad Hanif Inspector P.W.12. The report of the Serologist Exh.P.R. Revealed that the sickle was stained with human blood.
4. The prosecution produced as many as twelve witnesses. Tahir Mehmood P.W.4 and Muhammad Ajmal P.W.5 have given the ocular account of the occurrence. They have fully supported the prosecution version. They claim to have seen Zahid Shakoor inflicting injury with sickle (which he had taken from his father's hand) on the neck of the deceased. Maqbool Ahmed P.W.3 has supported the recovery of blood-stained sickle from Zahid Shakoor respondent. Dr. Muhammad Imran Tariq P.W.6 has proved the post-mortem examination report. Dr. Muhammad Ajmal Khan, P.W.7 has proved the Medico-Legal Report of the injuries of Muhammad Ajmal complainant. Dr. Jamshed Raza P.W.8 has proved the Medico-Legal Report of the injuries of Zahid Shakoor respondent. The rest of the evidence is almost of formal nature.
5. When examined under section 342, Cr.P.C. The respondent denied all the incriminating circumstances. While admitting to have given injury with a sickle on the person of Muhammad Shahid, he gave his own version of the occurrence which is as under:- "I am innocent. Shahid deceased was my first cousin. He was very dear to me. I had no or grudge against him. At the time of alleged occurrence Shahid deceased was cutting small bushes and weeds etc. With a sickle from Killa No,14/1 of Square No,22 of Chak No,242/GB which was in possession as owners as a family settlement. I and my brothers jointly cultivate the land. I asked Shahid not to cut small bushes and weeds as they themselves wanted them for burning. I was at that time levelling out Killa No,8/2 adjacent to Killa No,13/2 by scraper and bullocks. Northern portion of which measuring 1 Kanal was also in our possession as owners. I had a stick in my hand by which bullocks were being driven. I came forward and asked Shahid to stop cutting the bushes and weeds upon which he all of a sudden flared up, grappled with me and we exchanged abuses.
He snatched the stick from me and gave blows on my head. I picked up his sickle lying there in order to ward up the attack and deter him and scare him off from giving the blows to me, lifted and moved sickle towards him, front edge of which hit near his neck. It all happened suddenly. I neither intended to cause his death nor knew that his death would occur. I exercised my right of self- defence, of person and property in good faith. No P.W. Was present at the spot. False story had been cooked up and myself and my father have been falsely implicated in this case at the instance of Abdul Ehsan a step-brother of my father against whom my father had been litigating to get his share of land."
' The respondent neither produced any witness in defence nor gave evidence on oath in disproof of the charge against him.
6. On the conclusion of the trial, the learned Additional Sessions Judge, Toba Tek Singh, vide his judgment dated 14-4-1990, convicted the respondent and his co-accused under section 302/34, P.P.C. And sentenced them to death with a fine of Rs,25,000 each, or in default three years' R.I. Each with the direction that the fine, if recovered, shall be paid to the legal heirs of the deceased. On the appeal filed by the respondent and his co-accused against their convictions and sentences, the Lahore High Court, vide its judgment dated 29-9-1992, acquitted Abdul Shakoor the co-accused of the respondent of the charge, set aside the conviction and sentence of Zahid Shakoor under section 302, P.P.C. And instead convicted him under section 304, Part I, P.P.C. And sentenced him to ten years' R.I. And a fine of Rs,25,000 or in default three years R.I. Benefit of provisions of section 382- B, Cr.P.C. Was given to him. Feeling aggrieved by the judgment of the Lahore High Court, Lahore, Muhammad Ajmal complainant filed a petition for leave to appeal No,386-L of 1992 in which leave to appeal was granted on 16-3-1993 against the respondent Zahid Shakoor to examine the nature of the offence committed by him. The Petition for Leave to Appeal to the extent of Abdul Shakoor was dismissed.
7. Learned counsel for the appellant has argued that the offence committed by Zahid Shakoor was a murder punishable under section 302, P.P.C., in that, Muhammad Shahid deceased was empty- handed and had not provoked the accused in any manner and in spite of that the respondent had given a blow by sickle with sufficient force cutting major blood vessal of the neck penetrating up to right lung.
' Learned counsel appearing for the State and the respondent have supported the impugned judgment.
8. We have carefully attended to the arguments addressed by the learned counsel appearing for the parties, in the light of the evidence on record and the circumstances appearing in the case. We feel that the impugned judgment is unexceptional. The parties are closely related to each other.
Muhammad Ajmal complainant and Abdul Shakoor acquitted accused--father of Zahid Shakoor respondent, are real brothers. Abdul Shakoor is the elder brother of Muhammad Ajmal. Zahid Shakoor admitted to have inflicted the injury with a sickle to Muhammad Shahid deceased. There was no previous enmity or ill-will between the parties. The respondent had no motive to kill the deceased. The occurrence took place at the spur of moment without premeditation. Zahid Shakoor was also injured during the occurrence which will show that there was a fight between the parties.
Zahid Shakoor respondent did not repeat the blow nor had he come to the spot armed with a sickle. Even according to the prosecution case, the sickle was in the hand of his father who was cutting the fodder just before the occurrence. It was during the occurrence that Zahid Shakoor respondent took sickle from his father. The High Court has observed that "if prosecution version be accepted that he was being belaboured by Muhammad Ajmal when Shahid deceased came there after he gave one injury which proved fatal. It would not be wholly unfounded to hold that he apprehended danger from Shahid and had come in aid of his father Muhammad Ajmal. In these circumstances, we are convinced that conviction cannot be sustained under section 302, P.P.C.
Because there was neither any motive nor the intention to kill the deceased." Despite this finding, the High Court has not altered the conviction from one under sections 302, P.P.C. To 304, Part I, P.P.C.
On the ground of respondent having exceeded the right of self-defence but has set aside the conviction under section 302, P.P.C. For the reason that Zahid Shakoor had no intention to kill the deceased.
9. On our independent assessm ent of the evidence and the examination of the relevant provisions of the Pakistan Penal Code, we are convinced that the offence committed by Zahid Shakoor respondent by causing the death of Muhammad Shahid was not murder punishable under section 302, P.P.C. Rather his act was fully covered by Exception 4 to section 300, P.P.C. Relevant provisions of law (sections 299, 300 (Exception 4), 304, P.P.C.) may be reproduced advantageously:-- "299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or ' 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- ' 3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ' 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
' Exception I.--....................................
Excepiton 2.--............... ..... .................
Exception 3.--.....................................
' Exception 4.--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 or unusual manner.
' Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death." ' or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
In circumstances of the case that the murder was committed without premeditation; the respondent had not come to the spot duly armed; the weapon used by him for inflicting injuries to the deceased was/is not a weapon of crime but an instrument normally used for cutting the fodder and that both the sides received injuries, it appears to be a case of sudden fight in the heat of passion upon a sudden quarrel over the deposit of the earth. The respondent had not repeated the blow. It is crystal clear that neither he had taken undue advantage, nor had he acted in a cruel or unusual manner. So, the act of the respondent of killing the deceased is culpable homicide not amounting to murder. He had no intention to cause the death of deceased though he knew that he was causing such bodily injury to him as was likely to cause his death. The offence committed by him was thus punishable under section 304, P.P.C. And not under section 302, P.P.C. The sentence awarded to him by the High Court is not inadequate, in the circumstances of the case.
9. The upsot of the above discussion is that there being no merit in this appeal the same is hereby dismissed.