' FAZAL ILAHI KHAN, J.---This appeal with leave of the Court is directed against the judgment and order dated 6-6-1991 passed by a Single Judge of the High Court of Sindh at Karachi in Criminal Appeal No,54 of 1990 whereby accused/respondent's conviction under section 302, P.P.C. Was altered to his conviction under section 304, Part II, P.P.C. And he was sentenced to 5 years' R.I. Fine for Rs,10,000 was maintained but in default of payment of fine the respondent was to suffer 3 months' R.I.
2. The occurrence took place on 3-3-1985 at 19-15 hours near the house of Abdullah Tel Wala, in a public street No,6, Kot Ghulam Muhammad, Town , District Tharparkar, in which the appellant's brother Akhlaq was murdered by the accused/respondent No,1, by giving him dagger blow.
3. In the report lodged by the appellant on 14-5-1985 at 12 Noon in Police Station, Kot Ghulam Muhammad it was stated that the appellant alongwith his family consisting of 7 brothers residing in a joint ancestral house, were running two different business concern. The business of Baker/Confectioner was being managed by the complainant and the other one was managed by Akhlaq Ahmed deceased and Javaid their brother. That 6/7 months prior to the occurrence Aijaz alias Jajji accused son of Ali Muhammad had borrowed Rs,100 from the deceased and in spite of repeated demad he failed to return the amount on false promises of its payment at the earliest. On 14-5-1985 Akhlaq deceased had gone out to purchase ice while the complainant was following him. On reaching the place of occurrence he saw the accused coming from the opposite direction in the street. The deceased Akhlaq demanded the loan but the accused refused which led to the exchange of hot words. In the,meanwhile Ch. Akhtar Ali also arrived at the spot and they were proceeding towards the deceased when accused/respondent drew out a dagger from his trousers-fold and attacked Akhlaq deceased who was hit and fell down on the ground. Thereafter, the accused decamped from the spot.
4. The injured was 'removed to hospital and got admitted but on the arrival of Akhtar (P.W.2) and Councillor Mehmood Akhtar they managed to refer the injured to Civil Hospital, Mirpurkhas. On arrival of the father of injured the injured was shifted to Hyderabad.
5. After registration of the case by Nazar Muhammad S.I. The investigation was handed over to Dastar Ali, S.H.O. (P.W.13). The injured expired on 14-1-1985, whereafter the offence under section 307, P.P.C., under which the case was initially registered, was altered to section 302, P.P.C. The accused was arrested on 13-5;1985 who made a confessional statement before the Mukhtiarkar and F.C.M., Kot Ghulam Muhammad which is Exh.P.19. After completion of the investigation the accused was put on trial in the Court of Additional Sessions Judge 2nd, Tharparkar at Mirpurkhas.
6. Prosecution supported its case and relied on ocular evidence furnished by Muhammad Ashfaq (P.W.1) and Akhtar Ali (P.W.2), corroborated by Maqsood Ahmed (P.W.3) and Mehmood Akhtar (P.W.4), recovery of dagger, the weapon of offence at the pointation of the accused. Further, corroboration was sought from the medical evidence furnished by Dr. Abdur Rashid (P.W.9) and Mr. Anwar Hussain (P.W.14). The confessional statement recorded by Mukhtiarkar and F.C.M., Kot Ghulam Muhammad is Exh.P.19.
7. The accused examined under section 342, Cr.P.C. Who denied the allegation and did not make his own statement on oath in rebuttal of the prosecution case.
8. The learned Additional Sessions Judge held that the prosecution was successful in proving the case against the accused beyond any reasonable doubt through overwhelming ocular and circumstantial evidence, hence convicted him under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs,10,000. The major penalty of death was not awarded for the reasons given in the judgment.
9. In appeal by the convict the Lahore High Court basing reliance on Yousaf v. The State (1984 P.Cr.LJ 1982) altered the conviction from section 302, P.P.C. To one under section 304, Part II, P.P.C.
And the sentence of life imprisonment was reduced to 5 years' R.I.
10. Learned counsel for the appellant contended before us that the learned High Court erred in holding that the offence made out in the prosecution evidence falls under section 304, Part II, P.P.C.
And in support of his contention the learned counsel referred to us prosecution evidence to show that none of the provision of section 300, P.P.C. Bringing out the offence of culpable homicide amounting to murder to that of culpable homicide not amounting to murder.
11. In order to appreciate the contentions of the learned counsel for the appellant it may be beneficial to recall that the accused was inducted to and when he came across him he repeated the demand. This annoyed the accused whereupon there was an exchange of hot words. The question; whether, the demand made by the deceased in any way could have provoked the accused so as to enter into controversy and exchange of hot words with the accused and its benefit can be extended to him in order to bring his case within the exceptions to section 300, P.P.C.
In order to determine the nature of the offence the question which requires determination is; whether, demand of loan and its refusal by the accused entering into controversy and exchange of hot words can fall within the Exception 4 to section 300, P.P.C. Punishable under section 304, Part II, P.P.C. Demand of loan is a right of a creditor and is a lawful act to which no exception could be taken. No evidence has been led to show nor anything has been brought on record that the deceased acted in a manner which deprived the accused/respondent of the power of self-control.
In such case the provocation if any set up as a defence can be taken to be self-assumed and voluntary. The learned High Court has not gone into this aspect of the case before placing reliance on the precedent case referred to above. The accused was already armed with a dagger in his trousers-fold and on demand made by the deceased the accused entered into altercation, acted rashly and drew out dagger from his trousers-fold and stabbed him on the vital part of his body i,e.
Chest. Under section 300, P.P.C. Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or if it is done with an intention to cause such a bodily injury, the effect of it would be likely to cause the death of the person to whom such injury is caused. But culpable homicide is not murder whereby the accused is deprived of the power of self- control by grave and sudden provocation causing death of the person who gave the provocation or causes the death of any other person by mistake or accidentally subject, however, to the proviso given in section 300, P.P.C. The question; whether on the evidence on record the learned High Court was legally correct in reaching the conclusion that the offence of culpable homicide did not amount to murder. We have been led through the prosecution evidence and it in a substance fully supports the first information report. The blow given to the deceased was so severe that there was found cumulative fracture of 7th and 8th ribs on left side which imparted the knowledge to the accused, the intention of causing such bodily injury which was likely to cause death of the deceased to whom the stab was given. Furthermore, the injury was sufficient in the ordinary course of nature to cause the death. The learned High Court has not adverted to this aspect of the case.
The precedent case relied upon by the learned Additional Sessions Judges has not been distinguished while converting respondent's conviction under section 302 to section 304, Part II, P.P.C. By the learned High Court. The precedent case Yousaf v. The State referred to above, and on which reliance has been placed by the learned High Court, is quite distinguishable on merits. In that case the medical evidence was silent on the point; whether, the injury caused to the victim was sufficient in the ordinary course of nature to cause death. It is needless to say that the prosecution evidence in juxtaposition with the defence version is a determining factor of the nature of the offence committed by the respondent. The Courts below have found the accused/respondent guilty for having inflicted a dagger blow on vital part of the deceased. This injury, in ordinary course, is sufficient to cause the death as opined by the Doctor. Merely an altercation having taken place between the accused and the deceased on demand of loan will not bring the offence committed from murder to culpable homicide not amounting to murder.
' For the reasons stated above we accept this appeal, set aside the judgment of the learned High Court and restore that of the trial Court.