' This criminal revision application is directed against the judgment of Sessions Judge, Tharparkar at Mirpurkbas convicting one Abdul Shakoor for offence under section 304(1), P. P. C. And sentencing him to undergo R. I. For 5 years and to fay a fre of R. 1,000 or in defaultto undergo R.I. For one year more. Since the mid Abdul Shakocr Ras not convicted for the major offence under section 302, P. P. C. For causing the murder of deceased Abdur Rab Nishtar ccmplairant Abdul Naina brother of the deceased has preferred this revision application against the acquittal of Abdul Shakoor in respect of the murder charge.
2. The prosecution case in brief is that deceased Abdur Rab Nishtar along with his brother Abdul Nairn resided in Railway Quarters; Mirpurkbas. On 27-10-1972 at about 12-30 p. m. Abdo. Rab Nishtar passed through Nai Para by the Qureshi Flour Mill where respondent Abdul Shakoor was standing.
The two exchanged hot words and deceased resented the remarks passed against him by respondent Abdul Shakoor. This led to a quarrel between the two and both of them grappled with one another. Abdul. Rab was stronger and older being 26 years cf age ; on the other hand Abdul Shakoor was a young lean boy of about 18 years of age. Deceased Abdul. Rab Nishtar dealt a fist blow to Abdul Shakoor when Abdul Shakoor wltipped out a knife from his pants pocket and stabbed Abdur Rab twice in the sternum and the chest. The incident was witnessed by prosecution witnesses Aril, Aijaz and Ahdullah. After the stabbing Abdul Shakoor started Tanning away when injured Abdur Rab Nishtar tried to pursue him, but he fell down after going for 20 yards and went unconscious. Witnesses Ant and Aijaz took injured Abdur Rab in a tonga to the hospital where Abdur Rab expired. A boy came and informed the mother of Abdur Rab that Abdur Rab had been stabbed and taken to the hospital. Complainant Abdul Naim brother of Abdur Rab on hearing the news went to the hospital and found his brother lying dead. Arif and Aijaz who were present there informed Abdul Naim of what had happened. Abdul Naim then went to Town Police Station, Mirpurkhas and lodged his F. I. R. At 2-00 p. m.
3. Mst. Shamim sister of respondent Abdul Shakoor came at the police station after half an hour and lodged a counter report. She stated in this, report that on the day of the incident at about noon time Abdul Shakoor was sleeping in the room and see was in the bath room of the house when Zahid, Pappu and deceased Nishtar came there and entered the bath room. Nishtar took out a knife, caught hold of her arms and threatend her to surrender for sexual intercourse. On her cries, her brother Abdul Shakoor reached there, and on seeing him Nishtar and his party went out. They grappled outside the house and Abdul Shakoor snatched the knife from Nishtar and stabbed him.
Zahid and Pappu then removed Nishtar to Hospital.
4. The Assistant Sub-Inspector then started the investigation, after these two reports were registered in respect of the same incident. The scene of offence was situated in Nai Para. And there was blood on the road; it was secured and sealed. Accused/respondent Abdul Shakoor was then arrested. He was wearing a blood-stained banyan which was secured and sealed. The accused then led the police party to his house and produced a blood-stained knife from underneath his bedding. This knife was also sealed. On the next day the accused was sent for recording of judicial confession before Sub-Divisional Megistrate, Naravelley. After completing the investigation the accused was sent up in Court.
5. The learned Sessions Judge found no difficulty in arriving at the conclusion that Abdur Rab Nishtar died as a result of knife injuries and that these injuries were caused by respondent Abdul Shakoor. Regarding the nature of the offence the learned Judge accepted the evidence of MN.
Shamim sister of Abdul Shakoor and also relied upon the judicial confession of Abdul Shakoor that the deceased had entered the house and had tried to criminally assault Mst. Shamim. Then strangely enough the learned Judge came to the conclusion that the plea of grave and sudden provocation raised by the accused could be justifiably accepted. He accordingly found the accused/ respondent guilty cf offence under section 304, Part I, P. P. C. And sentenced him to undergo R. I. For 5 yeses only and to pay a fine of Rs, 1,000.
6. It has been argued by Mr. Sadik All Khoja on behalf of applicant Abdul Naim brother of the deceased, that the learned Sessions Judge ought to have relied upon the ocular evidence rather than the counter version of the accused and his sister Mst. Shamim, as the evidence of Mst.
Shamim was not only interested evidence but it was also inherently improbable and unworthy of credence. That the judicial confession of Abdul Shakoor was self-exculpatory and contradictory to the evidence of Mst. Shamim.
7. According to the evidence of Mst. Shamim, while she was preparing to take bath and had removed her clothes, one man entered the house but his name she came to know subsequently as Abdur Rab Nishtar. He caught hold of her hand and asked her to submit to his lust. Then the accused and the deceased grappled with each other and went out of the house. The judicial confession of Abdul Shakoor on the other hand shows that she went to the bath room for taking a bath. All of a sudden a man called Nishtar crossed over the wall and went to his sister in the bath room and embraced her while she was taking bath. He then came out on her cries with a Dunda and gave a blow to Nishtar who was armed with a knife. Nishtar, however, gave a fist blow on the face of Abdul ahakoor. He gave a Dunda blow on the hand of Nishtar and the knife slipped from his hand. He then took the knife and stabbed Nishtar.
8. This confession does not appear to be either true or convincing, apart from the ocular evidence on record. How would the deceased have known that at 12.00 Noon Mst. Shamizn Akhtar had taken off her clothes and entered the bath room. How could he have jumped over the wall in broad daylight and attempted to commit rape on her, while her brother was lying in the room of the same house. There is no injury of any Dunda on the hand of Nishtar to corroborate the confession that Nishtar was carrying a knife and it had fallen from his hands due to Dunda blow given by the accused. If the deceased had been found inside the house, Abdul Shakoor would have raised hue and cry and collected people and deceased would have been caught and taken to the police station. Moreover the earlier report of Mst. Shamim Akhtar would show that the deceased entered the house along with Zahid and Pappu and he had threatened her in their presence. This story was later given up during the evidence as it was not supported in the confession also. There is, therefore, every reason to believe that this theory has been introduced to bring the case within the purview of an Exception to section 300, Pakistan Penal Code.
9. The ocular evidence on the other hand is of four witnesses Arif Hussain, Aijaz, Abdullah and Manzoor Hussain, According to the evidence of Aril Hussain the deceased and the accused exchanged harsh words when the deceased came near Qureshi Flour Mills where the accused was standing. It was because the accused passed some remarks against the deceased that the quarrel started. Both of them then grappled and the accused took out a knife from the pocket of his pants and dealt blows to the deceased. He and Aijaz then took the injured in a tonga to Civil Hospital, Mirpurkhas. The witness has definitely stated that the accused had come out frcm the shop of Semi Khan and he had not come from his house. The next witness Aijaz has fully corroborated Arif that the incident took place near the Chakki. That Abdul Shakoor vas already standing near the Chakki when Abdur Rab came there and due to some remarks there was a quarrel. Abdul Shakoor then took out a knife and stabbed Abdur Rab. This witness too has stated that he had not seen the deceased coming out of the house of the accused. The third eye-witness P. W. Abdullah is a resident of the place where the quarrel occurred. He was in his house when he heard noise of the quarrel. He came out and saw Abdul Shakoor and the deceased exchanging hot words. He has then stated that the deceased gave a fist blow to the accused. Then they both grappled. The accused took out a knife and stabbed the deceased. That the accused fled away from the wardat. That this incident took place at the distance of 40 paces from the house of the accused. The last witness Manzoor Hussain is also resident of the place near the Chakki. He has stated that deceased came from the western side and purchased the cigarettes and stayed near the Chakki smoking cigarette when the accused came there and exchanged some remarks.
Accused then returned after visiting his house and there was a quarrel, in the course of which the deceased was stabbed. That the deceased had given a fist blow to the accused and the accused in return had given him the knife blow.
10. It has not been shown by the learned Sessions Judge as to why the ocular evidence should have been discarded and the evidence of Mst. Shamim and the judicial confession should have been accepted instead.
11. A question then arises whether under the circumstances the case should be remanded for a retrial. It would appear from the evidence that there was in fact a sudden quarrel in which hot words were exchanged and then the deceased gave a fist blow to the accused/respondent and the accused retaliated by causing knife injuries one of which proved fatal. Tbe accused was a young boy of about 18 years and thin built. The deceased was, on the other hand, more stronger and about 26 years of age. A question would therefore arise, 1) whether the case of the accused would fall within the purview of Exception (IV)! To section 300, P. P. C. Ordinarily a case of stabbing with a knife on the region of the chest or sternum would fall within clause (iii) to section 300, P. P. C.
And the offence would be one of murder. In the present case, however, there was undoubtedly a sudden quarrel in the course of which the accused stabbed the deceased, The deceased was admittedly in the prime of his youth being 26 years of age and or stronger physique as compared to the accused who was a lean boy of about 18 years. The accused bad retaliated after the deceased had given him a fist blow. A question would therefore arise whether the case of the accused would fall under Exception (IV) of section 300, P. P. C.-death having been caused in a sudden fight in the heat of passion upon a sudden quarrel, The only point which has therefore, to be considered is whether the offender had taken undue advantage or acted in a cruel or unusual manner. There is no doubt that the quarrel was unpremeditated and the act was committed in the heat of passion as a result of sudden fight. For considering whether the accused/respondent bad taken any undue advantage over his victim or acted in a cruel or unusual manner, since the deceased was not similarly armed, we have to examine the facts and surrounding circumstances.
The deceased was a very strong man of 26 years of age as compared to the accused. The accused/respondent was just lean boy. He stabbed the other fellow after he was given a fist blow and out of the two injuries one was superficial but the other proved fatal. Now the mere fact that the appellant A used a knife would not per se show that be took undue advantage or acted in a cruel or unusual manner. In a similar case reported in Mohammad Salim v. State () in a sudden fight, the accused had struck one blow at the deceased with a knife and had then fled. It was held that the case was covered by Exception (1V) to section 300 and the accused was convicted undcr section 304, Part I, P. P. C. In the case of Haider Zaman v. The State (2), Haider Zaman a young man of 18 years was provoked by deceased Abdul Khalik, They both grappled but were separated.
Afterwards Abdul Khalil passed by the but of the accused and the accused uttered some words whereupen Abdul Khalik went forward and asked the accused what he had talked about. Thie was followed by grappling in the course of which Haider Zeman took out a knife from pocket and stabbed the deceased on the left side of his chest as a result of which Abdul Khalik collapsed on the spot. The appellant immediately ran away from the spot but he was chased and caught. It was argued in the case that since the accused had used a knife and caused the fatal blow, he had therefore, taken undue advantage. The defence counsel, however, relied on the decs ion in the case of Nasiruddin Haider v. The Crown (3). In that case also the accused had struck one blow to the deceased with a knife after the verbal quarrel and grappling: Upon the facts of
(1) 1969 SCM R 653 (2) PLD 1963 Kar. 228
(3) PLD 1950 Lab. 17 ' the case it was held that the case was covered by Exception (IV) to section 300, P. P. C. And the accused had not acted in a cruel or unusual manner. In another case Mohammad Shaffq v. The State I 0, the accused was 15 or 16 years of age and the deceased had jumped upon him and it was in this situation that the accused had taken out a knife and stabbed him causing him one injury the fight being unpremeditated and sudden. On these facts the conviction of the accused was altered from section 302 to one under section 304, Part I, P. P.
0. Whether the accused had taken undue advantage or acted in a cruel maener would, therefore depend upon the facts . Of each case and no bard and fast rule can be laid down in that regard. In the case of Haider Zeman referred to above Mr. Justice Farooqui had remarked as under:- "If in the circumstances and in the heat of the moment he gave one single blow to the deceased while they were still grappling it cannot be said that he either acted cruelly or took undue advantage. After all he was the weaker party and it is his state of mind which has to be taken into consideration in the circumstances having regard to the fact that he had already been beaten up once a short while earlier. It may also be noted that having wrested his hand from the grip of Abdul Khaliq he gave out one blow and releasing himself ran away from the place. We are, therefore, of the opinion that the case of the appellant comes within Exception IV to section 300 of the P. P. C. We therefore, alter the conviction of the appellant from section 302 to section 304, Part I, P. P. C."
In the present case also the respondent was weaker boy and he was being grappled by a hefty young man who was very much older to him and stronger. Under these circumstances tine respondent took out his knife and caused two injuries in the chest of his adversary and started running away. In these circumstances judging the state of mind it cannot be said that he took undue advantage or acted in a cruel or unusual manner. Mere use of C a knife per se against an unarmed adversary in such circumstances would not take away the case from the application of Exception (IV) to section 300, P. P. C. As the deceased though unarmed was more stronger and the manner of attack and the weapon used could not be said to be out of proportion to the offence. All the circumstances must be taken into consideration for deciding whether undue advantage was taken.
12. Now the plea for bringing the case under any of the Exceptions need not be made in so many words. The Court can take it into consideration even if it is not specifically pleaded, if the circumstances indicate that it is otherwise applicable to the facts of the case. Thus the fatal injury with knife inflicted on the chest would necessarily make out a case under section 302, P. P. C. If there are no indications that the case could fall within the ambit of an Exception to section 300, P. P.
C.
13. In view of these observations, the conviction of the respondent could be maintained under section 304, Part I, P. P. C. Though on different grounds and on consideration of the ocular evidence apart from the confession and version of Mst. Shamim Akhtar. It is not accordingly a case which should be remanded for a retrial on we ground that the offence committed by the accused would be a graver offence under section 302, P. P. C.
14. As a result of this discussion, I do not think it proper to interferela (1) PLD 1960_1,W'. 339 with the conviction and sentence though it may be justifiable on totalb [ different grounds.
15. The revision application is accordingly dismissed.