1. HAMOODUR RAHMAN, C. J.-The appellant in this case was convicted by the learned Additional Sessions Judge, Lahore, on the 25th October 1966, under section 302 of the Pakistan Penal Code for the murder of one Fazal Elahi on the 18th September 1965, between 5 and 6 p.m. In the locality of Ihata Karam Din in Garhi Shahu, Lahore and was sentenced to death. On appeal and reference a Division Bench of the High Court of West Pakistan upheld his conviction and. Confirmed his sentence of death. He applied for special leave to appeal from jail and leave was granted to him to consider as to "whether having regard to the facts and circumstances" of the case "the lesser sentence of transportation for life was not more appropriate" even though the Court was of opinion that the charge had "been brought home to him beyond any reasonable doubt".
2. The prosecution case against the appellant was that he had developed carnal relations with one Abdul Ghafoor (P. W. 11), the brother of the were of the deceased. The said Abdul Ghafoor, who used to live with his own brother Aftab Ahmad (P. W. 12) in the same locality, was fed up with this illicit relationship to which he was being forcibly subjected by the appellant. He accordingly left Lahore for Rawalpindi about seven or eight months before the occurrence. On his return to Lahore, after about a month's absence, Abdul Ghafoor at the suggestion of his brother Aftab Ahmad took up his residence with his brother-in---law, the deceased, in order to avoid coming into contact with the appellant. But the latter, in trying to establish contact with Abdul Ghafoor, picked up a quarrel with Aftab Ahmad, assaulted him and threatened him with dire consequences with the result that both of them were challaned in June 1964, under section 107/151, Cr. P. C. During the pendency of these proceedings on the 18th September 1965, between 5 and 6 p. m., the appellant went to the house of the deceased Fazal Elahi and started shouting, "Oh Abdul Ghafoor catamite come out". Abdul Ghafoor was not then present in the house so the deceased came out and tried to quieten the appellant by telling him that Abdul Ghafoor had gone to the oven. This did not satisfy the appellant who started abusing the deceased and creating a row. The deceased in his effort to pacify the appellant started taking him away towards the shop of Ghulam Hussain (P. W. 10), followed by his brother Muhammad Anwar. When they were outside the shop of Ghulam Hussain, the appellant became violent and began abusing the deceased. This led to exchange of abuses and grappling between the two. In the course of this the appellant suddenly whipped out a knife and gave two blows with it on the abdomen of Fazal Elahi deceased.
3. Muhammad Anwar tried to intervene but received knife blow on the back of his left thumb. He thereupon hurled a brick at the appellant which hit him on the head. The appellant ran towards graveyard but was chased by Muhammad Sharif (P. W. 8) and Sarfaraz (P. W. 9) who succeeded in apprehending him at a distance of about 150 karam from the spot. The knife was snatched from his hand and he was brought back to the shop of Ghulam Hussain. Then the deceased was removed to Ganga Ram Hospital and a report was lodged at the Police Station. The Police came and arrested the appellant, The blood-stained knife snatched from the appellant was also made over by Muhammad Sharif to the investigating officer.
4. The investigating officer seized blood-stained earth from a place outside the shop of Ghulam Hussain as also the shirt in the wearing of the appellant which was found to be blood-stained. The knife and the shirt were sent for chemical examination. The blood on the shirt was found to be of human origin but the origin of the blood on the knife could not he traced due to disintegration.
5. Fazal Elahi died in the Hospital at 7-20 on the 20th September 1965.
6. Two incised wounds were found on the deceased; one 2" long and 1/2" were penetrating into the abdomen in an upward direction and another near the umbli 3/4" long. The omentum was protruding from the first injury and the victim was bleeding pro--fusely. The abdomen was opened at the Hospital by enlarging the wound transversely in a medial direction at the level of oment and was later stitched up. It is for this reason that at the post--mortem examination only one stitched up stab wound was found of the length of 9". It was suggested to the doctor in cross-- examination that there was a possibility of the peritoneum having been cut accidentally by the surgeon while performing the operation. He admitted this possibility but stated that normally surgeons do not commit such mistakes.
7. Be that as it may the learned counsel appearing in support of this appeal has drawn our attention to the First Information Report and the evidence of the complainant Mohammad Anwar (P. W. 7) to establish that the stabbing was preceded by an exchange of abuses and grappling during the course of which the appellant "suddenly whipped out a knife and gave two blows with it to the deceased." This was after the deceased had been moved to a distance of about 300 yards from the house of the deceased where he was creating the rows.
8. This is supported also by Muhammad Sharif (P. W. 8), who stated that when he first saw them the appellant and the deceased were not only grappling but also hitting each other with their hands and they had come near the shop of Ghulam Hussain while still quarrelling with each other. He was subsequently asked in cross-examination and he again re-iterated that when he first saw the deceased and the accused they were not only quarrelling but were grappling and shouting and that the occur--occurrence, as he saw it, took place all of a sudden.
9. Malik Sarfaraz Hussain (P. W. 9) also confirmed that when he came out of the verandah of his house he saw the deceased and the appellant grappling and filthily abusing each other. To the same effect is the evidence of Ghulam Hussain (P. W. 10) who was further of the view that the fight, as he saw it, was a sudden one.
10. On the basis of this evidence learned counsel contends that this was a case in which the appellant had been provoked, for, he had actually been pushed out up to a distance of about 300 yards by the deceased and his brother Mohammad Anwar quarrelling and exchanging abuses with him and it was only at this stage that finding himself pitted against two persons, the appellant in a heat of passions, drew out his knife from his dub and suddenly gave the deceased two blows in quick succession. This was a clear case, therefore, of acting under provocation. Thus, even though the deceased was not armed, the sentence of death should not have been inflicted upon the appellant.
11. Learned counsel wanted also to argue that in the circumstances of this case the offence made out was not under section 302, P. P. C. But only one under section 326, P. P. C., not only because the appellant acted in self-defence but also because the death after two days may well have been due to the surgical operation performed upon the deceased at the hospital. There is no evidence, however, to support this. The doctor, it is true, admitted the possibility of the peritoneum being cut during the surgical operation, but maintained that normally surgeons do not make such mistakes.
12. There is nothing to show that the surgeon concerned in the present case had made any such mistake.
13. The plea of self-defence is also not available to the appellant in the facts and circumstances of this case for, there is no evidence that either the deceased or his brother Anwar was armed with any kind of weapon or put the appellant in any way in fear of death or of grievous hurt.