KHALILUR RAHMAN, J.-Appellant Sarfiaz was tried by Additional Sessions Judge, Multan on a charge under section 302, P. P. C. For having caused the death of Zafar Iqbal, a student of Government Degree College, Bosan Road, Multan. He was convicted and sentenced to life imprisonment and a fine of Rs. LOCO. In default of the payment of fine, he was to suffer further rigorous imprisonment for one year. Finally he had to pay a sum of Rs. 2,Ce0 as compensation to the heirs of the deceased under section 544-A of the Code of Criminal Procedure. He has appealed against his conviction and sentences.
2. Prosecution case as disclosed in the police report recorded on the statement of Bashi? Ahmad (P. W. 12) at 10-45 a, m. On 20-2-1975 at Police Station Sadar, Multan, is that at 8-45 a. m. Deceased Zafar Iqbal and some other students sitting on a bench near the strong room, were talking amongst themselves. Complainant Bashir Ahmad P. W. Had just arrived the College on his bicycle and was a few paces away from the strong room when the appellant came there and gave a filthy abuse to the deceased. He, simultaneously, stepped a pace behind and took out a dagger which he had kept tied on his left leg. Shouting 'Lalkara' that he would not apare the deceased, he aimed a dagger blow at the abdominal region of the deceased, which, however, landed on the right groin.
The complainant with the help of the other students present rescued the deceased from the hands of appellant, who, with his weapon, ran to his house. The deceased was removed to Nishtar Hospital, Multan, where after a few minutes he succumbed to the injury.
3. As to the motive of the crime, it has been disclosed that 3 or 4 days prior to the occerrence, the appellant and one Najaf Khan had a strife when the appellant attempted to injure Najaf Khan with a knife. The deceased, in that incident, sided Najaf Khan and rescued him from the clutches of the appellant. This annoyed the appellant, who had, even, sent a message to the deceased a day before, that he should not attend the College or would be done to death, The message did not reach the deceased, who came to College and met his death.
4. The statement of the complainant was recorded by Seeder Ali A. S. I. In the hospital, who had gone there having received a phonic message from the Principal of the College. The formal F. I. R.
Was recorded by Mumtaz Hussain, Head Constable. On the completion of the investigation, the appellant was challaned and ultimately convicted at the trial, as indicated above.
5. Dr. Muhammad Zubair (P. W. 2) who was examined as P. W. 6 by Committing Magistrate, examined the deceased when alive. He found an incised wound 1' x 1/3" in the right inguinal area oblique direction, 3" from the mid-line and he did not make a probe as to the depth of the wound.
The injured person died within 20 minutes of the examination. Dr. Abdul Wahid (P. W. 1) performed the post-mortem examination on the dead body and found the following injury :-
(1) An incised wound x 1/3 x 1" on the right inguinal area obliquely verticle in direction 3i" from the mid-line on the upper end of right thigh under this the femoral art; y was cut.
Death in the opinion of the doctor occurred due to haemorrhage and shock on account of the injury which had cut the lYg blood vessel.
6. Appellant Sarfraz Ahmad was examined by Dr. Allah Nawaz (P. W. 3) on 22-2-1975 who found the following injuries on his person :-
(1) Defused swelling 2' x 2" on the right cheek which is reducing in condition.
(2) Snelling zr x 2' on the right side of the nose after reducing in nature.
(3) Swelling 2' x 1' on the left cheek.
(4) Three liner cut about 2i" on the left upper (ii) 1 x x skin deep medial pelmet..
(5) Two incised wounds 11( x skin deep with west side of right hand.
(6) Two liner cut x 1' on the Palmer side of right hand between thumb and right index finger.
At the request of police vide Ruqqa Exh. P. Q., the witness gave a further opinion vide Exh. P. Q./1 that the possibility of all six injuries being self-suffered or caused by friendly hands cannot be excluded.
He denied the suggestion that his latter opinion was under the influence of some person or the police and asserted that it was based on his own observations. Appellant was got examined again on 24-2-1975 when Dr. Abdul Wahid (P. W. 1) found the following injuries on his person : -
(1) 2 incised wounds 1 r and 1' sunerrcial in nature -r apart parallel each other on the right hypothenar emenance covered with scab.
(2) A linear very superficial incised wound 1 id which was interrupted in its middle on the right palm f' Mow the root of index finger and obliquely going to the root of index finger.
(3) Two linear very superficial incised wounds j," apart on the radial side of the right palm i" from the root of index finger.
(4) Two linear very superficial incised wounds covered with scab 'Ting side by side and 513o crossing and overlapping at one place each measuring 2" and 1' on the outer aspect of left arm vertical in direction 3' above the elbow-joint The injuries were simple caused by sharp-edged weapon and were of about 4 days duration. He admitted that at the time of his examination the report Esh. P. F. Of the medical examination of the appellant by P. W. 3 was before him. According to him, injuries Nos. 1 to 3 in the report of P. W. 3 were mere swelling which had subsided and were not present at all at the time of his examination.
7. The appellant in his statement under section 342, Cr. P. C. Denied the allegations, and pleaded not guilty. He denied the recovery of the dagger (P. 3). He gave his own version of the occurrence which in his own words is as follows :- "The case is false. I never had a quarrel with anybody in the college. On the day of the occurrence I placed my cycle at the college cycle-stand and was going to my class-room. When I passed by the deceased and his companions, he cut a very filthy joke with me, as he used to do with all students, being a bully. I asked hilt to shut up. He crossed the watercourse and pounced upon me and dealt me several fist blows, after some of which the deceased took out a knife and gave me cuts. I caught hold of the knife by its blade and my hands were injured, but I did not let it go. The deceased was jolding ma down from my back and during this struggle, when I tried to curl the knife on him, he got injured and relaxed his hold on me, upon which I tan away."
8. Learned counsel appearing for the appellant argued that the conviction of his client under section 302, P. P. C. 13 not warranted in law and that his case was coveted by an exception contemplated in section 96 of the Pakistan Penal Code as he in causing the death of Zafar Iqbal, acted in the exercise of the right of private defence. In the alternative it was argued that, in any case, the facts as presented, indicate that the occurrence was the result of a sudden flare up and the appellant not having taken undue advantage and not having acted in a cruel manner, the case was covered by Exception (4) to section 300, P. P. C., the conviction, therefore, should have been under section 304, Part I, P. P. C. He referred to Muhammad Shalt' v. Sadar Din and others and 'Shah Muhammad v. The State .
9. The learned counsel appearing for the State on the other hand argued that it was a premeditated and well-planned murder. There was a motive for the attack. The appellant came armed with a dagger and approached the appellant, who was sitting on a bench among some fellow students. He attempted to Lit the deceased right on his abdomen but the blow landed on the right groin and went deep cutting the main blood vessel. The appellant in the circumstances of the case had no right of private defence nor was the occurrence on account of a sudden flare up.
Learned counsel in his ultimate submissions emphasized that the appellant his been rightly convicted under section 302, P. P. C.
10. I have given my anxious consideration to the arguments raised. I have gone through the entire evidence with the help of the learned counsel for the appellant.
11. The learned trial Judge has rejected the defence version that the appellant had acted in the exercise of his right of self-defense. He has accepted the ocular testimony and recovery of dagger at the instance of the appellant. He has shown some doubts as the existence of motive, yet in arriving at the conclusion that it was a premeditated and well-planned murder, he seems to be impressed by the circumstance that the appellant had come to the College armed with a formidable weapon. The injuries on the person of the appellant, in his view, are self-suffered and fabricated.
12. It will be seen that occurrence itself is not disputed, the defence disputes only the manner in which it took place. Three points, therefore, will arise for determination :- Firstly if it was a premeditated and planned murder and the appellant has been rightly convicted under section 302, P. P. C. ; secondly if the deceased was an aggressor and the appellant had acted in the exercise of his right of self-defence ; and lastly if the unfortunate occurrence was the result of a sudden flare-up and the appellant not having acted in a cruel manner, the case Is covered by any of the Exceptions to section 300, P. P. C. ?
13. Coming to the first of the three formulations I propose to take up the item of motive to begin with. I agree with the view of the learned trial Judge that failure to discover the motive for an offence does not signify Its nonexistence ; and failure to produce evidence of motive is not fatal to the prosecution case. But motive is sometimes important as evidencing a state of mind which is an essential element in the offence charged. In estimating, as in the instant case, the probabilities its motive cannot, in general sense, be safely left out of the account. Motive, though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the qiestion of intention. The existence of motive, therefore, if not established, shall have a great bearing on the determination of the question if it was an intended murder. The motive, as set up in the F. I. R. Is that 3/4 eays prior to the occurrence the appellant and one Najaf Khan had a quarrel,1 2 when the appellant attempted to injure Najaf Khan with a knife. The deceased, in that incident, sided Najaf than and rescued him from the appellant's hands. Najaf Khan has not been produced.
Bashir Ahmad P. W., complainant in the case, in his examination-in-chief has stated that he was unaware about the background of the occurrence. He, however, added that immediately after the occurrence, he had learnt from the students, who had gathered on the spot that a day cr two before the occurrence Sarfraz and Najaf had a quarrel, when deceased intervened on behalf of Najaf and this had annoyed the appellant. None of the students from whom the witness had learnt about the previous incident has been produced as a witness. This part of the statement of the witness, therefore, is nothing but a hearsay and shall have to be excluded. The other witness of the occurrence is Muhammad Asif (P. W. 13). He is also silent on the point of motive. There is no other evidence even worth the name as to the alleged motive. I am, therefore, of the view that the prosecution has not been able to prove the existence of any motive for the crime.
14. This brings me to the ocular testimony. According to P. W. 12 Bashir Ahmad, who is also complainant in the case, the deceased alongwith Arshad, Hanif and Asif were sitting on a bench lying in front of the strong room. Arshad and Hanif have not been produced. The witness was near the strong room when his attention was attracted towards the place of occurrence at an alarm and he heard that the appellant had abused the deceased. Tee deceased got up from the bench and walked up to a distance of 3/4 paces from the bench. Reference to the plan Pah. P. S. Would show that a watercourse runs in-between the tench where the deceased was sitting and the place of occurrence. The deceased, therefore, while advancing towards the appellant had gone over to the other side of the watercourse. The appellant then stepped back and untied the dagger from his left leg. He gave one injury to the deceased and at the request of the witness did not inflict any more blow and ran away. Professor. Ghulam Qadir Lashari e lso came to the spot, who too has not been examined. He is silent as to the injuries received by the appellant. However, in cross- examination, he denies that the appellant received any fist blow or any injury with a knife in the occurrence. The other eye-witness Muhammad Asif (P. W. 13) is also a fellow student, and was sitting on the bench alongwith the deceased immediately before the cccurrence. He supports P. W.
12 as to the main occurrence. In cross-examination he admits that Zafar Iqbal deceased crossed the watercourse and went nearer to the appellant. He also admits that the deceased raised his arm and aimed a blow at the appellant. He is, however, not sure if the blow had hit the appellant.
There is no reason to disbelieve the two eye-witnesses of the occurrence. Defence has not shown that they were in any manner inimically disposed towards the appellant or that they had any motive to falsely implicate the appellant or to exaggerate the incident. According to the two eye- witnesses the appellant abused the deceased and the deceased had then crossed the watercourse and proceeded towards the appellant. He even aimed a blow at the appellant. It would be difficult to infer from this circumstance alone that the appellant had come to the College with the intention of killing the deceased or had in any manner premeditated the design. Ho was not holding the knife in his hand at the time when the quarrel started. The knife was admittedly tied under his trousers on his leg. It is also in evidence that the deceased was a stout well-built person.
He was taller than the appellant. It seems that when the appellant apprehended that the deceased was about to hit a blow, he bent down and untied the knife. I am not impressed by the reasoning of the learned trial Judge that as the appellant had a dagger on him, it will be presumed that he had come with an intention of killing the deceased. The tendency, though unfortunate, is growing among the students that they generally carry lethal arms. In the absence of any motive, it will, therefore, be unsafe to bold that the appellant had any premeditation or that he had design to cause the present murder.
15. Now adverting to the plea of the appellant that he was attacked by the deceased, who gave him fist blows and then took out a knife and caused him cuts ; he (the appellant) caught hold of knife by its blade and the deceased while jolding him from the back, got injured and relaxed his grip on the appellant. The story does not convince any sense of logic and it would be difficult to accept the same. The two eye-witnesses of the occurrence were not even cross-examined on these lines. I have already formed the view that the eye-witnesses have no motive to falsely implicate the appellant or to exaggerate the incident. There is equally no motive to suppress the actual manner in which the occurrence took place. The nature of the injuries allegedly suffered by the appellant and their dimensions indicated that they are self-suffered. I even doubt the correctness of the medical report of the appellant by Dr. Allah Nawaz Khan, who w examined as P.
W. 12 by the Committing Magistrate. He examined the appellant on 22-2-1975 and had reported that the appellant had swelling on his right cheek, nose and the left cheek. The appellant was got again examined on 24-2-1975 by Dr. Abdul Wahid, Medical Officer, Civil Hospital. Multan, who did not notice any swellings and found only some linear superficial cuts. I, therefore, have no hesitation in totally rejecting this version of the defence. The version of the appellant moreover is in conflict with the plea of self-defence. If we accept the appellant's version of the occurrence that the deceased was accidentally hit in the struggle when the appellant attempted to release himself from the grip of the deceased, the plea that appellant injured the deceased in self-defence, falls. It would, therefore, be difficult to accept the contention of the learned counsel that the appellant had acted in the right of private defence and that his case is covered by an exception contemplated in section 96 of the Pakistan Penal Code.
16. I am taus left with the third alternative only. It aepears that the appellant abused the deceased, who retaliated to it and advanced towards the appellant and even crossed the watercourse.
Possibility cannot be ruled out that the deceased had also cut some joke with the appellant for which he had abused him. P. W. 13 admits that he had seen the deceased raising his arm and aiming a blow at the appellant, P. W. 12 complainant in the case was yet at some distance and, therefore, he might be in doubt as to the actual origin of the quarrel ; his attention was attracted only when be bad heard some alarm. I am, therefore, of the view that the fateful occurrence was the result of sudden flare-up and the case is therefore, covered by Exception 4 to section 300, P. P.
C. Even if there is some doubt on this aspect of the case the benefit of doubt shall go to tee, appellant. It is in evidence that the appellant having given one blow had stopped giving any farther blow at the request of the witness. He, therefore, does not seem to have taken undue advantage or acted in a cruel manner. The appellant, however, A is attributed an injury, which had cut the main blood vessel. The offence,' in my view, falls within the definition of culpable homicide not amounting to murder and punishable under section 304, Part I, P. P. C. The learned counsel appearing for the State relied on Muhammad Siddque v. The State to argue that even if the death occurred by a single blow on the thigh, cutting the main blood vessel the case is covered by clause (111) of section 300 P. P. C. And conviction under section 302, P. P. C. It not open to any exception. The case proceeds on its own facts and is clearly distinguishable. The accused in that case was held to be an aggressor and the motive for the crime was else established. The rule laid down in this case is not, therefore, attracted to the facts of the present case. In Shah Muhammad v. The State a case where without any motive or intention to kill, the accused gave a Lathi blow at the head of the deceased, nephew of the accuse& the convictiou under section 302, P. P. C. Was altered to section 304, Part II, P. P. C. Similarly in Muhammad Hart v. The State the death having caused by a single knife blow on the chest in an occurrence having developed in a heat of passion, the conviction of the accused under section 304, Part I, P. P. C. Was upheld.
I am of the view that the conviction under section 304, Part I, P. P. C. Would be appropriate in the instant case. I, therefore, alter the conviction of the appellant from section 302, P. P. C. To section 304, Part I, P. P. C.3 4 5 This brings me to the question of sentence. The tendency among the students to carry lethal arms on their persons is on the increase. Over patty quarrels young students freely resort to the use of lethal weapons. The sentence, therefore, should be somewhat deterrent. I, therefore, while altering the conviction from section 302, P. P. C. To section 304, Part I, P. P. C, sentence the appellant to a term of seven years' rigorous imprisonment and a fine of Rs. 1,001 The appellant will also pay a sum of Re. 2,000 as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. As ordered by the learned trial Court. 1972 SCMR 419 PLD 1970 Lab. 757 1970 SCM R 313 PLD 1970 Leh. 757 PLD 1971 Lab. 222