' A difference .Of opinion having arisen between my learned brothers, Agha All Hyder, J. (now Acting Chief Justice), and M. A. Rashid, J., over the question whether the appellant, whose guilt for the offence of murdering his father had been established, should be awarded the capital sentence or imprisonment for life, the difference of opinion has been referred to me for decision by my Lord the Chief Justice. My learned brother, Agha All Hyder, J., was of the opinion that there were mitigating circumstances in the case, in that the fatal assault on the deceased was an unpremeditated one and was preceded by grappling for a considerable time, which showed that it was not at least the original intention of the appellant to kill his father, and accordingly he took the view that the appropriate sentence was imprisonment for life, following his earlier decision in the case of Ayub v.
The State (1). On the other hand, my learned brother, M. A. Rashid, J., took the view that apparently the murder was a premeditated one, that the appellant had come armed with a knife to kill his father and that the normal sentence, in the absence of mitigating circumstances, was death, which sentence should be confirmed. For this view he placed reliance on a number of decisions, particularly the observations made by their Lordships of the Supreme Court in Huktnat Khan v.
Crown (2) and Rustam Khan v. State (3).
2. In order to determine the question whether there were at all any mitigating circumstances in the case and whether the fatal assault ."n the deceased was unpremeditated or was committed on the spur of the moment, it is necessary to briefly refer to some facts, which in my opinion have a bearing on this question. It was established that there was a dispute between the appellant and the deceased over division of their plot of land and in consequence thereof the appellant, some 2 months prior to the incident, had left the hut, which they were jointly occupying, one had shifted to another hut. It was also established that the deceased had objected to his daughter and her husband, first informant Nawab, sharing his but with them and had driven them out, which fact was severely objected to by the appellant.
3. At the trial of the appellant, 3 eye-witnesses were examined, namely, first informant Nawab, Bashir Ahmed and Shabbir. None of them has stated how the incident commenced, nor has any witness stated whether the appellant carried the knife, with which he subsequently caused the fatal injuries to the deceased, openly or had it concealed or in his pocket. Their evidence substantially is to the effect that there was grappling for some time between the appellant and the deceased, during the course of which the appellant stabbed the deceased, who died in consequence of the injuries sustained by him.
4. Mr. Z. U. Ahmed, the learned counsel for the appellant, has invited my attention to three circumstances in support of his submission that not only the fatal assault on the deceased was an unpremeditated one but was committed on the spur of the moment and in the heat of the passion, without perhaps realising the full consequences of the act. He submitted that no witness has stated how the incident actually commenced and whether the grappling was preceded by any exchange of hot words or abuses between the deceased and the appellant. He next relied upon the fact that there was no evidence to show that the appellant was carrying the knife openly when he came towards the house of the deceased and it may well be that it was his custom to carry the knife. His last ground was that the medica evidence shows that all the 3 injuries on the deceased were on the back part of the deceased, thereby giving support to the testimony of first informant, {{FOOT NOTE}}
(1) PLD 1974 Kar. 1 (2) 1969 SCM R 575
(3) 1972 SCM R 657 {{FOOT NOTE}} Nawab, that the deceased was sitting over the chest of the appellant and pressing his neck when the appellant stabbed the deceased.
5. I have carefully examined the medical evidence which shows that all the 3 injuries on the deceased were on the back, shoulder and the back of the neck. Ordinarily, the appellant could not have caused these injuries to the deceased unless they were so grappling together in a hand to hand fight that use of the knife in the front portion of the body was not possible, or alternately the deceased was sitting over the appellant in such a position that the appellant could only strike the deceased in the back parts of his body.
6. The fact that the appellant and the deceased were grappling with each other for some minutes clearly suggests that the fatal assault on the deceased was an unpremeditated one and was in the heat of the moment. Furthermore, there is no evidence to show that at the time when the appellant and the deceased were grappling with each other, the appellant had a knife in his hand.
On the contrary, the fact of their grappling for some length of time seems to exclude the probability of the appellant having the knife in his hand at that time. I am inclined to the view that it was in the course of the grappling and perhaps by reason of something said or done by the deceased that the appellant apparently lost control over himself, whipped out a knife and unfortunately killed his.
Father.
7. While I am. In respectful agreement with my learned brother, M. A. Rashid J., that the normal sentence for murder is capital sentence, but if there are mitigating circumstances then the appropriate sentence would be the lesser sentence. Absence of premeditation and committing of a murder on the spur of the moment and in the heat of the moment, in my opinion, do ordinarily constitute mitigating circumstances for the award of a lesser sentence, except in cases where death has been caused in a cruel or in an unusual manner. Even in Hukmat Khan's case it was observed by Muhammad Munir, C. J. That "it is undoubtedly true in this case that such premeditation as usually calls for a sentence of death was absent". In that case the death sentence was confirmed mainly on the ground that the High Court had considered such a sentence appropriate in the circumstances of the case and their Lordships of the Supreme Court agreed that Hukmat Khan had acted in a very cruel manner.
8. Mr. Z. U. Ahmed has placed reliance on the decision in Muhammad Salim v. The State (I). In that case, there was a background of bitterness between the parties over the transfer of a house by the Settlement Department. In consequence of this bitterness, there took place a brawl between the appellant and the deceased, and in the course of exchange of abuses and fist blows the appellant took out a knife from the fold of his loin-cloth and gave 3 blows with it to the deceased who fell down and died instantaneously. It was held that "taking into consideration the exchange of abuses and fist blows which preceded the stabbing of the deceased" that a lesser sentence would meet the ends of justice.
9. I would finally like to refer to the case of Karim Bux v. The State (2) to the decision wherein I was a party. In that case, the appellant had caused 5 knife injuries to the deceased. However, there was absence of premeditation to kill on the part of the accused and further it was found that the accused and the deceased had grappled with each other for half an hour before the appellant launched the fatal attack on
(1) 1972 SCM R 249 (2) PLD 1977 Kar. 10S the deceased. It was also found that the genesis of the quarrel was shrouded in mystry as to how and over what it started. In the circumstances, the death sentence awarded to the appellant was substituted by that of imprisonment for life.
10. The facts in the instant case bear an analogy to those in Karim Buz's. Case. Taking into consideration the absence of premeditation to kill on the part of the appellant, the grappling which preceded the stabbing of the deceased and the further fact that all the injuries on the deceased were caused on his back parts, I find myself in respectful agreement with my learned brother, Agha A All Hyder, J., that in the circumstances of the case the lesser penalty would be appropriate. I would accordingly direct that the death sentence awarded to the appellant be substituted by a sentence of imprisonment for life.