The burden, it is trite, is on the accused to show before the court that the offence allegedly committed by him would fall within the sweep of Exception 4 contained in the erstwhile section 300, P.P.C.

2021 LHC 841

According to the prosecution witnesses the appellant came armed at the place of occurrence on a motorcycle and then fired at the most vital part of the deceased causing his death. Apart from that ,the pistol was pre-loaded with bullets. The appellant was aware that if the pistol is fired from, that would cause a fatal injury and if the injury was caused that shall be fatal and in ordinary course cause death . It is not necessary that the injury must be such as would make it impossible for the injured to escape death. All that is required to be proved by the prosecution is that the injury intended must be such as would in the ordinary course of nature be sufficient to cause death. According to the prosection witnesses, the appellant used the pistol to aim and land the fire at the chest of the deceased and hence was fully aware of the consequences of the said act. The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused and the weapon used in causing such injury which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the appellant fired at the deceased and the bullet hit anterior axillary fold of armpit, towards the lateral aspect of left upper chest and entered the body of the deceased . This act of the appellant , though solitary in number had injured pleuras, left lung diaphragm and their associated blood vessels leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a firearm weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The nature of weapon used and the part of the body where the fire was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent. Exception 4 of the erstwhile section 300 of the PPC covered those cases where an offender causes death „without premeditation in a sudden flight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner’.

The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. All the circumstances indicated in Exception 4 must simultaneously co-exist to justify the invocation of Exception 4.It is to be noted that the word 'fight' occurring in Exception 4 contained in the erstwhile section 300, P.P.C. is not defined in PPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. 'Sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There must be no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. Exception 4 jurisprudentially must be reckoned as a humane provision accepting the fact that even the most rational of men may under the heat of passion do acts which they may not have done or would not do if saner faculties were to prevail. To such persons, law in a humane manner, permits mitigation if and only if it is proved that the passion happened to run in a sudden fight upon a sudden quarrel.

Murder Reference No.86 of 2017
(The State Vs. Haq Nawaz)
Criminal Appeal No. 520-J of 2018
(Haq Nawaz Vs. The State)
2021 LHC 841