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Criminal Appeal No. 365 of 1966, decided on 12th March 1968.

S. 304, Part II read with S. 300 Exceptions 1 and 4‑--Culpable homicide not amounting to murder---- Witnesses, related to deceased, omitting in evidence role of deceased in incident‑--Implicit reliance cannot be placed on evidence of such witnesses‑--Accused and deceased enjoying cordial relations between them before incident‑Deceased, younger in age than accused, abusing and pushing aside accused‑Accused in heat of moment in sudden quarrel giving kur (wooden part of plough) blow on deceased's head without taking undue advantage and without intending his death‑Accused, held, in circumstances, entitled to benefits of Exceptions 1 and 4 of S. 300‑Sentence of 3 years' R I. reduced to that already undergone by accused (about 2 years).

Kh. Muhammad Asghar for A. G. for the State.

Said (Saeed) son of Fazal Din, resident of Isharke, Police Station Sadar, Sheikhupura, has appealed through jail against his conviction under section 304, Part II, P. P. C., and a sentence of five years rigorous imprisonment for causing injuries to Sajjada deceased, which he knew, would, in all likelihood, cause his death and which in fact did cause his death.

2. The appellant and the deceased were both private servants of one Ghulam Hussain of village Trehun and had E en close associates since many years. It is in the evidence cat P. W. 5, Nazar Hussain, that both of them were on terms of utmost cordiality and the appellant used to call the deceased as his son.

3. It is alleged that on the 11^th of October 1965 at digarwela Sajjada wanted to put the fodder before the bullocks, of Ghulam Hussain, while the appellant insisted that the buffalo should be fed first. This led to a quarrel between the two followed by a grappling in the course of which the appellant picked up a kur (a wooden part of a plough) which was lying nearby and, struck the deceased with it on his head. The deceased fell down and died an hour later. The report was made before Muhammad Khan A. S. I. at 7 P.M. the same day. Said, Inayat, Boot and Nazar Hussain appeared as eye‑witnesses for the prosecution. Another piece of evidence produced at the trial was the extra -judicial confession allegedly made by the appellant before Karam Hussain Shah (P. W. 6). The eye‑witnesses being closely related to the deceased have not been relied upon by the trial Court.

Similarly, the evidence of extra‑judicial confession has also been discarded. The conviction has been made to rest solely on the statement of the appellant himself made under section 342 of the Criminal Procedure Code, wherein he admitted having struck the deceased with a blow by kur. His version was that Sajjada deceased wanted him to feed the bullocks first and not to put the fodder before the buffalo, whereupon the deceased engaged into a quarrel with him, abused him and pushed him aside. The learned trial Court has come to the conclusion that the circum stances of the attack entitled the appellant to the plea of grave and sudden provocation reducing the offence to culpable homicide not amounting to murder under section 304, Part II, P. P. C.

4. The deceased had sustained a contused wound bone deep, on the left side of the forehead, another one on the outer end of the left eye‑brow contusion on the upper lid of the right eye, besides two abrasions. On dissection of the skull a curved fracture was detected as well as that basic occiput bone, the floor of the left posterior fossa and of left middle cranial fossa.

5. I think it is safe to hold, as done by the learned trial Judge, that implicit reliance cannot be placed on the prosecution evidence as the witnesses, who are relations of the deceased, have omitted the role of the deceased in this incident, namely, the abuse given by him to the appellant and accompanied by the push as alleged by the appellant. The appellant was older in age to him. In the background of their cordial relations before the occurrence and the insignificant motive which led to the crime there is no doubt in my mind that the appellant acted in the heat of the moment in a sudden quarrel and gave a blow to the deceased with the kur which he picked up from the spot, without taking any undue advantage and without really intending the grief that has unfortunately been caused to the deceased. The deceased must certainly have abused the appellant and also given him a push to invite this attack on himself.

6. In this view of the matter, I think that not only was the appellant entitled to the plea of grave and sudden provocation under Exception I to section 300, P. P. C., but also he was entitled to the additional benefit of Exception 4 to section 300, P. P. C. The sentence of five years' rigorous imprisonment, in view of the circumstances of this occurrence, is to my mind out of proportion with the extent of the appellant's guilt. I consider that the sentence already undergone by him, which comes to about two years' rigorous imprisonment, fittingly meets the ends of justice. I had directed his release on the 5th of March 1965, on the undergone sentence and this judgment gives the reasons for the same.

Appeal accepted.

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