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Criminal Appeal No. 7 of 1952, decided on 29th July 1952, against the judgment of the Sessions Judge in Baluchistan, dated the 29th February 1952.

S. 300, Exception‑Deceased shot dead by accused on the former's taunting him that he was a catamite‑Taunt peculiarly provocative‑Offence reduced to culpable homicide not amounting to murder.

It is common knowledge in this part of the country that a Peghor (taunt) of this kind invariably leads to very grave consequences between the parties concerned. To call a young tribesman a catamite, in the presence of several others belonging to different tribes, especially when such a young man be armed with firearm and ammunition, is to court a sure trouble. There can scarcely be a Peghor more serious than this, among the tribesmen and it would not be surprising if the majority of young tribesmen were found to react always in some such manner under similar circumstances.

There was nothing on record to show that the act of shooting did not immediately follow the utterance of this serious aspersion on the moral character and dignity of the appellant's manhood. The very fact that he shot the deceased after these words had been spoken and the frankness with which the accused admitted his guilt indicate that he must have been actually deprived of his power of‑ self‑control when he heard the said words.

Conviction changed from 302, P. P. C. to 304, P. P. C.

M. K. Saggu for Appellant.

Muhammad Arif for Crown.

‑This is an appeal under section 410, P. P. C. against an order dated 29th February 1952, whereby the appellant Bahawal Khan was convicted of an offence under section 302, P. P. C. and sentenced to trans portation for life by the Sessions Judge in Baluchistan.

The facts of the case are set forth in detail in the judgment of the learned Sessions Judge and need not be reiterated here at length. Briefly, the convict‑appellant, while engaged in cleaning his rifle with other man of C‑l1 Platoon, Zhob Militia, shot dead a sepoy named Saleh Muhammad. He admitted having killed him, in the Court below, but pleaded that he had done so under a grave provocation. The appellant produced no evidence in defence but relied on the testimony of one of the prosecution witnesses, namely Mir Muhammad (P. W. 6), who had deposed that, before Saleh Muhammad was shot, he heard him (Saleh Muhammad) addressing Bahawal Khan as "Bakhir Pundu Tirok" (Hallo catamite). The assessors gave a unanimous verdict to the effect that the accused did commit the murder but it was accidental due to abuse. The learned Sessions Judge, though observing that no other sepoy present at the site heard any dispute between the accused and the deceased except one (prosecution) witness Mir Muhammad. Who stated that tile deceased addressed the accused in filthy language, accepted the allega tion regarding the utterance of the words, "Rakhit Piindt, Tirok'" but declined to accept the argument of the learned counsel for the accused that the offence did not fall under the definition of murder within the meaning of section 300, P. P. C. on the ground that the habits, manners, and feelings of the class of people to which the appellant belonged could not suggest that those words were provocative enough to overthrow the accused out of control. He therefore convicted him of the offence of murder but in view of his age and the abusive language on the part of deceased, instead of awarding capital punishment, sentenced him to transportation for life only.

The appeal has been ably argued before me by Dr. M. K. Saggu who brought to my notice various aspects of the case. I will however, confine myself to the question whether the words Bakhir Pundu Tirok', in the circumstances in which these were uttered, were provocative enough to deprive the appel lant of his power of self‑control and thus afford him the protection under exception to section 300, P. P. C. The rest of the points are either not very material or have been practically conceded by the learned Sessions Judge. It is common knowledge in this part of the country that a Peghor (taunt) of this kind invariably leads to very grave consequen ces between the parties concerned. To call a young tribesman a catamite, in the presence of several others belonging to, different tribes, especially when such a young man be armed with a fire‑arm and ammunition, is to court a sure trouble. There can scarcely be a Peghor more serious than this among the tribesmen, and it would not be surprising if the majority of young tribesman were found to react always in some such manner under similar circumstances. The learned Sessions Judge had apparently been influenced by some vague suspicion, when he remarked, the background of this offence was something else and the accused found an excuse at that time to kill the deceased there and then." No indication as to what that something was has been given, and it cannot therefore be said whether that "something else" was a factor which went in favour of or against the convict‑appellant, in this case. It was in my opinion the duty of the prosecution to establish that something, if the accused was not to benefit by absence of previous, preparation. Again there is nothing on record to show that the act of shooting did not immediately, follow the utterance of this serious aspersion on the morale character and dignity of the appellant's manhood. The very fact that he shot the deceased after these words had been spoken and the frankness with which the accused admitted' his guilt indicate that he must have been actually deprived of his power of self‑control when he heard the said words.

In view of the above, I am of the opinion that the accused has been guilty of only culpable homicide, not amounting to murder. I therefore change his conviction into one under section 304, P. P. C. and sentence him to rigorous imprisonment for five years and Rs. 500 fine, or, in default, to a further rigorous imprisonment for one year.

A. H. Sentence reduced.

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