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Criminal Appeal No. 238 of 1970, heard on 21st July 1972.

---S. 302 read with S. 304, Part II Grave and sudden provocation-Altercation between accused and deceased, his real father, on demand of accused for providing him with separate livelihood-Accused causing three hatchet injuries one on deceased's head and others cm arms-Medical evidence revealing blows given by accused not with full force and injuries caused thereby proving simple-Accused, held, had no intention to cause death or to cause such bodily injury as was likely to cause death, in circum stances - Conviction under S. 302 altered to one under S. 304, Part II.

Appellant through Jail

Nemat Khan for A: G. for the State.

Date of hearing: 21st. July 1972.

Allah Bakhsh, aged 25 years, has called in question the judgment and order of leaned Sessions Judge, Jhang dated 31st March 1970, whereby he was convicted under section 302, P. P. C. and sentenced to transportation for life for the murder of his own father Kamir, aged 75.

The prosecution case, as disclosed by Khuda Bakhsh P. W., a step-brother of the appellant, is that on 9th May 1969, at about one Pehr after sunrise, he along with his wife Mst. Zainab and another close relation named Allah Bakhsh P. Ws. was present in his own kotha which is separate from the one in which the deceased and the appellant resided together; when they heard an alarm coming from the kotha of the deceased. They rushed towards that side and saw that the appellant was giving hatchet blows to the deceased. The witnesses reprimanded the appellant whereupon he ran away from the spot taking away the hatchet with him. Muhammad, a real brother of the appellant, had also seen the occurrence. Several persons including Mst. Nek Bibi, a real sister of the appellant, reached the spot soon there. after Kamir deceased was in injured condition. He was bandaged and placed on a cot. At that stage, the appellant returned to his house with the hatchet. Khuda Bakhsh took the hatchet (P. l) from him which was subsequently produced before the police. The appellant then rushed to a nearby shop to bring sugar in exchange for ghee which he took from his house to the shopkeeper. Kamir died at about dupehrwela. The matter was reported by Khuda Bakhsh to the police vide report (ERh. P.B) at village Kot Bahram, at about 3-30 p. m. A pose was subsequently, registered at Polio Station, Massan which is at a distance of five miles from the spot, at 5-30 p. m. vide F. I. R. (Exh. P. B/1).

According to medical evidence to deceased had suffered five injuries in all. Three are incised wounds; one on the head and r two on the arms. The remaining two are abrasions; one on the left, and the other on the right Knee. All the injuries were simple. The injury on the head was not simple. Its dimensions are 2 ' x 1 ' x bone deep. No blood was found on the hatchet. It is probably because the appellant had opportunity of washing it.

At the trial, the prosecution led evidence of occular account contained in the statements of Khuda Bakhsh, Mst. Zainab and Allah Bakhsh, and extra judicial confession said to have been made to Sher Muhammad P.W., a School-teacher, by the appellant at the time when he went to bring sugar from the shop. Khuda Bakhsh P. W. gave evidence about motive also, namely, that he himself having separated from his father and no more interested in the small share of land of his father, be had started cultivating lands of others as a tenant. The appellant who was residing with' his father was pestering him for providing him a separate liveli hood including a demand for partition of the property. The wife of Khuda Bakhsh, namely Mst. Zainab added that the wife of the appellant used to goad him for seeking a partition. The witnesses further explained that on the day of occurrence, the appellant again made a demand from the deceased to provide him a separate residence as also a separate share in the and, therefore he killed his father.

The appellant did not accept the prosecution version and pleaded false implication by making the following statement: -

"I was on inimical terms with Khuda Bakhsh P. W. Khuda Bakhsh used to ask for his share of land from my father Kamir deceased. I was enjoying the usufruct of the land of my father and I was jointly living with him. On the day of occurrence I was not at my Chak Kothiwala and had gone to bring my wife Mst. Saban. Khuda Bakhsh got me involved into this case. Presently Khuda Bakhsh is enjoying the usufruct of the property left by my father Kamir deceased and he has married my sister Mst. Nek Bibi and got Rs. 2,000."

In the grounds of appeal, he has stuck to his plea of denial and has accused Khuda Bakhsh and his wife Mst. Zainab together with their relation Allah Bakhsh P. W. of having falsely implicated him. About Sher Muhammad, the witness of extra judical confession, he has stated that he was inimical to him on account of the education of his younger brother. No evidence was produced in defence. The learned trial Judge did not believe the statement of Allah Bakhsh and relying, on the ocular account given by Khuda Bakhsh and Mst. Zainab as supported by the extra judicial confession made to Sher Muhammad, convicted and sentenced the appellant as noted earlier. While doing so, he has however not relied on the motive part of the prosecution case. On the other band, he has observed that Khuda Bakhsh P. W. had motive against the deceased. In the conclusion, he however, was of the view that the lack of motive in this case did not make much difference.

I have read the evidence. I do not agree with the learned trial Judge that the motive does not make any difference in this case. Obviously, the deceased is real father of the appellant. The cause which impelled him to commit the offence is very relevant. The learned Judge himself has, in the concluding part of his judgment, held that the appellant acted on sudden anger arising out of some sudden altercation and thus his act was not premeditated. It is clear from the statements of the eye-witnesses that they were not aware as to what had transpired between the deceased and the appellant .before they reached the spot and saw the appellant giving blows to his father. There is no reason why the statement made by Sher Muhammad P. W., who has also been relied upon by the learned trial Judge, should not be accepted as true. The very first statement made by the appellant, which has been treated as extra-judicial confession and which has been proved by Sher Muhammad P. W, shows that an altercation arose between them on account of the demand of the appellant for providing him with separate livelihood. This altercation developed into exchange of abuses. The deceased advanced towards the appellant "to strike a blow and at that time (he) Allah Bakhsh accused had a hatchet in his hand with which he struck blows to Kamir". Allah Bakhsh fur the added that Kamir was lying unconscious and he had come to get sugar in exchange for the ghee "so that sugar mixed with milk be served to Kamir." Allah Bakhsh accused also stated that he had struck the blow at his father "on provocation." For these reasons this extra judicial confession will have to be accepted in tote. Firstly, there must have been some cause for the appellant to have taken such a drastic act of causing hatchet blows to his own father and the reason disclosed by him in the confession is not unreasonable. Secondly, for the other eye-witnesses, as it appears from the site-plan, it was impossible to have seen as to what happened immediately before the appellant assaulted his father. A kotha intervenes in between the two places. Therefore, from the prosecution side there is nothing to suggest that the appellant did not tell the truth when making confession to Sher Muhammad P. W. And thirdly, a confession was made by the appellant to Sher Muhammad probably within few minutes. Therefore, considerable importance will have to be attached to it as a spontaneous statement. There is no justification for excluding that part of the confession which benefits the appellant. I, there fore, accept it in its entirety.

The appellant did act in grave and sudden provocation but it is not possible to believe that he acted in exercise of right of private defence because he has no injury on his person. Moreover, no weapon was found in the hands of the deceased. If he, at all, advanced towards him to strike him a blow, it must have been with bare hands. The appellant had no right to kill him. On these considerations, the case would have fallen under Part I of section 304, P. P. C. But a careful scrutiny of the medical evidence reveals that the blows given by the appellant to the deceased were not with full force. Moreover, he caused only one injury on the bead of the deceased. The other two are on his arms. The tw injuries on the knees were probably due to the fall on the ground the injury on the head was simple. Even the bone was not cut. It appears from all the circumstances that the appellant can attributed only the knowledge that his act was likely to cause death but he had no intention to cause death or to cause such bodily injury as was likely to cause death. Therefore, his case falls properly within the mischief of Part II of section 304, P. P. C. I partly accept his appeal, set aside the conviction and sentence under section 302, and instead convict hire under section 304, Part II, P. P. C., and sentence him to eight years' R. I.

Order accordingly.

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