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Criminal Appeal No. 290 of 1974 and Confirmation Appeal No. 4 of 1975, decided on 27th July 1976.

----S. 302 read with S. 300, Exception I-Grave and sudden provoca tion-Sentence-Quantum of-Circumstances existing to suggest that accused committed murder under some provocation-Sentence of death altered to imprisonment for life, in circumstances of case:-[Sentence].

Muhammad Hayat Junejo for Appellant.

Manzoor Hussain for the State.

Dates of hearing : 26th and 27th July 1976.

.-The appellant was tried under section 302/34, P. P. C. by the learned 11 Additional Sessions Judge, Sukkur, who convicted and sentenced him to death penalty under section 302, P. P. C. and to one year rigorous imprisonment under section 324, P. P. C. The appellant has filed this appeal challenging the validity of the order of his conviction whereas the learned II Additional Sessions Judge, Sukkur has referred the case for confirmation of death sentence.

2. The facts giving rise to this case are that the appellant killed one Ramoo by means of a hatchet and caused a simple injury to one Deepoo on 7th June 1973, at 10-30 a.m. of which a report was lodged in the nearby Police Station A' Section, Sukkur, at 1l a.m. The incident took place in Barrage Colony, Sukkur. P. W. Abdullah, A. S. I, registered the first information report at the instance of the deceased's brother Amar Singh. On the same day at 6 p.m. the said A. S. 1 arrested the appellant. According to the F. I. R. the complainant Amar Singh and the appellant are sweepers by profession and they live in the same colony. About two year: back the appellant had been ousted from the "bradari" on account of his misconduct and since then he was having a grudge against the deceased. On the day of incident at about 10-30 a.m. the complainant P. Ws. Amar-Singh, Deepoo, Allahditto and Kali were sitting at the bridge of Electric Power Sub-Station when the appellant who was armed with a hatchet reached theca. He abused the deceased and told him that it was on account of him that he had been ousted from the "bradari" and that he would not spare him. Saying so, he gave a hatchet blow on his head due to which the deceased fell down on the ground and went unconscious. The appellant then tried to make his escape good from the vardat but he was followed by the above-said witness. NV hen P. W. Deepoo-reached near him, he gave him a hatchet, bloc which hit him at his left arm and caused an injury. ,

3. After recording the F. I. R. P. W. Abdullah, A. S. I. inspected the injuries on the person of the deceased Ramoo in the presence of mashirs P. Ws. Shsev Charan and Daruoo and prepared a mashirnama of injuries Exh. 1.5 t-to then referred him to Civil Hospital, Sukkur for examination and treatment He also recorded the statement of P. W. Deepoo and sent him to the Civil Hospital for examination and treatment. He also prepared inquest report Exh. 16. Thereafter he repaired to the vardat, which was pointed out to him by the complainant P. W. Amar Singh. It was situated near Electric Power douse in a small bridge in Barrage Colony, Sukkur. The blood-stained earth was found at the vardat and he secured and sealed some of it under mashirnama Exh. 13. He also recorded the statement of P. Ws. Allahditto and Kali. After that he went to search the appellant and arrested him on the same day at 6 p.m. near Pirjo Goth Bus Stand. He secured blood-stained shirt and Shalwar of the appellant and prepared a mashirnama of the same as Exh. 17. The appellant then led P. W. Abdullah, A. S. 1. And mashirs to his; quarte: in a bungalow in Barrage Colony and from beneath a cot he took out a hatchet, which was blood-stained. It was secured under Mashirnama Exh. 18. After completing the investigation P. W. Abdullah, A. S. 1. handed over the papers to S. H. O. who prepared a challan and submitted the same to the Court.

4. Autopsy on the dead body was carried out by Dr. Muhammad Memon who found the following injury on the head of the deceased: -

"An incised wound 8" X 1 " brain deep extending from the left side of bridge of the nose and orbital margin to the left side of the occipital region with fracture of left side of frontal bone, left parietal and left side of occipital bone with prolapse of brain substance."

According to the doctor's opinion the death was caused due to shock, haemorrhage, and brain damage resulting from the hatchet injury.

5. The appellant has not denied having committed the offence but he has stated that one Teeloo was a Choudhary of their "punchayat". The appellant was suspected of having illicit intimacy with his daughter Mst. Lali. Complainant Amar Singh and injured Deepoo were related to said Teeloo and therefore they bore a grudge against the appellant. At their instance he had been ousted from his "buradari" about two years prior to the incident. On the day of incident he was going to cut nim tree in Barrage colony and when he reached the bridge he found deceased Ramoo sitting there alongwith P. Ws. Deepoo and others. Deceased Ramoo and P. W. Deepoo abused him, his mother and sister and said that he had not yet amended his habits although he had lost his job on account of being ousted from the "baradari". 'Thereafter both of them spitted on his face, on account of which he lost his temper and committed murder of deceased Ramoo by causing him hatchet injury under grave and sudden provocation.

6. The prosecution has furnished ocular testimony of P. Ws. Deepoo and Amar Singh who had witnessed the incident from a close distance. P. W. Allahditto has also corroborated the statements of P. Ws. Deepoo and Amar Singh. The appellant has also not denied having killed the deceased Ramoo and caused injuries to P. W. Deepoo. The fact that he had been ousted from his "baradari" two years prior to the incident has also been stated by the complainant and other witnesses and admitted by the appellant. It is therefore evident that he had some grudge against the deceased and injured P. W. Deepoo whom he believed to be responsible for getting him ousted from the "baradari". But the fact that his ousting from the "baradari" could cause him grave and sudden provocation on the fateful day is not believable because on the day of the incident his ouster from the "baradari" was already two years' old matter. The point for determination therefore is as to what particular thing motivated the appellant to all of a sudden kill the deceased and injure P. W. Deepoo. Naturally he could not do so unless he had received provocation from some one and it could possibly be from the deceased and P. W. Deepoo. In this connection his statement cannot be kept out of consideration. He has stated in his statement that on the day of incident deceased Ramoo and injured P. W. Deepoo had abused and also spitted on him, which caused him grave and sudden provocation. ' This suggestion has been put to the witnesses also and so the constant stand of the appellant has been that the behaviour of gave him a cause for losing his temper.

Both the learned counsel for the appellant as well as for the State have agreed on the point that even if the statement of the appellant is believed to be correct in entirety it cannot be inferred that any such circumstance existed which could cause him sudden and grave provocation. However, from the statement of the appellant who has candidly admitted having killed the deceased the possibility of provocation cannot be ruled out. The actual position was that he had been jobless for two years and hart also been ousted from the "baradari". In these circumstances, even if the story narrated by the appellant in his statement recorded under section 342, Cr. P. C. is kept aside from consideration, the element of provocation cannot be ruled out from consideration. In these circumstances the main ground urged by the learned counsel for the appellant is that the quantum of punishment may be considered and the punishment be minimized. He has conceded that it is a case in which he would be contented if the death penalty is commuted and sentence for imprisonment for life is imposed. The learned counsel for the State also does not raise any objection to the commutation of the death sentence, We also realise that since such circumstances existed which fully suggest that the appellant committed murder under some provocation there fore he is entitled to lenient punishment.

7 For the foregoing reasons we dismiss the appeal but commute the death sentence and impose a sentence of imprisonment for life. The sentence passed under section 324, P. P. C. is also maintained but the same shall run concurrently with the sentence of imprisonment for life. The reference for the confirmation of death penalty is not accepted.

Order accordingly.

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