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Criminal Appeal No. 172 of 1976, decided on 15th June, 1980.

----S. 410 read with Penal Code (XLV of 1860), Ss. 302 & 304, Part I -Appeal (criminal)----Murder-Evidence, appreciation of-Accused coming to shop of witness empty-handed, picking up a hammer from shop and when coming face to face with deceased, paramour cum-husband of his mother losing control and giving a blow with hammer on deceased's head-Conviction under S. 302, P. P. C. altered to one under S. 304, Part I in circumstances.

Appellant through Jail.

Saleem Akhtar Khan for the State.

Date of hearing : 15th June, 1980.

Wahid Bakhsh son of Imam Bakhsh, Cultivator, resident of Mauza

Mutafariq Chahan, was hauled up for the murder of Bakhshan. He was tried by the Sessions Judge, Dera Ghazi Khan, who by his judgment dated 18th December, 1975, convicted him under section 302, P. P. C. and sentenced him to life imprisonment and fine of Rs. 1,000 or in default to undergo R. I. for one year. The convict has sent this appeal through Jail.

2. Bakhshan was alleged to have been murdered on 29th November 1974 at 11-00 a.m. in the shop of Amir Bakhsh (P. W. 7) situated in Choti Town. Allah Ditta (P. W. 6) lodged the report Exh. P J at Police Station Choti at 12-00 noon the same day which was recorded by Ghulam Sarwar, Head Constable (P. W. 12).

The motive for the alleged murder was that the deceased had abducted the mother of the appellant and had married her.

3. Allah Ditta stated that he went to the shop of Amir Bakhsh P. W. to bring his bucket, which he had given for repair. Bakhshan deceased was already sitting at the shop of Amir Bakhsh. Bakhshan enquired from Allah Ditta about Manzoor Ahmad from whom he was to realize some debt. Allah Ditta told Bakhshan that Manzoor Ahmed had gone to Pillage Talpur and would come back in the evening. The appellant also turned up and started abusing the deceased. All of a sudden the appellant picked up a hammer from the shop of Amir Bakhsh, gave a blow on the head of the deceased and ran away. Amir Bakhsh (P. W. 7), Afzal Khan (P. W. 8) and Haji Khan (given-up witness) saw the occurrence.

The prosecution case rests on the evidence of motive, ocular account, dying declaration, recovery of blood-stained hammer P. I and the medical evidence.

5. The appellant denied the murder charge, but admitted to have hit the deceased as a result of which he died. He declined to produce any evidence in defence and made the following statement:-

"On the day of occurrence when I happened to pass from near the shop of Amir Bakhsh P. W. I saw Bakhshan deceased sitting on the eastern side of that shop. He abused me and made allegation against me that I had sold my wife who was his daughter and had obtained a decree for dissolution of marriage of my sister who was the wife of Pir Bakhsh, the son of the deceased and also said tauntingly to me that now I should sell my mother. Upon this I lost my self-control and under grave and sudden provocation I injured the deceased with a handle of kassi which I took up from the spot and not with a hammer P. 1."

6. Pir Bakhsh (P. W. 3) son of the deceased, deposed about the motive. The ocular version was given by Allah Ditta, Amir Bakhsh and Afzal Khan P. Ws.

7. Dr. Ghulam Farid examined an unknown person on 29^thNovember, 1974 and found a lacerated wound 2" x 1", depressed one the right side of the head.

The injured died on 12th December, 1974 and the post-mortem was performed by Dr. Ghani Ahsan. He found the same injury as was noticed by Dr. Ghulam Farid.

8. Pir Bakhsh admitted that his deceased father had abducted Mst. Zainab, mother of the appellant, prior to the occurrence and there after he married her.

Allah Ditta stuck to the same story before the trial Court which lie had given in the first information report and said that when Wahid Bakhsh came to the shop he told the deceased that he had asked him repeatedly not to come before him. He then picked up a hammer and gave a blow on the head of the deceased.

Amir Bakhsh and Afzal Khan also deposed to the same effect and said that the appellant came to the shop, picked up a hammer and then gave blow on the head of the deceased, but Amir Bakhsh did not say that when the deceased was hit, the appellant said anything.

9. There are two versions of the incident, one given by the prosecu tion and the other by the appellant. If the version of the appellant is to be believed then his conviction under section 302, P. P. C. is not maintainable and shall have to be altered. The very motive as deposed by Pir Bakhsh P. W. shows that the appellant was humiliated.

According to the evidence of the eye-witnesses when the appellant came to the shop of Amir Bakhsh, he was empty-handed. He picked up the hammer from the shop and when he came face to face with the paramour cum-husband of her mother he lost control and hit him.

Even if the statement of the appellant is to be ignored, this evidence itself is sufficient to alter the conviction of the appellant from section 302, P. P. C. to section 304 (I), P. P. C. and I order accordingly.

10. The appellant teas arrested on 6th December, 1974 and since then he is behind the bars. The sentence already undergone would meet the ends of justice and I order accordingly. The sentence of fine is remitted. The appellant shall be set at, liberty forthwith if not required in any other case.

Order accordingly,

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