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Criminal Appeal No. 2 of 1985, decided on 15th September, 1985.

‑‑‑S. 304, Part I‑‑Culpable homicide not amounting to murder‑ Sentence‑‑Law, held, although provide sentence of life imprisonment for offence of culpable homicide not amounting to murder yet sentence awarded must commensurate with nature of offence and as facts would justify and at same time sentence should not be so low as to encourage commission of homicide.

‑‑‑S. 304, Part I‑‑Grave and sudden provocation‑‑Sentence‑‑No hard and fast rule is laid down in matter of sentence in case of grave and sudden provocation‑‑Caste, tribe, background of incident, area, latent cause of killing, cause giving grave and sudden provocation, weapon used, relationship of accused with woman, general circumstances appearing at time of occurrence including whether occurrence was day or night time, held, inter alia, were some relevant factors to be considered in awarding sentence.

‑‑‑S. 304, Part I‑‑Sentence of imprisonment for life‑‑Accused belonging to Baluch tribe living in far‑fetched rustic area of Baluchistan, finding his maternal‑aunt and a stranger in flagrante delicto, receiving highest degree of provocation, losing self‑control and killing both‑‑No enmity existing between parties‑‑Sentence of life imprisonment awarded to accused by Trial Court, being too severe, indulgence of law was shown in such cases in condescension to frailty of human nature‑‑Sentence of imprisonment for life altered to seven. years' rigorous imprisonment in circumstances.

Muhammad Aslam Chishty for Appellant.

Muhammad Nawaz Ahmed for the State.

Date of hearing: 9th September, 1985.

This appeal under section 410 of the Criminal Procedure Code is directed against the Judgment, dated 17th November, 1978 whereby the learned Sessions Judge, Sibi Division, Sibi in Sessions Case No. 64 of 1979, convicted the appellant for offence under section 304 (I) of Pakistan Penal Code and sentenced him to suffer rigorous imprisonment for life and a fine of Rs.5,000 and in default of payment of fine to undergo R.I. for 6 months more.

2. The brief facts giving rise to this appeal are that on the night between 6th and 7th May, 1974, the appellant found his maternal‑aunt Mst. Raheema and one Chakar in an objectionable position sleeping on same cot in the house of his maternal‑uncle Afghan in village Shah Muhammad Brohi of Tehsil Usta Muhammad. On grave provocation he committed their murders by giving them hatchet blows. The next morning the appellant alongwith the weapon of the crime the blood‑stained hatchet went to the police station Bhag‑tail and informed about the incident to S.H.O. P.W. Raja Khadam Hussain the then S.H..O. Bhag‑tail who recorded formal F.I.R., inspected the site, prepared Mashirnama of the Jai‑Wardaat, secured blood‑stained earth, held inquest on the dead bodies, examined witnesses and sent the dead bodies for post‑mortem examination and report to the Medical Officer Civil Hospital, Usta Muhammad found injuries on their persons as follows;‑

(1) Incised wound 5" x 2" x 2 " on the upper part of medical of the occipital region cutting the brain substance.

(2) Incised wound 6 " x 2" x 3" transversely on the right side of lower part of the head cutting the middle of right ear. Head of mendible, temporal and occipital bone, brain membrane and brain substances.

(3) Incised wound 5" x. 1" skin deep on the "right side of the upper part of the back near mid line at the level of shoulder.

(4) Incised wound 3" x 1" x 1" on the left side of the neck.

(1) Incised wound 5" x " x 3" (above downwards) on the left side of the head and side of face cutting the left ear, mendible, temporal and brain substance.

(2) I/W 4" x 2" on the right side of back of neck cutting the 4^th cervical vertebra and the spinal cord.

On 8th May, 1974, the appellant made judicial confession under section 164, Cr.P.C. before the Extra Assistant Commissioner and 1st Class Magistrate, Jhatpat. After usual investigation the police challaned him for offence under section 302, P.P.C. The case came up for trial before the learned Sessions Judge, Sibi Division, Sibi who framed charge for the offence under section 302, P.P.C. to which the appellant did not plead guilty and claimed for trial.

3. To bring home the charge against the appellant the prosecution examined witnesses P.W. 1 Dr. Faqir Muhammad, P.W. 2 Sardar Muhammad Jaffar, the Magistrate 1st Class, P.W. 3 Muhammad Aslam Head Constable, P.W. 4 Kareem Bakhsh, P.W. 5 Hap Taj Muhammad, P.W. 6 Mst. Lutfan. P.W. 7. Khuda Bux, P.W. 8 Haji Dinar Khan and P.W. 9 Raja Khadam Hussain.

4. In his 342, Cr.P.C. statement recorded by the Court, the appellant denied to have committed the offence and even retracted from the confession made by him before the Magistrate Ist Class. No witness was examined by him in defence. The learned Sessions Judge discarded the evidence of recovery of hatchet but relied upon only confession of the appellant and convicted him for offence under section 304, Part I, P.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000 or in default of payment of it to suffer R.I. for 6 months more. The fine if recovered to be paid to the heirs of the deceased as compensation in equal shares and also extended benefit of, section 382 (b), Cr.P.C.

5. Being aggrieved and dissatisfied with the conviction and sentence awarded by the learned Sessions Judge, Sibi, the appellant has filed this appeal before this Court.

6. Mr. Muhammad Aslam Chishti, Advocate appeared for the appellant whereas Mr. Muhammad Nawaz Ahmad, Advocate represented the State on behalf of the Advocate‑General.

7. Though in memo. of appeal the .conviction and sentence of the appellant was challenged on various grounds but during the course of the arguments before us the learned counsel for the appellant did not press the appeal on the facts and contended that in the attending circumstances of the case the sentence awarded tar the learned Sessions Judge was not only severe but harsh. The learned counsel for the appellant emphasized the appellant had faced ordeal of the trial since 1974 and undergone mental and financial agony on account of protracted proceedings on no fault of his client, who for these reasons deserved leniency in reduction of sentence.

8. On the other hand the learned counsel for the State has stressed that the appellant did not stick to his earlier stand, retracted from his confession and contested the proceedings as such was rightly convicted and sentenced by the learned Sessions Judge.

9. It may be observed that the appellant had found the both deceased persons in compromising position on a cot in house of deceased Mst. Raheema and on account of sudden and grave provocation committed their murders there and then with a hatchet which already he had in his hands. Thereafter he himself appeared before the S.H.O., Police Station on the very next early morning, informed about the incident, produced the blood‑stained hatchet, and gave judicial confession before the Magistrate First Class on 8‑5‑1974. The prosecution successfully proved these facts before the trial Court. The evidence is sufficient to prove offence under section 304(1), P.P.C

10. The learned counsel for the appellant has rightly not challenged the conviction of the appellant on merits of the case and urged for reduction of his sentence.

11. Under section 304(1), P.P.C. punishment awarded for culpable homicide not amounting to murder (i) if done with intention of causing death is imprisonment for life and (ii) if caused such bodily injuries as is likely to cause death is for term which may extend to 10 years. Though apparently there appears a narrow distinction between the above‑said provision of the same subsection but there is a vast difference in sentences provided, therefore. The difference between intention to cause death and causing of such bodily injury as is likely to cause death is only a matter of degree in the commission of the offence, albeit the result in both cases is the same. The former is a degree higher in the scale of the criminality than the later one' and the law has made clear distinction in their sentences. The learned Sessions Judge evidently' though not mentioned found the appellant guilty in the former part of the subsection and, therefore, awarded him the maximum sentence of imprisonment for life which is the alternative sentence under section 302, P.P.C.

12. No doubt the law provides that sentence for the offence of, culpable homicide not amounting to murder yet since the act is done one may say almost natural in the circumstances one must award sentence as law as commensurate with the nature of the offence and as the facts would justify, and at the same time the sentence should not be so low as to encourage the commission of homicide. No hard and fast rule is laid down in the matter of sentence in the case of grave and sudden provocation. However the caste, the tribe, the background of the incident, the area, the latent cause of killing, the cause giving grave and sudden provocation, the weapon used, the relationship of the accused with the woman, the general circumstances appearing at the time of occurrence including whether it is a day or night time occurrence inter alia are some relevant factors to be considered in awarding sentence.

13. The case in hand, the appellant belongs to Baluch tribe, lives in far‑fetched rustic area of Baluchistan‑there existed no enmity between the parties, at the night time he found his aunt Mst. Raheema and stranger Chakar in flagrante delicto. Undoubtedly he must had received the highest degree of provocation and lost, self‑control and indulgence of the law shown in such cases in condescension to the frailty of human nature which facts' have not been considered by the learned Sessions Judge.

14. In view of the facts and circumstances discussed herein above the sentence of life imprisonment imposed upon the appellant by the p learned Sessions Judge on face of it appears to be too severe which we are not inclined to‑maintain.

15. We, therefore, alter the sentence from imprisonment for life to R.I. for seven years and maintain the fine of Rs.5,000. In default of payment of the fine the appellant shall suffer R.I. for 6 months more. If the fine is realized it nay be distributed in equal shares to the E legal heirs of deceased Mst. Raheema and Chakar. The appellant: shall also be entitled to the benefit of section 382‑B of the Criminal Procedure Code. With this modification the appeal is disposed of.

This constitutes the reasoning of our short order announced in Court on 8‑9‑1985.

M.Y.H. Appeal partly accepted.

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