1. MUHAMMAD AFZAL ZULLAH, J.--These two petitions for leave to appeal arise out of a case which was tried under section 302, P. P. C. But the conviction now challenged is one under section 301-1, P.
2. P. C., by application of Exception I to section 300, P. P. C.
3. Criminal Petition No. 122 is barred by three days. We condone the delay. The convict has sought leave therein, for reduction of sentence of R. I. Of 10 years. While in the other petition the complainant has sought conviction of the accused under section 302, P. P. C.
4. The case as summarised in the impugned judgment is that :- "Muhammad Younus and his brother Muhammad Ayub suspected Sher Khan deceased of carrying on with Mst. Mukhtar Begum, wife of Muhammad Younus appellant. It was alleged that the two in furtherance of their common intention attacked the deceased at 4.00 P.M. On 28-5-1976 and caused his death by repeated blows of chhuri caused by both the assailants. The matter was reported to the police through F. I. R. Exh. P. H. By Mehbub Khan P. W. 10, who witnessed the occurrence. It was recorded at 7.00 p.m. At Police Station, Attock. As a result of the investigation both Younus and Ayub were sent up for trial under section 302/34, P. P. C. Muhammad Yunus appellant was also challenged under the Arms Ordinance."
5. At the trial, while Ayub pleaded alibi, Younus admitted the occurrence but gave a different version.
6. According to him he was suddenly provoked by the conduct of Sher Khan who had tried to molest Mst. Musafir Khatoon, his sister after she had gone about hundred yards away after serving the mid-day meals to Younus appellant at his well where he was repairing the drawing chain of the well and was tying earthen pots to the chain. He was attracted by the alarm raised by his sister and he rushed there carrying the knife with which he was cutting the strings of the earthen pots and lost self --control and caused repeated injuries to the deceased resulting in his death." The trial Court found that Mehbub Khan P. W. 10 and Ghulam Sarwar P. W. 11 had not seen the occurrence, It also rejected the evidence of motive. It also rejected the prosecution story regarding the time of the occurrence. According to the trial Court, the occurrence took place at 12 noon, as claimed by Younus appellant and not at 4.00 p.m. As deposed by the prosecution witnesses. The Court, however, convicted the appellant of an offence under section 302, P. P. C. Treating it to be confession without discussing his plea."
7. The High Court, however, disagreeing with the view of the trial Court on question of the guilt of Muhammad Younus observed that "it is obvious that the two eye-witnesses produced by the prosecution could not stand the test of scrutiny. The Court was then left with the version given by the appellant himself. It is well-settled principle of law that in such a case the statement of an accused person can only be accepted as a whole and not in parts. This the trial Court has neglected to do. There was no reason to reject the statement as, at least to the extent (of time) it has been accepted by the trial Court. On the other hand, if the statement is to be accepted as a whole, it is clearly a case of grave and sudden provocation and I have no hesitation in holding accordingly." He was thus sentenced under section 304 (I) to 10 years' R. I. And a fine of Rs. 1,000 which was awarded as compensation. .
8. Learned counsel for the complainant has contended; that the eye-witnesses have been disbelieved without cogent reasons; that if the statement of the accused had to be relied upon, in any case, it should have been read along-with the evidence regarding the recovery of weapon of offence; that it is not necessary to accept the entire 342, Cr. P. C. Statement of the accused in case- the ocular evidence produced by the prosecution is kept out of consideration; that, even if the statement of the accused Muhammad Yunus was to be accepted in its entirety, the case could not be covered by Exception (1) to section 300, P. P. C. So as to give him the benefit of conviction under section 304-I, P. P. C.
9. The reasons in disbelieving the eye-witnesses in this case which are discoverable from the two judgments of the learned Courts below are based on correct analysis. No principle regarding appreciation of evidence having been ignored, we do not find any justification to re-open the question of the credibility of those witnesses. The recovery of weapon of offence by itself in the circumstances of this case is of no avail to the prosecution because Muhammad Yunus accused has not denied having used a sharp-edged weapon. The argument in this behalf also is of no avail to the complainant.
10. The statement made by Muhammad Yunus accused under section 342, Cr. P. C. Shows that he admitted the occurrence but in a manner different from what was stated by the eye-witnesses.
11. There is nothing in that state--ment to show that the same or any part thereof was, in the circumstance of the case, an impossibility so as to be excluded when considering the guilt or otherwise of the said accused. Nor there is anything in the evidence to directly contradict any part thereof. When read as a whole, it appear that Muhammad Yunus acted under grave and sudden provocation. Hi act, therefore, fell under Exception I to section 300, P. P. C. That being so, he was rightly convicted under section 304-1, P. P. C. Therefore, criminal petition No. 117-R/82 filed from the complainant side is dismissed.
12. Learned counsel for convict Muhammad Yunus has argued that the Lahore High Court in some cases awarded the sentence of three years' R. I. And in one or two cases awarded exceptionally low sentence in the cases covered by Exception I to section 300, P. P. C. Therefore, according to him, the sentence awarded to Muhammad Yunus merited reduction. After hearing him on this point, we do not agree that in a case like the present one sentence of 10 years' R. I. Should not have been awarded. The petition filed by Muhammad Yunus is also without any merit and the same is, therefore, dismissed.