1. ANWARUL HAQ, J.-The appellant, Haider Zaman, was convicted under section 302 of the Pakistan Penal Code by the learned Sessions Judge, Hazara at Abbottabad, and sentenced to death, for the murder of his paternal uncle, Sher Zaman. His appeal has been dismissed by a Division Bench of the High Court at Peshawar and the death sentence has been confirmed.
2. It was alleged that the appellant gave a hatchet blow on the head of the deceased when the latter was saying his morning prayers in the premises of Gandi Wali Mosque in village Darra. On receiving information of the incident, Muhammad Akram (P. W. 5), son of the deceased, rushed to the police station and made a preliminary report at 7-30 a.m., but as this report did not give any details of the incident, the Police Officer proceeded to the spot. On the way, he came across the deceased who was being carried on a cot to the Rural Health Centre. There, in the presence of Dr. Muhammad Salim Khattak the dying statement of the deceased was recorded. This was at 9-30 p.m. On the 15th of January 1971. The deceased expired at 10-30 p.m. Next day.
3. According to the dying statement, the motive for the assault was the suspicion of the appellant that Muhammad Akram, the son of the deceased, had killed a chicken belonging to the appellant's sister and this incident had led to a quarrel between the two, only a few days before this occurrence. However, at the trial another motive emerged during the cross-examination of Muhammad Akram when he admitted that a few days before this murder he had assaulted the father of the appellant with a stick as a consequence of which he had to remain in hospital for 15 days. It appears that the assault on the deceased was in retaliation for the assault on the appellant's father.
4. According to the post-mortem examination, the deceased was found to have sustained two injuries on his person:-
(1) An incised wound about 2-- x -- ' bone deep, over, the left side of the Ecalp, three inches above the left auricle;
(2) A contused wound about --' in diameter over the left side of the scalp, about f behind the middle of the left auricle.
5. 'In the opinion of the doctor injury No. 2, caused by a blunt Weapon, was sufficient to cause death in the ordinary course of nature. It was found, on internal examination, that there was sub-dural clot about 1" in diameter over the right temporal zone and blood was found in the sub-daral space covering the area from the clot backwards via the occipital area up to the left temporal zone.
6. At the instance of the appellant a hatchet was recovered from his house, but it was not found to be blood-stained. The appellant admitted this recovery but denied all the other allega--tions, and ascribed the case to enmity with his relations.
7. The conviction recorded against the appellant is based on the dying statement of his deceased uncle as corroborated by the eye-witness account given by Akhtar Zaman (P. W. 8) and Nawab (P.
8. W. 9) who were present in the mosque at the relevant time for saying their prayers.
9. Leave to appeal was granted in this case to consider the nature of the offence committed by the appellant on the basis of the dying declaration read in the light of the medical evidence. It may be stated that in the dying statement the deceased had attributed only one blow to the appellant, whereas medical evidence showed the presence of two injuries, one of an incised nature and the other a contused wound.
10. However, this apparent contradiction seems to have been resolved by the opinion expressed by the doctor to the effect that it was possibly that both the injuries might have been caused by a single blow.
11. It is submitted by the learned counsel for the appellant that although he is not challenging the conviction recorded by the trial Court and upheld by the High Court, as only one blow was Inflicted by the appellant and this blow did not result in causing any fracture of the skull, the offence would appear to fall under section 325 of the Pakistan Penal Code or at best under Part II of section 304 thereof. In support of his submission learned counsel has referred us to Masoom Beg v.
12. Muhammad Munir and another (1971 SCMR 476).
13. We find that the precedent cited by the learned counsel has no application to the instant case, as the point involved in that case was regarding the application of Exception 4 to section 300 of the Pakistan Penal Code, and no guidance is available from that judgment on the point in issue before us. However, it is clear that the injury having been caused on a vital part of the body by a deadly weapon, and having been found to be sufficient in the ordinary course of nature to cause death, the offence committed by the appellant would fall within the definition of murder even though he may not be credited with the intention of causing death. It is, at any rate, a case where the appellant must be burdened with the intention of causing such bodily injury as was likely to cause death. The appellant has, therefore, been rightly convicted for murder under section 302 of the Pakistan Penal Code.
14. However, on the question of sentence we are of the view that the High Court has erred in not giving effect to the extenuating circumstance present in the case, namely, that the act of the appellant was in retaliation of the assault made by witness Akram on the appellant's father shortly' before the occurrence, us a result of which the appellant's father had to be hospitalised for several days.
15. Being a young man he must have felt provoked that his cousin had assaulted his father, and therefore, he took revenge by assaulting Muhammad Akrams father. In these circumstances, the extreme penalty does not appear to be appropriate. Accordingly, we would set aside the sentence of death and substitute it by imprisonment for life.