The appellant Buta was tried, along with his brother Sarwar and a relation by the name of Anwar, by the learned Additional Sessions Judge at Kasur for causing the death of his co-villager Wali Muhammad. Sarwar and Anwar were acquitted. Buta was convicted under Part 1 of section 304 of the Pakistan Penal Code and sentenced to undergo transportation for life.
2. While finding the appellant guilty, the learned Additional Sessions Judge fully accepted the defence version to the effect that the deceased Wali Muhammad had come to the Kotha of the acquitted accused Sarwar during the night of the 1st and 2nd of February 1968 for the-purpose of pursuing an illicit intrigue with Sarwar's wife Mst. Halima, and that be was apprehended flagrantedelicto by the appellant Buta in the absence of his brother Sarwar who was away irrigating his lands. The learned trial Judge recorded the finding that in these circumstances Buta acted under grave and sudden provocation while inflicting injuries on Wali Muhammad.
3. The learned counsel appearing for the appellant does not contest the findings of the fact recorded by the learned trial Judge, but submits that on the proved facts the conviction could only have been recorded under Part II of section 304 of the Pakistan Penal Code, and accordingly the sentence should also have been much less. In support of his legal contention Mr. Nagi has placed reliance on a judgment of the Full Bench reported as Qadir Bakhsh v. The Crown (PLD 1953 Lah.
588).
4. In view of the dictum of the Full Bench, the contention has to be accepted. After examining the ratio decidendi of the decisions of the Federal Court in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93), Muhammad Aslam v. The State (PLD 1953 FC 115) and Ali and another v. The Crown (P L D1952 FC 71their Lordships expressed their conclusion as under: "The rule to be deduced is that the intention to kill being a ingredient of the offence of murder, any doubt as to the existence of that ingredient makes a conviction for murder impossible in law and that the existence of any such ingredient is negative when the killing is in exercise of the right of self-defence o A person or under grave and sudden provocation, we therefore agree that a person cannot be convicted under section 304 (I) of the P. P. C. If he kills another under grave and sudden provocation."
Respectfully following the dictum of the Full Bench cited above I would alter the conviction of the appellant from Part I of section 304, P. P. C. To Part II of the same section.
5. As regards the sentence, there are strong mitigating circumstances, namely, that on a previous occasion the deceased had been admonished through his uncle Muhammad Shafi (P.W. 7) to give up his connection with Sarwar's wife Mst. Halima, but in spite of the undertaking then given by Muhammad Shafi on behalf of his deceased nephew, the latter was caught red-handed in Sarwar's Kotha in a compromising position with Mst. Halima. There are several decided cases in which it has been held that in such circumstances the maximum penalty is not called for. I find that the appellant has been in detention since 3rd February 1968, i. e. For more than four and a half years. I consider that the sentence already undergone would meet the ends of justice.
6. The appeal is therefore accepted to the extent that: the conviction is altered from section 304 (1) to section 304 (II), P.P.C. And the sentence to that already undergone. The appellant shall be set at liberty forthwith, provided always that he is not required to be detained in any other connection.