SHAMEEM HUSSAIN KADRI, J---Muhammad Hussain appellant alongwith Ata Muhammad was tried by the Additional Sessions Judge, Dora Ghazi Khan, for the murder of one Lal Hussain. Ata Muhammad was acquitted while the appellant was convicted under section 302, P. P. C. And sentenced to death. His appeal and reference for confirmation of death are before us which are disposed of by this judgment.
2. The occurrence is alleged to have taken place at 1 p.m. At Chah Kaurewala in village Bhag, within the precincts of Rajanpur Police Station at a distance of 9 miles from the spot. First statement was made by Juma (P. W. 5) brother of the deceased to Ghulam Mustafa H. C. (P. W. 4) at Civil Hospital, Dera Ghazi Khan. The formal F. I. R. Was recorded by Abdul Hakeem A. S. I. (P. W. 2) at Police Station Rajanpur at 2 p.m. On 11th March 1968 which is Exh. P. A./1.
3. The eye-witnesses of the occurrence are Juma (P. W. 5) brother of the deceased, Pit Bakhsh (P.
W. 6), Allah Jiwaya (P. W. 7) and Abdur Rahman (P. W. 8). Few other persons, namely, Diwaya, Pir Bakhsh, Bura, Husaina, Lalu and Jindu have been mentioned as eye-witnesses of the occurrence in the F. I. R. But they have not been produced.
4. Hatchet (Exh. P. 5) was recovered from the bhoosa at the instance of Muhammad Hussain vide memo. Exh. P. E. This was stained with blood. The other hatchet (Exh. P. b) was recovered from Ata Muhammad vide memo. (Exh. P. F). This was also blood-stained, but the reports of the Chemical Examiner and the Serologist show that the former hatchet only was stained with human blood. So far as Exh. P. 6 is concerned it was reported that the marks had disintegrated.
5. Dr. Muhammad A.I (P. W. 12), Medical Officer, D. H. Q., Hospital, Dora Ghazi Khan performed the post-mortem examination on the dead body of Lal Hussain on 11March 1968 at 12 noon. He foundth two injuries on the person of the deceased both sharp-edged, one on the face and the other on the neck which was simple. The latter injury is attributed to Muhammad Hussain. The former injury which proved to be fatal is attributed to Ata Muhammad, the person who was acquitted.
6. The prosecution case, as disclosed by Juma, is that on the day of Eid-ul-Azha he went alongwith his brother Lal Hussain to Chah Kaurewala to receive sacrificial meat. Some persons were present there. Abdur Rehman came there and told his brother that he was required by Allah Diwaya, Jindu and Allah Jiwaya at a place 20 karam' away from there. The deceased accompanied them to the place where those persons were sitting. His brother wanted to purchase a cow from Allah Diwaya, Jindu and Allah Jiwaya, but they had gone back from their promise. At that place Muhammad Hussain and Ata Muhammad came armed with hatchets. The applellant is said to have given the first hatchet blow to the deceased on his neck while the other accused inflicted the second blow which hit him on his face. The deceased was then sitting on the ground and on receiving the blow he fell down. He was carried on a cot to Rajanpur Civil Hospital. Since the doctor was not available there he was taken in a truck to Dera Ghazi Khan. He expired on the way.
7. The motive for the crime as given in the F. I. R. Is that the deceased was in joint cultivation with Allah Bakhsh at Chah Sawanawala and was living with him. Allah Bakhsh is the father of Mst. Hajul.
The deceased developed illicit relations with her and was ultimately turned out without any compensation at the instance of both the accused (cousins of Mst. Hajul) and Ghulam Rasool her husband.
8. The appellant did not disclose any defence before the Committing Magistrate, but before the Additional Sessions Judge he stated, in answer to a question why this case against him, to the following effect:-- "I had come to the spot after offering the Eid-ul-Azha prayer at the shrine of Haider Shah. I was sitting within the limits of Chah Kaurewala alongwith Allah Diwaya, Allah Jiwaya and Jindu. They sent Abdul Rehman to bring Lal Hussain deceased from nearby. The deceased came to us and was told by Allah Diwaya that he would not be sold the cow because his bratheri did not approve that.
At this Lal Hussain deceased blurred one that he (Allah Diwaya) was afraid of the bratheri while he (the deceased) would fuck the bratheri. The deceased added that he (Allah Diwaya) should ask me (Muhammad Hussain accused) about Mst. Hajul. I was flared up on this account and under grave and sudden provocation I picked up a hatchet from nearby and inflicted two injuries with it to the deceased to chastise him. I then myself went to, the Police Station Rajanpur to report the matter. The police awaited the Medical report and then challaned me falsely."
9. It is unnecessary to discuss the delay of 25 hours in lodging the F. I. R. Which the prosecution has tried to explain by the break down of the truck and other discrepancies in the statements of the eye-witnesses, for, the appellant has admitted to have caused injuries to the deceased. From the statement made by Muhammad Hussain before the Additional Session Judge and the defence plea put to the witnesses out of whom Abdur Rehman having admitted it, it is quite evident that this was on account of grave anti sudden provocation that the appellant caused injuries to the deceased. Evidence of Abdur Rehman for this reason cannot be thrown out as done by the learned Additional Sessions Judge, for he has not been declared hostile. He has merely accepted the version of the accused which looks to be true. Normally an abuse by a person would not bring his case within the purview of exception I to section 300, P. P. C. Relating to grave and sudden provocation, but the background of this case and the express words used leave us in no doubt that the appellant had lost his self-control on account of grave and sudden provocation. Bahadur v.
Emperor (AIR 1935 Pesh.78) is referred. We would, therefore; alter his conviction from section 302 to 3:14, Part I P. P. C. And sentence him to five years' R.I. The appeal is partly accepted and the reference is rejected.