' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances:
1. Relevant facts are that Munir Ahmad appellant suspected illicit relations between his wife Mst.
Aisho and Allah Bachaya deceased son of Azeem Bakhsh complainant. Five or six months prior to the occurrence, the appellant had got registered a case against Allah Bachaya for outraging the modesty of his wife and Allah Bachaya was arrested in that case. Allah Bachaya was earning his livelihood in Sindh. He came back three or four days earlier to the incident which happened on 26- 5-1977 at about 3-00 p.m. A feast had been arranged in the honour of Haji Imam Bakhsh, who has returned from Haj. The complainant and his two sons Allah Bachaya (deceased) and Abdul Sattar had also been invited at the Dera. After taking meals most of the people had left. The complainant went to urinate outside the Dera and heard an alarm of his son Allah Bachaya. He, his son Abdul Sattar, Rahim Bakhsh, Bashir Ahmad and others rushed to the spot and saw the appellant giving hatchet blows to Allah Bachaya. They could not save Allah Bachaya as the apellant had threatened them. After injuring Allah Bachaya, the appellant ran away with his weapon and Allah Bachaya succumbed to the injuries.
' A case was registered under section 302, P.P.C. At Police Station Pacca at 7-00 p.m. On the same day. The F.I.R. Was recorded by Muhammad Afzal H.C. The appellant was arrested next day and he got recovered bloodstained hatchet P.4 which was taken into possession vide memo Exh.PF.
2. After necessary investigation the appellant was put to trial under section 302, P.P.C. .Before the learned Sessions Judge, Rahim Yar Khan. Azeem Bakhsh complainant P.W.8, Rahim Bakhsh P.W.6 and Bashir Ahmad P.W.7. Supported the prosecution case. The appellant made a detailed statement about outraging the modesty of his wife previously by the deceased and also that on the day of occurrence when he came out after having meal at the Dera of Haji Imam Bakhsh, the deceased called him pimp and that he was shame-faced as he (the deceased) was still carrying on with the (appellant's) wife. The learned trial Court found the appellant guilty and sentenced him to imprisonment for life and a fine of Rs,5,000. In default of the payment of fine, he was directed to suffer three years' R.I. He was also directed to pay a stun of Rs,5,000 by way of compensation under section 544-A, Cr.P.C. Or to suffer six months' R.I. In default thereof. The appellant filed an appeal before the Lahore High Court, Bahawalpur Bench, at Bahawalpur and reiterated the plea of grave and sudden provocation. The learned Judge hearing the appeal observed that "the plea was an afterthought" and dismissed the appeal but granted benefit of section 382-B, Cr.P.C. To the appellant". This is vide Order dated 5-2-1989.
3. At the leave stage it was urged on behalf of the appellant that the "plea of grave and sudden provocation was not an afterthought. As a matter of fact it found full support from the prosectuion case because in the First Information Report the motive alleged was that the petitioner suspected his wife to be carrying on with Allah Bachaya son of the complainant. The petitioner even got a case registered against the deceased in that very connection and got him arrested." To consider the contention leave was granted vide order dated 24-2-1990.
4. Learned counsel for the appellant has submitted that the deceased had outraged the modesty of the appellant's wife for which a case was registered and the deceased was arrested. On the day of occurrence he called the appellant "Dalla" and that he (the appellant) had become "Baghairat".
It was in these circumstances that the occurrence had come about. Learned counsel submitted that it was not a case of premeditated murder but fell squarely under section 304, P.P.C. Learned counsel submitted that the appellant has already remained in detention for six years and three months. He referred to "Kamal v. The State" (PLD 1977 SC 153 (159) to submit that the sentence undergone is more than is usually given in such circumstances.
5. Learned counsel for the State has not controverted the submissions.
6. After hearing the learned counsel for the parties, we are of the view that in the circumstances of the case as these appear on record the plea of grave and sudden provocation was not an afterthouhgt. It was not a premeditated murder. Therefore, appellant's conviction under section 302, P.P.C. Is set aside. Instead, he is convicted under section 304, Part I, P.P.C. And sentenced to the period already undergone. He shall be released if not wanted in vany other case provided he pays the compensation of Rs,5,000 under section 544-A, Cr.P.C. As ordered by the learned trial Court. In case of default, he shall suffer six months' R.I.