1. ANWARUL HAQ, J.-The respondent Aziz Ahmed was convicted under section 302, P. P. C. And sentenced to death by the learned Session Judge, Gujrat, for the murder of one Zahid Hussain Shah with a knife ; but on appeal and reference a Division Bench of the Lahore High Court took the view that the offence committed R as one under section 304, Part I of the Pakistan Penal Code, and sentenced the respondent to ten years' rigorous imprisonment. Leave to appeal was granted to the father of the deceased to consider the contention that the High Court was not legally competent to alter the conviction without any evidence in support of the probability that the respondent acted under grave and sudden provocation on seeing his sister being dragged by the deceased towards his house.
2. After hearing the learned counsel for the parties as well as Mr. Bilal for the State we are of the view that the contention raised on behalf of the appellant must prevail.
3. The occurrence took place at 6-15 p.m. On the 8th of April 1970 in Mohallah Tibba Rangpura at a distance of three furlongs from Police Station City Gujrat. It is said that at that time the deceased Zahid Hussain Shah, a student of the Second Year Class in a local college, his brother laved Hussain Shah (P. W. 9), and a class mate Tariq Javed (P. W. 8), were standing in the street near the house of Tariq Javed when the respondent came there and started abusing the deceased saying why was he teasing the respondent---s sister. The deceased denied the charges, where upon the respondent pulled out a Chhuri from the folds of his trousers and gave a blow with it on the right flank of the deceased. The witnesses attempted to apprehend the respondent but he managed to run away along with the Chhuri. The injured man was taken to the Hospital where he expired on the fallowing day.
4. At the trial, the prosecution placed reliance on the dying statement of the deceased as well as the ocular account of the incident as given by Tariq Javed and Javed Hussain Shah. The blood-stained Chhuri was also recovered at the instance of the respondent, who admitted the occurrence, but asserted that he bad acted under grave and sudden provocation on the outcries of his sister Mst.
5. Makki who was being dragged by the deceased towards his house. The learned trial Judge accepted this evidence and rejected the defence plea.
6. We find that the learned Judges of the High Court have acted on mare conjectures and speculations in observing that "it is probable that the deceased was teasing the sister of the appellant in the street near the appellant's house when the appellant came out and reproached him. It is further probable that the parties had an altercation in which the appellant gave a single blow with his Chhuri to the deceased which eventually resulted in his death." The defence plea was put to the two eye-witnesses but the firmly repudiated the same. There was no evidence at all on the record to establish that the respondent's sister Mst. Makki was present anywhere in the street at the time of the occurrence. In these circumstances, the learned counsel for the appellant is clearly right in submitting that the conclusion reached by the learned Judges in the High Court was based on mere conjectures and could not be sustained.
7. As a result, we are of the view that the High Court was clearly in error in thinking that the offence committed by the respondent did not fall within the ambit of section 302 of the Pakistan Penal Code. We would accordingly set aside the order of the High Court and instead restore the conviction of the respondent under section 302, P. P. C, as recorded by the trial Court. On the question of sentence, we are of the view that as the respondent clearly acted) out of a sense of family honour, the learned trial Judge was not justified in exacting the extreme penalty of death from the respondent.
8. The ends of justice will be amply met if the respondent is sentenced to transportation for life, the sentence which was applicable before the promulgation of the Law Reforms Ordinance.