P (PLP)

It must further be shown that the offender was deprived of the power of self‑control by grave and sudden provocation. It is not every provocation that will reduce the offence of murder to mere culpable homicide. The test to be applied is to see what effect the provocation given would have on an ordinary reasonable man. An unusually excitable or pugnacious individual cannot be allowed to rely on provocation which would not make a normal man act as he did. The resentment caused by‑ the provocation and the act done in consequence thereof must bear reasonable relationship to the provocation if the offence is to be reduced from murder to mere culpable homicide. Muhammad Amin Khan, for Appellants. Ch. Muhammad Sharif, A. A: G. for Respondent. JUDGMENT. MUHAMMAD JAN, J.‑Fatta, son of Buta, aged about 40 years, and his wife's brother Gulzari, aged about 25 years, have been convicted under section 302 Pakistan Penal Code and sentenced to transportation for life for intentionally causing the deaths of Ahmad Shah, aged about 40 years; and his cousin Pir Shah, aged about 35 years, on 16th May 1950 at about 11 a. m. in village Satghara, District Montgomery. The report relating to the occurrence was made by Bahar Shah (P. W. 4), brother of Ahmad Shah deceased; at Police Station Renala Khurd, situated at a distance of about six miles from Satghara at about 2‑30 p. m. the same day. Fatta's son Sammon, Gulzari's father Rangu and three others, named, Chanan, Bhag and Piara were tried along with the appellants for being members of an unlawful assembly in prosecution of the common object of which the deceased were killed. They were, however, acquitted. The facts of the case are that Mansha (P. W. 10) and Nura are resident barbers of village Satghara, while Zabta and Hussaina are refugees working as barbers in the same village. Hussaina went about canvassing for work which was resented by the other barbers mentioned above. They decided to get together and protest about it to Hussaina, so that he may stop interfering with their work. A few days before the 16th May, Mansha was shaving one Nazir goldsmith in his shop when Tufail (P. W. 14) son of Zabta barber passed that way. Mansha told him to ask his father to arrange for the visit to Hussaina at an early date. Tufail said that protests to Hussaina would do no good because he was a shamelessman. He added that Sammon, son of Fatta appellant, had gone one day and asked Hussaina's wife to lend him a razor for shaving his private parts and Hussaina took no notice of it. Sammon's mother was present at the shop and heard the conver sation between Mansha and Tufail. She went home and told her husband, Fatta appellant and her son Sammon about it. Next day, Fatta and Sammon met Mansha and beat him for indulging in the above mentioned conversation with Tufail. Mansha complained about it to his friend and patron Muhammad Shah (P. W. 11). Next day, Mansha and Muhammad Shah met Fatta and beat him. Fatta's son Sammon and his wife's brother Gulzari arrived on the scene, Mansha ran away and they beat Muhammad Shah. On medical examination, Muhammad Shah was found to have five simple injuries caused with a blunt weapon. Muhammad Shah spoke to his brother Pit Shah deceased and his cousin Ahmad Shah deceased about this incident. They went to the shop of Muhammad mochi and there met Rangu, father of Gulzari appellant, and told him that his son' Gulzari and his grandson Sammon had been guilty of an assault upon. Muhammad Shah. This led to an exchange of abuses anti it appears that Rangu was struck. He was found to have a contused wound 1" X ", scalp deep on the top of the head. Range went home and Bahar Shah (P. W. 4) arrived at the shop of Muhammad mochi. Pir Shah and Ahmad Shah told him about the quarrel that had taken place between them and Rangu. In the meantime, Rangu came back with his son Gulzari 'appellant, .his son‑in‑law Fatta appellant, his grandson Sammon, and Chanan, Bhag and Piara. The "appellants were armed with spears and the others, who have been acquitted, were stated to have been armed with dangs. Fatta appellant struck Ahmed Shah one blow with a spear on the neck and killed him. Gulzari appellant struck Pir Shah one blow on the neck and one in the chest which resulted in his death. This happened in the presence of Muhammad mochi (P. W. 3), Bahar Shah (P. W. 4), Muhammad mochi's nephew Fazal (P. W. 5), Bashir, who is a cousin of Pit Shah deceased (P. W.6) and Sardara (P. W. 7). The last named two witnesses were tendered for cross‑examination and the remaining three; namely, Bahar Shah, Muhammad mochi and Fazal were examined as eye‑witnesses of the occurrence. Their evidence fully supports the version set out above. The version put forward by Fatta appellant is that on the day of this occurrence he was assaulted by Muhammad Shah and others. They are powerful people and, apprehending further, trouble from them, Fatta and his father‑in‑law Rangu proceeded towards the Police‑Station to make a report. When they reached the western gate‑of the city they were attacked by Pit Shah and Ahmad Shah, who were armed with a dang and a spear. Many people assembled at the spot and Fatta acted in self‑defence. He did not say what he had done m self‑defence and produced no evidence in support of his plea. His medical examination shows that he had four contused wounds and four scratches on his person. Muhammad Shah (P. W. 11) had three contused wounds and two scratches on his person. The prosecution have proved these injuries in support of, their version that Fatta was beaten by Mansha and Muhammad Shah and, on the arrival of Sammon, son of Fatta and Gulzari, brother‑in‑law , of Fatta, they beat Muhammad Shah. It was after this that Pit Shah and Ahmad Shah had s, quarrel with Rangu and struck him. Rangu, who is an old man of about $0 years, then complained to his people whereupon the appellants came armed with spears along with others and killed the deceased. The others were acquitted, because they were stated to have been armed with dangs and no injuries caused with blunt weapons were found on the persons of the deceased. After going through the evidence and hearing the learned counsel for the appel lants, we have arrived at the conclusion that Fafta appellant has taken advantage of the injuries on his person to set up the plea that he was attacked whilst going to the police station and had acted, in the exercise of the right of private defence. According to his own statement, many people had collected at the spot and it was open to him to call some of those persons as witnesses in support of his plea. The prosecution had produced sufficient evi dence to show that things had happened in the manner alleged by them and it was up to the appellants to show that they were entitled to the benefit of any of the Exceptions of section 300 Pakistan Penal Code. They failed to do this. Moreover, Fatta said that he was attacked by the deceased who were armed with "dung and spear". As stated above; he had four contusions and four scratches which were all stated by the doctor to have been caused with a blunt weapon. At least the contusions must have been caused with some blunt, weapon and it is difficult to be lieve that, if Fatta had been attacked with a spear the injuries produced would have been mere scratches. One scratch was 1/2" in diameter on the back of the left shoulder, the other was 1" x 1/3" on the back of the right shoulder, the third was 1" in diameter on the right knee and the fourth was 2" x " on the right forearm. The trial Court has held that after Ahmad Shah and Pir Shah had remonstrated with Rangu, his son Gulzari appellant and his son -in‑law Fatta appellant came armed with spears, perhaps accompani ed by some others, and had a fight, with the deceased. In the course of that fight, Pit Shah and Ahmad Shah received injuries which resulted in their death and Fatta appellant vas also injured. It is possible that Fatta received some injuries when he came to attack the deceased with Gulzari and others; but it seems more probable to us that the injuries found on Fatta were caused a little earlier by Mansha and Muhammad Shah as alleged by the prosecu tion. If the deceased had caused the injuries to Fatta in the course of the attack upon them we should have found some injuries on Gulzari appellant also who was the comrade in arms of Fatta. But Gulzari had no injury on his person. It has been argued before us that, accepting the prosecution version as correct, it must be held that the appellants had acted under grave and sudden provocation inasmuch as Gulzari appellant's father and Fatta appellant's father‑in‑law, Rangu, had been insulted and assaulted by the deceased, and the appellants, on coming to know about it, lost all self‑control. What they did, therefore, was said to be covered by Exception 1 of section 300 Pakistan Penal Code and, therefore, did not amount to murder. Exception 1 provides that culpable homicide is not murder if the offender, whilst deprived of the power of self‑control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident, It requires in the first place that what the offender did was done by him whilst he was deprived of the power of self‑control and had no time to cool down or to take into account the nature of the weapon used by him. It is not shown in this case what interval had 'elapsed between the appellants coming to know that Rangu had been assaulted and their attacking the deceased. It must further be shown that the offender was deprived of the power of self‑control by grave and sudden provocation. It is not every provocation that will reduce the offence of murder to mere culpable homicide. The test to be applied is to see what effect the provocation given would have on an ordinary reasonable man. An unusually excitable or pugnacious individual cannot be allowed to rely on provocation which would not make a normal man act as he did. The resentment caused by the provocation and the act done in consequence thereof must bear reasonable relationship to the provocation if the offence is to be reduced from murder to mere culpable homicide. The provocation given by the infliction of a simple hurt with a blunt weapon to Rangu was not enough to cause two normal men to attack the persons responsible for the hurt with spears and to kill them out right. It must also be remembered that Exception 1 applies to the causing of the death of the person who gave the provocation and it is not known which of the two deceased had caused the one and only simple hurt to Rangu which is relied upon as the provocation in this case. We are, therefore, of the opinion that the appellant's offence is not covered by Exception 1 to section 300 Pakistan Penal Code and they were rightly convicted under section 302 Pakistan Penal Code. The sentences awarded to them are the lesser of the two sentences as prescribed by law for murder and nothing more than that can be done for them. The appeal is, therefore, dismissed. A. H. Appeal dismissed.