P L D 1966 (W (PLP)

Suleman Qureshi for Respondent No.

2. Date of hearing: 21st August 1964. This application has been filed under sections 435, 439 and 561‑A, Criminal Procedure Code, by Ramzan, son of Jam, for the enhancement of the sentence of one year's rigorous imprisonment under section 304, P. P. C. passed upon Husain Bakhsh, son of Allah Bakhsh, respondent No. 2.

2. The relevant facts, in brief, are that about 3 days before the 7th of August 1962, Khair Muhammad, brother of Husain Bakhsh and son of Allah Bakhsh, accompanied by his wife Mst. Kamalan, went to the house of his father‑in‑law at Booharpur village. On the 7th August, it is alleged, he went for bathing in a minor canal near that village and met with an accident. It was in course of this accident, it is said, that he had received an injury on his neck, which, later on, proved to be fatal.

3. After his death on the same day, Khair Muhammad's dead body was taken in a bullock cart by Ramzan, uncle of Mst. Kamalan, and her grandfather Jam to the house of his (Khair Muhammad's) father Allah Bakhsh at Bazar Ghat near Jacobabad.

4. As soon as Allah Bakhsh and his son, Husain Bakhsh, respondent No. 2, learnt that the dead body of Khair Muhammad had been brought by Ramzan and Jam, they came out and questioned them regarding the circumstances in which he had met his death. It was Jam, it is said, who explained the position, saying how Khair Muhammad had met with an accident and received the fatal injury. At this stage, according to the prosecution, at the instance of Allah Bakhsh, Husain Bakhsh, respondent No. 2, attacked Jam. In course of this attack, lie is alleged to have given him a blow with the back side of his hatchet on his head and thereby caused him the fatal injury which had resulted in his death on the following day in the Civil Hospital, Jacobabad. It was mainly on the basis of these facts that both Allah Bakhsh and Husain Bakhsh, respondent No. 2, had been proceeded against and tried. Allah Bakhsh was, however, acquitted, while Husain Bakhsh, respondent No. 2, was convicted of an offence punishable under section 304, P. P. C. and sentenced to suffer rigorous imprisonment of one year. This sentence, according to the learned counsel for the applicant, is rather inadequate and has resulted in failure of justice. It is, therefore, urged by him that it should be suitably enhanced.

5. On the other hand, the learned counsel for Husain Bakhsh respondent No. 2, urges that this prayer should be rejected in view of the fact that he (respondent Hussain Bakhsh) had apparently lost his self‑control on seeing the dead body of his brother, Khair Muhammad, who had, only 3 days earlier, gone to the house of the deceased. Moreover, according to him, he was justified in being thus provoked on account of the version given out by Jam regarding the circumstances in which Khair Muhammad had met his death. In any case, in his view, the sentence passed against Husain Bakhsh, respondent No. 2 is not inadequate and therefore, does not deserve to be enhanced. The learned counsel for the State supports this view of the learned counsel for respondent Husain Bakhsh. In his view too, the sentence passed upon him is adequate and need not be enhanced.

6. I do not, however, agree with them. It is, no doubt, true that Khair Muhammad had left his village only 3 days earlier to go to the house of his father‑in‑law and his dead body had been brought back by Jam, the grandfather and Ramzan, the uncle of his wife, Mst. Kamalan, with a version which on the face of it appeared to be very doubtful. It also appears that at the time when Jam was given the hatchet blow, Allah Bakhsh, the father of respondent Husain Bakhsh, was also present nearby. He has not, however, been found to have instigated him to attack Jam who had given the version regarding the circumstances in which Khair Muhammad had met his death and that was why he had been acquitted. Therefore, it would appear that it was respondent Husain Bakhsh himself who had moved in the matter and straightway given a blow with the back side of his hatchet on the head of Jam as soon as he had given out his version. The weapon used was, no doubt, dangerous even if its back side was availed of The blow had, no doubt, been given with considerable force. That is why it had resulted in injuries that had caused the death of Jam only on the following day. In view of these circumstances, I do not think that the sentence passed upon Husain Bakhsh, respondent No. 2, is adequate in this case.

7. Considering the background of the occurrence, as briefly indicated above, I enhance the sentence of one year's rigorous imprisonment passed upon respondent Husain Bakhsb to five years' rigorous imprisonment. This application is allowed in so far as indicated above. S.Q, Petition allowed.