P L D 1966 Dacca 508 (PLP)

BAQUER, J.‑The case comes before us on a reference made by the learned Judge, Rajshahi, under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed by him against the two accused, namely, Kaicha Sarkar alias Kanchoo and Sefat Sarkar. They have both, also preferred an appeal against their conviction and sentence and they are represented before us by the learned Advocate Mr. Abdur Rasheed. Both the reference and the appeal were heard together and are being disposed of by this one judgment. The facts of the case as alleged are: The two accused, namely, Kanchoo and Sefat are two full brothers while the deceased Hazrat Ali was their close neighbour. On the morning of Thursday, the 28th of Jaistha, 1371 B. S. corresponding to 11th of June 1964, the children of the two accused and those of Azimuddin, another of the accused, fell out among themselves at the river Ghat over the washing of some grass. The wife of Azimuddin and Jariman the wife of the deceased intervened and tried to dissuade the children from quarrelling. In course of such intercession, the wives of the two accused appeared there and went on altercating with Jariman and the wife of Azimuddin. When the altercation was going on, accused Sefat and his brother Kanchoo appeared on the scene and started siding with their wives leading to the altercation being deepened in course of which accused Sefat assaulted Jariman and the wife of Azimuddin. Hazrat Ali the deceased was not at home at the time being away in the field to look after his cultivation. Subsequently the parties dispersed from the river Ghat. After midday at about Jahar prayer time, Hazrat Ali returned from the field when his wife Jariman reported to him all about the morning incident. Hearing it, Hazrat Ali flew into temper and went on abusing the two accused when Jabbar Ali the Prodhan of the locality interceded and asked him to keep silent as the matter would be discussed in the Salish in the evening. Some time after Hazrat Ali took his bath and then had his meal and after a little rest left for the Chandrapura Hat and it was then Asar prayer time. As soon as he reached the outer yard of Baharuddin P. W. l., the two accused fell up6n him. Accused Sefat had a Kanti‑‑a sharp cutting Dao, while the other accused had a Hansua‑a sharp cutting bending Dao in hand. The two accused went on assaulting Hazrat Ali with those weapons indiscriminately. On his cries, Fajari Bibi followed by her husband Baharuddin appeared at the scene and found Hazrat Ali being hacked to death by the two accused. Asia Bibi, an adjacent neighbour of P. W. 1 Baharuddin also saw the two accused assaulting Hazrat Ali, 1with those weapons. On their alarms, Kiamuddin, Azimuddin, Jabbar Ali, Jariman Bibi and others came to the scene of occurrence but before their arrival Hazrat Ali was already dead. They learnt of the incident in details from P. W. 1'. Baharuddin, his wife Fajari Bibi P. W. 2 and their close neighbour P. W. 3 Asia Bibi. Jariman P. W. 4 and Kiamuddin P. W. 8 while coming to the place of occurrence found the two accused fleeing away towards their house with the said weapons in hand. They also found stains of blood in their wearing apparels. They also. reported that fact to the witnesses present. Baharuddin Molla P. W. 1 then left for the Thana and lodged a first information report there in the night following. On the first information report P. W. 12 Officer‑in‑Charge, Singra Police Station visited the locality the next day the 12th of June 1964, at 5‑a.m. After examining the place of occurrence and'‑the dead body of 1:Iazrat Ali, he held an inquest on the same on the identification of his wife and other persons and then despatched it to Natore Morgue through constable P. W. 10 Gholam Khan for post‑mortem examination. He also examined the material witnesses including the eye‑witnesses to the incident. On identification by the constable, Dr. Imran, Medical Officer of the Natore Provincialised Hospital held the post‑mortem examina tion or. the dead body on the 12th of June, 1964 at 6 p.m. He found as many as 20 injuries on the different parts of the deceased. ' After investigation by the Investigation Officer, charge‑sheet was submitted against the two accused on the 19th of June 1964, and after preliminary enquiry by the committing Court, the two accused persons were sent up to the Court of Sessions for trial under section 302/34 of the Pakistan Penal Code. Their defence was a plea of not guilty to the charge. The defence also wanted to show that P. W. 1 Baharuddin had got land dispute with the accused and further that there were two factions in the locality and that one faction was led by Jabbar Ali P. W. 11 and the other by one Hossain and that the accused belonged to the party of Hossain, while Baharuddin P. W. 1 belonged to that of Jabbar Ali P. .W.

11. The further suggestion to P. W. 1 Baharuddin was that he had rivalry with Hazrat Ali in a love expedition with Sonabhan Bibi‑the legally married wife of one Enu and further that Baharuddin P. W. 1 to save himself, falsely implicated the two accused. The trial was held with the aid of four Assessors all of whom found the two accused guilty under section 302/34 of the Penal Code and the learned Sessions Judge in agreement with their opinion, convicted and sentenced the two appellants as above. Prosecution examined 11 witnesses and tendered one witness, namely, Sonabhan Bibi P. W. 6 who was not, however, cross-examined by the defence. The defence did not examine any witness. Out of the witnesses examined by the prosecution P. W. 1 Baharuddin Molla, his wife P. W. 2 Fajari Bibi and his brother's wife Asia Bibi P. W. 3 claimed to be the eye‑witnesses to the occurrence. P. W. 4 Jariman Bewa, wife of deceased Hazrat Ali, ‑P. W. 8 Kiamuddin, P. 1W. 9 Azimuddin Pk., and P. W. 11 Jabbar Ali have deposed in this case as witnesses of corroboration. The witnesses who have testified to the morning incident are P. W. 2 Fajari Bibi, P. W. 4 Jariman Bewa and P. W. 5 Abajan Bewa. The evidence of P. W. 2 and P. W. 4 is that in the morning of the date of occurrence, namely, Thursday, the 28th of Jaistha, 13.71 B. S., there was a quarrel between the children of the two accused persons and P. W. 9 Azimuddin over washing of grass at the river Ghat and subsequently the wives of both the accused came and quarrelled with Azimuddin's wife and Jariman. At that time accused Kanchoo and Sefat intervened and the latter assaulted Azimuddin's wife and Jariman. The evidence of P. W. 2 and P. W. 4 has received corroboration from P. W. 5 Abajan Bewa in that she has testified to the effect that there was a quarrel on that day in the morning at the river Ghat and in that quarrel accused Sefat assaulted the wives of Azimuddin and Hazrat Ali. Further corroboration to this story is available from P. W. 1 Baharuddin who has stated in the evidence that on return from the field at Jahar prayer time he learnt from his wife about the morning quarrel between the children and that he was further informed by his wife that the quarrel of the children gave rise to a quarrel amongst the wives of the accused and of Azimuddin and Hazrat Ali and that accused Sefat then intervened and assaulted the wives of Azimuddin and Hazrat Ali in presence of the other accused Kanchoo. The evidence of P. W. 1 Baharuddin and P. W. 2 Fajari Bibi on this point has gone uncontroverted. It was suggested to P. W. 4 that the story of the morning incident was false but she emphatically denied the suggestion. No other question was put to her by the defence challenging the story. So far as the evidence of P. W. 5 Abajan on this point is concerned, she has stated in cross‑examination that she heard of the morning incident. Mr. Rasheed, the learned Advocate for the condemned prisoners has not seriously challenged the morning incident. On a consideration of the evidence of P. Ws. 1, 2, 4 and 5 as to the morning incident as discussed above, we find that the prosecution has been able to prove beyond reasonable doubt that on the morning of the date of occurrence there were successive quarrels between the children and the wives of the two accused persons and of Azimuddin and Hazrat Ali and that intervening in that quarrel accused Sefat assaulted the wives of Azimuddin and Hazrat Ali in presence of accused Kanchoo. The next incident in point of time is that of hurling of abuses by the deceased Hazrat Ali on both the accused persons from his house. The evidence of P. W. 1 Baharuddin on this point is that on return home from the field, the deceased abused Sefat and Kanchoo from his house and that time P. W. 11 Jabbar Ali intervened and asked him to keep silent as the matter would be discussed in a Salish. ' Corroboration to this story comes from P. W. 2, P. W. 1; P. W. 5, P. W. 8, P. W. 9 and P. W. 11 Jabbar Ali himself. Their evidence in substance is that at Jahar prayer time when Hazrat Ali returned from the field, his wife P. W. 4 Jariman reported the morning incident to him; whereupon Hazrat Ali began abusing the accused from his house. P. W. 11 has testified that the deceased on learning of the morning incident from his wife began abusing Sefat and Kanchoo and that he (Jabbar Ali P. W. 11) asked Hazrat Ali to refrain from abusing saying that the matter would be settled up in dispute. On a scrutiny of the evidence with regard to the deceased abusing the accused persons and P. W. 11 Jabbar Ali intervening and stopping it, it appears that P. W. 1 Baharuddin had no direct knowledge about it. He admitted in cross‑examination that he did not bear Hazrat abusing the accused but learnt about it from his wife who also told that Jabbar Ali intervened to effect a compromise. It may be mentioned here that his wife P. W. 2 Fajari has stated :‑

"I reported all those facts to my husband" ; referring to the morning incident and the story of abuse‑by Hazrat and interven tion of P. W. 11 Jabbar Ali. In her cross‑examination P. W. 2 Fajari affirmed that she heard Hazrat Ali abusing the accused as she was present there having gone to the house of the deceased. But the evidence of the Investigation Officer P. W. 12 shows that she did not state to him that she heard Hazrat Ali abusing the two accused. In cross‑examination P. W. 9 Azimuddin denied the suggestion that he did not hear Hazrat abusing Sefat and Kanchoo and P. W. 8 stated: "Hazrat Ali abused Scfat and Kanchoo from his house." P. W. 11 stated that he heard from his house that Hazrat Ali was abusing Sefat and Kanchoo and that he went to the house of Hazrat and asked him to wait till evening when the matter would be settled out. It will be observed that there was no cross‑examination of the witnesses suggesting that it was not possible for them to hear the abuses hurled by the deceased on the accused persons. It has transpired in the evidence of P. W. 11 that the distance between the house of Hazrat Ali and Kanchoo would be at best one Rashid, that is, 80 cubits. It may be observed here that the evidence of P. Ws. 4 and 5 relating to the story of abuse of the accused by the deceased has not at all been challenged and the defence could not successfully impeach further that correctness of the evidence on this point. In these circumstances, we are satisfied that the prosecution story that Hazrat Ali abused the accused persons at Jahar prayer time on coming to learn about the morning incident from his house and that he stopped further abusing them at the intervention of P. W. 11, is true. As regards the actual occurrence, the evidence of P. W. 1 is that while he was taking his meal at Asar prayer time he heard a Golmal coming from the east and along with his wife who was present by his side he came out of his but and went to his outer yard and found accused Kanchoo and Sefat assaulting Hazrat Ali right and left with a Hansua and a Kanti respectively; that he and his wife raised alarms which attracted P. W. 4, P. W. 8, P. W. 5, P. W. 6 and others to the scene of occurrence ; that P. W. 11, P. W. 9 and many others also came and that they narrated the incident to them in details. He has further stated that P. W. 3 also witnessed the incident. He has also testified that Hazrat Ali died on the spot as a result of the injuries inflicted by the accused ; that P. W. 8, P. W. 4, P. W. 5 and P. W. 6 reported that they found the two accused fleeing away with the weapons in hand and that' they saw bloodstains in their clothes. Similar is also the evidence of P. W. 2 Fajari Bibi. She has also stated that at Asar prayer time on the relevant date her husband P. W. 1 was taking his meal served by her. When they heard cries coming from their outer yard, she hastened to the spot followed by her husband and saw the two accused striking Hazrat Ali indiscriminately with Hansua and Kanti respectively; that the alarms raised by herself and her husband attracted P. W. 8 Kiamuddin, P. W. 5 Abajan Bewa, P. W. 4 Jariman, P. W. 11 Jabbar Ali, P. W. 9 Azimuddin, P. W. 6 Sonabhan Bibi and others to the spot ; that by that time Hazrat Ali succumbed to the injuries and that P. W. 4 told them that while coming to the place of occurrence she found the accused fleeing away with bloodstains in their wearing clothes and with weapons in their hands. She added that they found an umbrella and a Ganzi lying near the dead body. The other eye‑witnesses, namely, P. W. 3 Asia Bibi has deposed that at Asar prayer time Kanchoo and efat assaulted Hazrat Ali indiscriminately with Hansua and Kanti respectively and that as a result of those injuries Hazrat Ali died on the spot. This witness has further testified that on her alarm P. W. 8, P. W. 5, P. W. 6, P. W. 4, P. W. 11, P. W. 9 and others came and that she reported the facts to them. So far as the main story of the occurrence goes, the evidence of these three eye‑witnesses is consistent and of uniform nature. It has emerged in the evidence of P. W. 1 that accused Sefat had married his uterine sister and that he (P. W. 1 Baharuddin) in turn has married a step‑sister of accused Sefat. He denied the defence suggestion that Sefat claimed a share in his property and that he himself claimed a share in the property of Sefat and that he has got dispute with the sister who is the wife of Sefat over some property. It has been elicited in cross‑examination that he saw Hazrat Ali being assaulted by the accused from a distance of 7 or 8 cubits and that they found Hazrat Ali lying on the ground when the accused persons were assaulting him. A suggestion of the defence put to P. W. 1 was that Hazrat Ali and he used to visit Sonabhan Bibi and that he had dispute with Hazrat Ali on such love affairs. The witness emphatically denied the suggestion, as also the further suggestion that he implicated the accused persons in this case out of previous enmity in order to save himself. In this connection, the learned Advocate for the appellants has invited our attention to the evidence of this witness that Taju was the first husband of Sonabhan Bibi P. W. d; that Latu was her second husband and Enu was her present husband and sought to argue from these facts that it was likely that Sonabhan Bibi P. W. 6 was the bone of contention between P. W. 1 Baharuddin and the deceased and that it was not improbable that Hazrat Ali was done to death by P. W. 1 Baharuddin. This, we are afraid, is a far‑fetched argument. Sonabhan Bibi P. W. 6 is 25 years of age. Simply because she is now living with her third husband, it cannot be argued with any fairness that she is a woman of loose morals and that two neighbours of her husband were engaged in wooing her. As to the probability of the. deceased having been killed by P. W. 1 Babaruddin, it is significant that the defence had not the courage to make such a bold suggestion but merely suggested that to save his skin, he implicated the accused persons falsely in ‑this case. The occurrence took place in broad daylight, and we are unable to accept the suggestion referred to above, as probable. P. W. 2 Fajari Bibi has stated in her cross‑examination that she saw the occurrence from a distance of 8 cubits. She and her husband appear to have been together and thus her statement as to the distance corroborates P. W. 1 Baharuddin. Corroborating her husband further she has said in cross‑examination that Hazrat Ali was assaulted while he was lying on the ground. It has transpired in cross‑examination of P. W. 3 Asia Bibi that her house is adjacent to that of P. W. 1 and that she witnessed the occurrence from a distance of 10 cubits. It is true that P. Ws. 1, 2 and 3 are inter‑related inasmuch as P. W. 2 Fajari Bibi is the wife of P. W.1; Baharuddin and P. W. 3 Asia Bibi is the brother's wife of P. W. 1 ; but they are the most natural, probable and competent witnesses of the incident‑regard being had to the fact that the occurrence took place on the outer yard of the house of P. W. 1 Baharuddin which is contiguous to the house of P. W. 3 Asia Bibi. There is the uniform testimony of the aforesaid eye‑witnesses that the assault on the deceased took place in the outer yard of P. W. 1 to the east of his house. The other local witnesses also rushed there on hearing alarms and found the dead body of Hazrat Ali lying there. There is also evidence to the effect that the dead body was found lying in a pool of blood. The situation of the actual place of occurrence will be clear from the rough sketch map Exh. 3 read and considered with the index Exh. 3 (1) and the evidence of the Investigation Officer P. W. 12. "S" in the map indicates the house of P. Ws. 1 and 2, and "C" is their outer yard to the east acid "A" is a particular place within "C" where the dead body was found by the Investigation Officer. "H" is the house of P. W. 3 to the contiguous north of "S". To the further north are the houses of the accused and P. Ws. 5 and

6. To the east of these lines of homestead are the outer yard attached to those houses and to the further east is the pathway indicated by the letter "F". To the contiguous east of that pathway is a river bank indicated by letter "G" at the head of which or the north is the house of the deceased Hazrat Ali as shown by the letter "M". It is worthwhile mentioning here that the venue of the occurrence as testified to by the prosecution witnesses has not been challenged by the defence. One significant fact to which reference may usefully be made here is that P. Ws. 1, 2 and 3 are not related to the deceased nor has the defence been able to make out a case .of any enmity of k all or some of these witnesses against the accused persons. The evidence of the eye‑witnesses regarding the occurrence and the assailants of the deceased thus stands unimpeachable. The corroborative witnesses, namely, P. Ws. 4, 8, 9 and 11 have testified that they learnt from P. Ws. 1, 2 and 3 that Hazrat Ali was assaulted by accused Kanchoo and Sefat. Their further evidence is that they having repaired to the scene of occurrence on hearing alarms found that Hazrat Ali was lying injured in the outer yard in the east of the house of P. W.

1. Thus they have lent corroboration to the story of assault as told by the eye witnesses inasmuch as the latter reported the names of the accused persons as assailants of the deceased immediately after the occurrence. A more substantial kind of corroboration as sought to be proved is provided by P. Ws. 4 and 8 who claim to have seen the accused running away towards their house with weapons in their hands and bloodstained cloths. They have also testified that they reported these facts to P. Ws. 1, 2 and

3. The evidence on this point does not however bear scrutiny. None of these witnesses, namely, P. Ws. 4 and 8 made any such statement to the Investigation officer: P. W. 1 did not state in First Informa tion Report that he was told by P. Ws. 8, 4, 5 and 6 that they saw the accused fleeing away with the weapons in hand and that they had bloodstained clothes on them as deposed to by him in the Sessions Court. It also deserves mention that according to P. W. 2, P. W. 4 told them of having seen the accused on flight with bloodstains in their wearing clothes. She did not mention P. Ws. 8, 5 and 6 as having told them that they also saw the accused fleeing away with the weapons in band and bloodstained clothes in their wearings as affirmed by P. W.

1. Furthermore, she also did not mention to the Investigation Officer that even P. W. 4 reported to them that she saw the accused on flight with the weapons in hand and bloodstained clothes in their wearings. P. W. 3 Asia Bibi's evidence is silent on this point. She has not stated that any one told them of having seen the accused running away with the weapons and with bloodstained clothes on P. W. 5 and P. W. 6 also did not support this story. The omission to mention important facts referred to as above to the Investigation Officer on the part of the aforesaid witnesses are almost in the nature of contradictions. Due to these omissions and contradictions and the discrepancies pointed out above, we are unable to accept the story that P. W. 8, P. W. 5 P. W. 4 and P. W. 6 saw the accused fleeing away towards their house from the place of occurrence with the weapons in their hands and stains of blood in their wearing apparels. This part of the story seems to be an embellishment and improvement in the case in order to lend support to the evidence of the eye witnesses. P. W. 5. sought to introduce a circumstance in the case by stating that after the deceased abused the accused she found accused Sefat and Kanchoo sharpening their respective weapons, namely, Hansua and Kanti and that she showed this to Sonabhan P. W.

6. This story of sharpening of the weapons also does not deserve any credence having regard to the fact that the existence of fencing between the house of Abajan and the house of the accused rendered it highly improbable that she would be able to see the accused sharpening their respective weapons on their own plinths as stated by her. Besides on the admission of P. W. 5, Abajan herself, her husband was at home at that time and yet it appears that instead of showing this to her husband, she showed it to Sonabhan P. W. 6 who lives in a different house. Even this assertion that she showed it to Sonabban is not corroborated by the latter who though produced in Court was not asked a single question on this point but merely tendered. For these reasons we are not prepared to accept the story of the sharpening of the weapons by the, accused, as correct. The prosecution appears to have been ill‑advised to introduce this story and that of some witnesses having seen the accused fleeing away with the weapons and bloodstained clothes in their wearings. Even leaving out the above corroboration and this circumstance out of account, there is enough convicting proof of the fact that both the accused assaulted Hazrat Ali right and left with a Hansua and a Kanti respectively causing his instantaneous death. This outstanding fact has been proved to our satisfaction by unimpreachable evidence on this point. All the three eye witnesses, namely, P. Ws. 1, 2 and 3 reported the occurrence to those who repaired to the scene immediately after the incident, naming these assailants of Hazrat Ali and even naming the weapons they used which fact is corroborated by the other witnesses as shown above. We also find that for the reasons stated before the defence suggestions are not borne out by any evidence. The evidence of the eye‑witnesses as to the murderous assaults finds corroboration and support from the medical evidence, namely, that of P. W. 7 Dr. Imran who held the post‑mortem examination on the dead body of Hazrat Ali on the 12th of June 1964, at 6 p.m. He found the following injuries as testified to by him, namely :‑ "(1) One incised wound on the lower half of the back of the right upper arm, medsuring 4" x 1 " x bone deep. (2) One transverse incised wound of 3' x2" x bone deep on the back of right elbow joint. (3) One incised wound on the left parietal region 4 " x 3/4" x bone deep. (4) One incised wound on the left side of the forehead 1" x " X bone deep. (5) One incised wound extending from the right eye‑brow to the right side of the nose 3 1/3"x 3/4" x bone deep. (6) One incised wound on the left side of the chest 3" x "" x bone deep. (7) One incised wound on the lower third of the back of the left arm 3 "x " x bone deep. (8) One incised wound on the lateral side of the left palm 4 " x 1" x bone deep. (9) One incised wound on the left between thumb and index finger of the left hand 1 " x " x 1 ". (10) One oblique incised wound on the lower part of the back of chest on right side 3" x 1 " x cavity deep. (11) One transverse incised wound on the lower part of the back of chest more on the left side 4 " x 2" x bone deep. (1) Cracked fracture of 3/4" long on the frontal bone of the left side corresponding with the injury No. 4. (2) Fracture of spine of the 12th thoracic vertebrae corresponding with the injury No. 11. (3) 4th and 5th ribs of the left side were fractured, corres ponding with the injury No. 6. (4) Fracture of the 9th and the 10th ribs of the right side corresponding with injury No. 10. (5) Plear of both sides were injured corresponding with the injuries Nos. 6 and 10. (6) The left lung was punctured on the upper lobe correspon ding with the injury No. 6. (7) Fracture of the left humoras corresponding with the injury No. 7. (8) Fracture of the olecranon process of the right ulna corresponding with the injury No. 2. (9) Dislocation of the right elbow joint corresponding with the injury No.

2. All the injuries were caused by heavy sharp cutting weapons such as `Hansua' Exh. 1 and 'Kanti'." This evidence discloses that there were as many as 11 external injuries leading to as many as 9 internal injuries on the person of the deceased. Injuries Nos. 3, 6, 10 and 11 seem to be in the vital region ; No. 3 being in parietal region and Nos. 6 and 10 on chest and No. 11 on the back of the chest. Injury No. 6 led to rib injury and penetrating of the left lung. Injury No. 10 led also to rib injury. Injury No. 11 led to fracture of spine. All the injuries, according to the doctor, were caused by sharp cutting instrument like Hansua and Kanti and were ante‑mortem and homicidal in nature and in his opinion death was due to shock and haemorrhage consequent upon those injuries and further the injuries, according to him, were sufficient to cause death in the ordinary course of nature. The doctor further stated in cross-examination that the victim might have been assaulted while standing or lying on the ground. The injuries were by deadly weapons and several of them were inflicted in the vital region. The ingredients, therefore, seem to be of the offence under section 302 of the Penal Code because there is no proof of provocation to the extent necessary for bringing the case under Exception (1) to section 300 of the Penal Code. We will advert to the question as to whether the provocation indicated by the facts and circumstances of the case does justify the inflicting of the lighter sentence. The motive of the occurrence is clear from the circumstances. The deceased hurled abuses on the accused persons at Jahar prayer time and this seems to have generated heat and passion in the accused who were naturally in search of an opportunity to retaliate. When Hazrat Ali was proceeding to Chandrapura Hat at Asar prayer time and had just gone past of the house of the accused by the pathway leading towards the south and passing by the east of their house and of others of the locality including P. W. 1 they fell upon him and struck him indiscriminately with Hansua and Kanti. Both the appellants who are brothers attacked jointly and at the same time with Hansua and Kanti and they apparently acted in furtherance of their common intention to kill. Before coming to the question of sentence, we think it necessary to advert to one other argument of the learned Advocate for the defence, namely, that the umbrella and the Ganzi which the deceased carried bore no marks of struggle or blood as they were found intact near the dead body. The evidence does not disclose that the Ganzi was in the wearing of the deceased. It might have been on the shoulder and thrown away from the body at the first impact and further as shown to Court by the learned Advocate for the defence, it is full‑of holes and torn. It cannot be definitely said that it bears no marks. So far as the umbrella goes, it is true that it is also intact and unharmed but then the nature and direction and the injuries are not such as to fix the attack only from the front. There are many back injuries and the suddenness of the attack may have led to the umbrella and Ganzi being thrown away at some distance from the body. There are some palm injuries on the hand of the deceased which indicate that the umbrella had left the grip of the hand before the attack. Now coming to the sentence, we find that the occurrence took place at about 5 p.m. which is three hours after the Jahar prayer time when the accused persons were abused. Thus the accused did not act under grave and sudden provocation so as to bring the offence out of the ambit of section 302 of the Penal Code. Though it is true that in the morning brawls it was the party of the deceased that wag worsted and there was no further reason left for the accused to wreak vengeance upon the deceased for the morning incident, the mid‑day abuses of Hazrat Ali which has been testified to by the several witnesses if by itself sufficiently provocative and a new "causes belli" and the occurrence took place within three hours thereafter at about 5 p.m. The provocation the two accused received at mid‑day were sufficient to upset them and bring about loss of self‑control. Although we do not have the exact words of abuse, we can safely imagine that after the morning incident in which the wife of Hazrat Ali was assaulted and worsted, the words of abuse are likely to have been highly vituperative. The heat created by the abuses could not be taken to have cooled off so soon after, within three hours. The following cases would throw some light upon the circumstances calling for lesser sentence. In the case of Emperor v. Girdhari Teli (A I R 1940 Pat. 605), a lighter sentence was given because there was no premeditation and because the attack took place during a dispute concerning possession of a plot of land. Harries, C. J., observed:‑-- In my view these circumstances tend to show that tae attack on Kali was not a premeditated one but was one made during a dispute concerning possession of plot No. 1503. Even if that view be accepted, it in no way follows that Girdhari's crime is anything less than murder, there is nothing on the record to show that Girdhari, was in real danger and that he was entitled to use the pole‑axe in defence of his own person. He certainly was not entitled to use anything in defence of property because he was the aggressor and had come to Plot No. 1503 which was in Kali's possession. Even if there was a quarrel and abuse, there was no justification whatsoever for Girdhari using a lethal weapon such as a pole‑axe, particularly when he himself was in the wrong and was the aggressor. The blow might have been struck in a quarrel, but the circumstances are such that Girdhari cannot possibly pray in aid any of the exceptions to section 300, I. P. C. The blows were extremely vicious and savage ones, and the person who struck them must have either intended to cause death or cause such bodily injury as would in the ordinary course of nature result in death. Even the most illiterate and ignorant person would realize that a savage blow with an axe in the region of the abdomen and spine was bound to cause death or injury which would result in death. In my view Girdhari, in striking these blows which caused Kali's death, was guilty of the offence of murder and was rightly convicted under section 302, I. P. C. There however remains the question of sentence. If the attack had been a premeditated one, I should not have interfered with the sentence passed. However, holding as I do that there was no premeditation and that the attack was made in a quarrel, I do not think that a sentence of death is necessary. In all probability Girdhari, enraged by what had occurred, picked up this axe and without any real thought attacked Kali with fatal results. In my judgment a sentence of transportation for life is sufficient in. this, case to meet the ends of justice." In the decision In re: Sankappa Shetty (A I R 1941 Mad. 326) Gentle, J., observed :

‑ "The absence of an apparent motive on the part of the accused in a murder case is material when the question of sentence is considered, and where the offence is not premeditated in any way but is the result of impulse and temper, transporta tion for life must be regarded as a proper sentence, though the assault may have been violent." The facts of that case were :‑

"A loving husband and an affectionate father who had never been known to have beaten or ill‑treated his wife on any previous occasion suddenly killed her in a closed room, which was bolted from inside, by battering her head and body brutally and violently with a sitting plank and inflicting as many as twenty wounds and bruises. There was complete lack of motive on the part of the accused who pleaded insanity. The accused was shown to have been strange and eccentric during about three days prior to the occurrence. He was labouring under a delusion that some relation of his had given drugs and that krutim (witchcraft) had been practised upon him. After five persons broke the room open the accused made no attempt to escape but appeared dazed: Held, that in the circumstances of the case the plea of insanity was not established and the accused guilty of murder: Held further, that the case did not call for the extreme penalty of the law and that transportation for life was a proper sentence inasmuch as the offence had been committed without premedi tation and the accused must have received what he considered to be considerable provocation before he attacked his wife in the away he did." There being difference between Gentle, J., and Patnajali Sastri, J. the matter was referred to a third Judge and placed before King, J., who upholding the views of Gentle, J., held on the point of sentence that this was a case which did not call for the extreme penalty of law as there was no premeditation. In the case of Muhammad Siddiq v. The State (P L D 1958 Lah. 601), where the deceased woman and the accused had been cohabiting together as lovers and the woman had been the latter's "beloved" mistress for four or five years and when the accused found the woman in compromising circumstances in a field with another man, and the accused killed the woman with pistol shots, it was held that though there was no proof of provocation that might fall under Exception 1 to section 300 of the Penal Code, the provocation indicated by circumstances of the case did not justify the inflicting of a capital sentence. The relationship of the accused with the woman was an illicit one; still it was held that when the accused found her in compromising position with the deceased, the provocations thus created was sufficient to attract the lighter sentence. The shots having been fired on the spot immediately such circumstances was held not to justify the extreme sentence. The next case is the case of Abdur Rahim v. The State (PLD1960SC401). In this case where the accused an old man of about 60 years of age was rebuking some small children for being noisy in their play and was ordering them to go away and the deceased a boy of 17 years took it upon himself to walk up to the door of the accused's quarter and there to engage in an equal exchange of abuse with a person who was old enough to be his father or even his grandfather, it was held that there was a degree of provoca tion to the older person appearing in the behaviour by the young boy which would naturally lead to loss of temper and even perhaps, a resort to violence by way of chastisement, in the oriental way of life, the authority of age being a tangible factor in social affairs. It was further held‑that there was in the conduct of the deceased towards the accused a measure of provocation leading naturally to an impulse of violence of which the murder by stabbing was the result. All the cases as above seem to indicate that when there is provocation and want of premeditation, the Courts have a tendency in favour of lighter sentence. Now coming nearer home, we have the decision of this Court in the case of The Crown v. Seraj Ali, Seraj Ali v. The Crown (7DLR119) in which also a lighter sentence was inflicted having regard to the fact that when the accused committed the murder he was under the influence of some provocation. The facts of that case show that there was an incident in the morning and the killing took place in the evening nearly 11 or 12 hours after the heat generated in the morning. The facts are that on the morning of the 12th of April 1954, a goat of the complainant Samiruddin entered into the land of the accused Seraj Ali and damaged his chilli plants. Seraj Ali tried to catch hold of the goat but he fled. So he abused the complainant Samiruddin for letting off his goat and the damage done to his chilli plants. The deceased who was a school teacher and Imam of the mosque, intervened and abused Seraj Ali and called him a thief. Seraj Ali threatened then and there that he would do something about it in the course of the day. In the afternoon at about the time of sun set and Maghrib prayer time when Khamiruddin was performing his abolutions for saying his Maghrib prayer on the west of their well, Seraj Ali came out of the bush near the well armed with a Dao and dealt a blow on the abdomen of Khamiruddin. On receiving the blow Khamiruddin cried out that Seraj bad cut him and ran towards the house but he fell down in front of the but of Sahabuddin and expired there. Taiyabuddin, who happened to be near the well at the time, caught hold of Seraj Ali who dealt Dao blows on the left hand of Taiyabuddin, but in spite of it he captured Seraj Ali with the help of others who turned upon the scene. The argument advanced was that the accused dealt only one Dao blow though in the abdomen and secondly that his chilli plants were damaged on the date of occurrence and that further instead of getting any redress for the same, he was called by the deceased Khamicuddin a thief and smarting under that and provoked by it, he out of sheer sense of vindication of his self -respect killed Khamiruddin. Those circumstances as disclosed in the argument seemed to have telling effect upon the Court and it was held that in the circumstances it was very likely for the accused to have been over-helmed with passion. It was observed by the learned Judges "It is true that the mortal blow was dealt not as soon as he was insulted but several hours afterwards, but the fact remains that the interval between the hour of insult and that of the occurrence was short. Although this interval is not short enough and the provocation is not grave enough to take the case out of section 302 of the Pakistan Penal Code and reduce the offence of the accused Seraj Ali from one of murder .to that of culpable homicide not amounting to murder, the fact remains that there was serious grievance under which he was smarting and it cannot be said that it was altogether unnatural for him, who had nothing against his character before them, to lose self -control as he did." Seen in the light of the decisions as above, the circumstances of the present case, make us feel inclined to hold that the sentence of transportation for life would be the proper sentence in the case of the two appellants and we hold accordingly. So the reference is rejected and the appeal is allowed in part, the convictions of the two appellants under section 302/34 of the Pakistan Penal Code are upheld but their sentences are altered to transportation for life in each case. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal partly accepted.