P (PLP)

Muhammad Amin Butt, for Appellant. Assistant Advocate‑General, for Respondent. JUDGMENT.‑This is an appeal by Mirza against his conviction under section 325 Petal Code and ‑sentence of two years' rigorous imprisonment and ‑Rs. .50 fine passed on him by the Sessions Judge, Muzaffarabad. The appellant was challaned under section 3 4 Penal Code on the allegations that he caused the death of Faqirullah by giving the latter soti blows on the head, on 13th September, 1948. The appellant stated that he had given the deceased only one soti blow on the leg, when the latter‑struck him with a stone. The learned Sessions Judge found that the dispute arose between the appellant and the deceased over the cutting of grass and it was followed by abuses hurled by the deceased at the appellant with the result that the appellant under, provocation beat the deceased. The result was that the learned Sessions judge convicted the appellant under section 325 Penal Code instead of under section 304 Penal Code and treated him leniently. It is common ground that a dispute arose between the deceased and the appellant over the cutting of grass before the deceased was beaten. It is also admitted that before the deceased was given soti blows he abused the appellant. In the circum stances it is to be seen whether the appellant himself sought the provocation or the deceased was responsible for it. 'The grass, which the deceased was cutting shortly before the occurrence, belonged to the deceased and the appellant jointly as appears from the evidence of Halim, the only witness examined for defence. The appellant was, therefore, not justified in preventing the deceased from cutting the grass. There is no evidence on record to show what abuses were uttered by the deceased. If the abuses were not filthy and amounted only to a sort of remonstration on the part of the deceased with a view to protest against the action of the appellant, then it cannot be reasonably said that, the appellant acted under provocation in beating the deceased. No evidence was led to show that the deceased had hit the appellant with a stone before he was beaten. If the defence of the appellant in that respect had been correct then some sort of injury would have been found on his person. We are, therefore, of opinion that the statement of the appellant that the deceased threw a stone at him or hit him with a stone is not at all true. We feel satisfied, that the appellant beat the deceased without any provocation on the part of the latter. The medical evidence shows that the deceased sustained three injuries on his head, which resulted in intra-cranial haemor rhage ultimately causing his death. The plea of the appellant that he caused only one injury to the deceased on the leg cannot be accepted it the absence of the evidence that the deceased received head injuries from any other assailant. The nature of the injuries suffered by the deceased indicates that the blows were given with sufficient force on the delicate part of the body, and in the circumstances the only possible conclusion .is that the appellant acted with the knowledge that his action was likely to cause death even if he had no intention to cause death. In other words; the offence committed by the appellant fell under section

304. Penal Code and not under section 325 Penal Code and the learned Sessions judge was wrong in convicting the appellant under the latter section. The learned Sessions judge has written long judgment criticising the evidence produced by the prosecution, and we need only say this much that in view of the defence taken by the appellant and the medical evidence produced in the case the main story of the prosecution could not but be taken as substantially true. The defence of the appellant stood contradicted by the evidence of the only witness examined in rebuttal of the prosecution evidence. The Sessions judge would have done better if he had criticised the defence instead of the prosecution evidence. It appears that the Sessions judge for some reasons best known to him wanted to deal with the appellant leniently and hence he wrote lengthy judgment justifying his action to some extent. Otherwise the facts of the case were quite clear independently of the evidence of the eye‑witnesses examined on either side. We fail to appreciate the reasons given by the Sessions judge for convicting the appellant under section 325 Penal Code. Even if there was any sudden and grave pr6voca tion on the part of, the deceased then also the appellant could not be convicted under section 325 Penal Code on the facts as they stood on the record. We, therefore, advise the learned Sessions judge to study the section of the Penal Code minutely before‑recording conviction of the accused. The Government have not preferred any revision petition. We do not, therefore, feel, inclined to alter the conviction of the appellant and give him enhanced punishment. We simply dismiss the appeal. K. M. A. Appeal dismissed.