P L D 1962 Dacca 424 (PLP)

(3) That the evidence on record does not indicate any intention of causing death on the part of the assailants and consequently their conviction under section 302 of the Pakistan Penal Code is not legally sustainable ; (4) That the condemned prisoners are protected by the right of private defence of person ; and (5) That in any event the facts and circumstances in this case do not warrant capital punishment.

9. As regards the first point, it has been contended that even according to the prosecution itself, Tasir, far from taking any part, had not been present at the time of the incident in the course of which Asiruddin's baby daughter lost her life wherefrom it must follow that he had nothing to do with that occurrence concerning P. W. 1 Asiruddin and as such could not for his alleged participation in the subsequent incident concerning Misri Molla and Srimolla be called upon to stand his trial jointly with Deraj in respect of the accusation against the latter for the murder of the said baby. In other words, there has, according to Mr. Hye Chowdhury, been a mis-joinder of charges and persons both, in contravention of the provisions of sections 233 and 239 of the Code of Criminal Procedure and that, he urges, has vitiated the trial. In this behalf he has also placed his reliance upon Mosaddar Hoque and another v. State (P L R 8 Dacca 607).

10. In the above‑mentioned case their Lordships of the Supreme Court, in enunciating ‑the principle underlying the enactments embodied in sections 233 and 239 ibid, have laid down inter alia: - "Section 239(d) providing for a joint trial of two or more persons for different offences forms an exception to the primary rule enacted in section

233. The object of the exceptions noted in section 233 and as embodied among others in section 239 (d) is to avoid duplication of proceedings. The exceptions should, therefore, be strictly construed so as not to; defeat the right of separate trial conferred by section

233. The tests employed by the Courts for determining whether separate offences committed in course of the same transaction are whether they are. connected together by (i) proximity of time and place (ii) community ,of purpose. and design‑and (iii) continuity of action. The two last are essential elements while the first‑ is alone insufficient for a joint trial."

11. So far as facts are concerned, what appears to have 'happened in the above case is that a party, having presented a document before the accused Sub‑Registrar for registration along with a sum of Rs. 15 paid as bribe to him in pursuance of his persistent demands, proceeded, as instructed by the latter, to pay the prescribed registration fee of Rs. 6 to the accused Muharrar, whereon the said Muharrar demanded Re. 1 more saying that if he was not paid he would not attend to this work and the party was thus forced to make the payment. Conviction of the two offenders in a joint trial held on the above accusations was set aside by their Lordships with a direction for retrial of each separately as the act constituting the offence committed by the Sub‑Registrar and that constituting the offence ascribed to the Muharrar were, despite the proximity of time and place as well as the similarity of the alleged offences, separate transactions without the least semblence of nexus either connecting the said two acts or linking the two offenders concerned in any way. The present case before us, in our opinion, is clearly distinguishable. As already indicated in the statement of the case, and as it transpires from the evidence as well, the accusation made by the prosecution is that on being asked by Asiruddin either to take back his wife (daughter of Asiruddin) or to divorce her, Deraj started assaulting him and later in course of that assault ran to the house of his uncle accused Kukra and returned forthwith with 3 sulphis as well as four others viz., Tasir, Kukra, Khaibar and Azi. It appears that even when he had run to fetch arms, the two others on his side, viz. Jahir and Ibrahim, remained on the spot. The accusation further is, as the evidence on record shows, that Deraj had earlier shouted that he would finish the entire family of Asiruddin, and that of those following him while returning with the above‑mentioned weapons, Azi and Khaibar came armed with one lathi each while another viz. Kukra, brought two lathis one of which he handed to Ibrahim on arrival at the spot. It was thereafter, as the accusation goes on, that over the fateful happening in course of the first incident there was as between Misri Molla and Deraj an altercation which climaxed to the latter's thrusting his sulphi right into the chest of the latter and Tasir also fatally piercing Sri Molla: on the chest with a sulphi besides assault upon two others by some members of the accused party. Although Tasir, with a few others, turned up during, and not at or before the commencement of the occurrence, he obviously came as a supporter of Deraj and threw himself into the fight started by Deraj as an active participant. It is true that the persons hit by them, i.e. Misri Molla and Srimolla, were strangers but obviously they intervened and thus stood in the way of Deraj and his party-men carrying out their common purpose of assaulting Asiruddin. Hence the assault, to which they were subjected, was really incidental to the execution of that purpose. Thus it appears to us that all these happenings, i.e., the trampling of the baby to death, the stabbing of Misri Molla by Deraj and the stabbing of Srimolla by Tasir, as alleged, are not isolated acts independent, of one another but a series of inter‑linked incidents connected together not only by proximity of time and unity of place but also by a community of purpose and continuity of action so as to form one and the same transaction. Where; as in this case, two or more persons, being animated by a ‑common purpose, do certain acts constituting different, in the sense of not being the same offences, and there is continuity in their action, the various acts done by them in pursuance of that particular end in view, even though some of them may be merely accessory thereto, i.e., to the end in view, shall be regarded as forming one single transaction. We are unable to subscribe to the proposition that if a third person happens to intercede during the progress of a fight and should one of those coming in to reinforce the aggressors at that stage cause the death of the person so interceding, the happenings occurring prior to the arrival of such reinforcement and those taking place subsequent thereto will form two distinct and independent transactions so as to necessitate two separate trials, one confined to the original participants relating to the said prior happenings, and the other with respect to them and the latter arrivals in connection with the subsequent culpable acts. Thus regard being had to the facts upon which the prosecution founded its accusation, we are led to hold that the different offences ascribed therein to the accused concerned were committed in the course of the same transaction so as to warrant their joint trial within the meaning of section 239 clause (d) of the Code of Criminal Procedure. The contention of Mr. Hye Chowdhury that the present trial is hit by mis-joinder of charges and persons in contravention of sections 233 and 239 is therefore rejected as having no force or substance.

12. We now proceed to consider the conviction of the two condemned prisoners on merit. Though charged along with others under section 30,2 read with section 34 of the Pakistan Penal Code for having, in furtherance of the common intention of all of them, committed murder by intentionally or knowingly causing the deaths of Misri Molla and Srimolla, the prisoners, Deraj and Tasir, have been convicted under section 302, the former for the murder of Misri Molla and the latter for the murder of Srimolla. The rest, as already stated, have been acquitted.

13. As regards the factum of the deaths of the said two persons, i.e., Misri Molla and Sri Molla, resulting from an ante mortem and homicidal injury sustained by each of them in the course of an occurrence on the date and at the time and place, as alleged by the prosecution, that does not appear to have been disputed at the trial in the Court below nor has the same been challenged here before us. And no matter whether challenged or unchallenged, the prosecution has, in our opinion, affirmatively proved the same in a conclusive manner by overwhelming evidence of a dependable and. convincing character. Such evidence is furnished by all the local witnesses, viz., P. W. 1 Asiruddin, P. W. 2, Sukman Bibi. P. W. 4 Sukalu, P. W. 5 Soleman, P. W. 9 Tasir, P. W. 10 Kalim and P. W. 11 Kasir. It transpires from their evidence that Misri died of the injury inflicted upon him then and there on the spot while Srimolla succumbed to the injury sustained by him in course of the same occurrence early at dawn next day. P. W. 6 Dr. Tarapada Das, Medical Officer- in‑charge of a local charitable dispensary examined Srimolla at about 3‑45 p.m. on 7‑2‑60 i.e., less than 2 hours after the occurrence and found one travers incised wound 1 x x1 " situated 4" below the left nipple over the upper part of the stomach. At 3 a.m. in the night following, i.e., on 8‑2‑60, P. W. 15 S. I. Syed Mozammel Huq reached the spot and held on the identification of P. W. 1 Asiruddin inquest on the dead body of Misri Molla (as well as that of the baby) found lying at the place of occurrence. He also recorded the dying declara tion of Srimolla and on his death sometime thereafter held inquest on his dead body as well. Later he forwarded the dead bodies through constable No. 155 P. W. 14 Abdus Salam to the Noagaon morgue and thereon the identification of this constable P. W. 8 Dr. S. Z. Rahim, Medical Officer of the Noagaon Sub‑divisional hospital held the post‑mortem examina tion on the dead bodies in the forenoon on 9‑2‑60.

14. He found on the dead body of Srimolla one stitched wound on the left side of the chest 4 " below the left nipple and 1" away from the mid‑sternal line. On removal of the stitches, one punctured wound 1 " x 1/6th" x chest cavity was detected. On dissection of the chest, conjoint cartileges of the 7th, 8th and 9th ribs were found cut. Peritoneum was found perforated and so also the stomach. The size of the perforation of the stomach was at the anterior surface and " at the posterior surface. Mossentries were injured. Fluid and clotted blood was found in the abdominal cavity. Liver and kidneys were found pale and the stomach empty and perforated. In the opinion of the doctor, the injury was ante‑mortem and homicidal in nature and sufficient, in the ordinary course of nature, to cause death and the death of the deceased was due to the per foration of the stomach.

15. Dead body of Misri Molla revealed one punctured wound with the entrance 1 " x 3/4 " at the site of the left coasto‑sternal junction of the chest. It pierced through the chest cavity towards back with an exit 1" x on the 8th inter‑coastal space 2" left to the mid-spinal line. On dissection of the chest, cartileges of the 4th and 5th ribs were found out. The pericardium, the left auricle and left verticle of the heart were found perforated. The chest cavity contained fluid as well as clotted blood. According to the doctor it was an ante‑mortem and homicidal injury sufficient in the ordinary course of nature to cause death and the death of the deceased was due to the injury of the heart.

16. Thus on a consideration of the evidence on record we have no manner of doubt that both Misri Molla and Srimolla died of the respective ante‑mortem and homicidal injuries inflicted on them in the course of an occurrence on the date and at the time and place, as alleged by the prosecution.

17. As to responsibility for causing the said deaths, the learned Sessions Judge has on an analysis of the evidence on record along with all the other matters before him found that the condemned prisoner Deraj caused the injury to Misri Molla with the intention of causing his death, and that the other con demned prisoner, viz., Tasir, caused the injury to Srimolla, and that he did so deliberately and with the knowledge that such injury was sufficient, in the ordinary course of nature, to cause his death.

18. As already stated, all the local witnesses, actually examined in the case, i.e. P. Ws. 1, 2, 4, 5 and 9‑11, are eye witnesses. Of them P. W. 1 Asiruddin is the central figure, having been the main target of the tragic episode, and has spoken to the details of the occurrence from start to finish. He has stated that at Zohar prayer time on the 24th Magh, 1366 B. S., while he was sitting on the verandah of his east‑facing dwelling hut; Deraj appeared there. He asked the latter either to take back his wife Kamala, i.e. the daughter of the witness, living with him for about 6 months then, or to divorce her as he was unable to maintain her. At this Deraj flew into a fit of rage and picking up a Dao from the verandah started assaulting him with its blunt side. At the same time he went on saying that he would finish the entire family of the witness and immediately put his right foot on his 4 months' old baby daughter, sleeping on the verandah, and thereby killed her on the spot. Thereafter he ran to the house of his uncle Kukra and returned with three sulphis as well as with Tasir, Kukra, Khaibar and Azi following him. Proceeding, the witness has further stated that he himself, his wife (P. W. 2) and his daughter (P. W. 3) had in the meantime raised alarms whereon Misri Molla, Srimolla, Sukalu (P. W. 4) and. Soleman (P. W. 5) came to his house and he reported to them all that had happened. On the other hand, Deraj gave to Tasir and Jahir one each of the three sulphis brought by him and retained the third himself. Misri Molla, having heard about the incident, questioned Deraj as to why he had killed the little baby whereon there was an altercation between them and in the course of that altercation Deraj thrust his sulphi on the chest of Misri Molla whereon the latter with the said instrument struck on his person ran away but fell down after he had proceeded 40/45 cubits only. Deraj followed him and pulling out the sulphi struck therewith P. W. 4 Sukalu who had advanced to the rescue of his brother Misri Molla. There after Tasir struck Srimolla with his sulphi and the latter being thus injured fled towards his house. The witness has also testified to simultaneous assaults upon Sukalu and Soleman (P. Ws. 4 and 5) as well by some of the accused. In his cross- examination Asiruddin has stated that within 6 months before the date of this occurrence Deraj did not visit his house and that on this day he came there of his own accord. He has denied that he demanded divorce of Kamala and told Deraj that he could not go back alive unless he divorced Kamala. It was fur ther suggested to him that Deraj had been sent for, that he had collected Misri Molla, Srimolla, Sukalu, Soleman and other P. Ws. and kept them concealed in order to extort divorce from Deraj, that when Deraj declined, to divorce Kamala, all those people attacked him, that in course of a melee developing thereon Deraj took off a sulphi from those persons and went on defending himself, that in course of the said melee some one trampled down the baby, that the other accused came on hearing the cries of Deraj and that the other accused assaulted none and were falsely implicated but he denied each of these suggestions cate gorically. It also transpires from his evidence in the course of his cross‑examination that accused Jahir and Ibrahim caught hold of him on the verandah indicating that these two accused had come to the place of occurrence earlier than the 'other accused who followed Deraj while returning with weapons. That, it may be noted, is exactly the positive evidence of P. W. 2 Sukman Bibi who has stated that while assaulting her husband with the blunt side of a Dao on the verandah Deraj called out to his uncles Jahir and Ibrahim and that the latter thereon came there. Her evidence in this behalf, no doubt, discloses a slight discrepancy in that according to her Jahir caught hold of her and Ibrahim caught hold of her husband but in our view, this is not at all a material discrepancy. On the other hand the important fact remains that P. W. 2 was not cross‑examined in respect of the above evidence given by her so that the presence of the said two accused from the very first phase of the trouble starting on the verandah appears to be unchallenged. Whatever that may be, so far as the material facts are concerned this witness, i.e. P. W. 2 Sukman Bibi, wife of P. W. 1 Asiruddin, has fully supported her husband and stated inter alia that on Misri Molla's having questioned Deraj as to why he had killed the baby, they had altercation and in course of that altercation Deraj struck Misri Molla with his sulphi. Misri thereon ran with the sulpha struck on his person but fell down after he had covered a short distance. Deraj followed him and pulling out the sulphi struck Sukalu therewith when the latter proceeded to render help to Misri. Thereafter Tasir struck Srimolla with his sulphi whereon the latter ran towards his house. This witness too has spoken also of assaults upon Sukalu and Soleman by some of the accused. Cross‑examination utterly failed to elicit anything detracting from the facts deposed to by her in her examination‑in‑chief. It was sug gested to her that during the incident she herself and her daughter Kamala were both within the hut and did not witness the incident but she has denied the suggestion. P. W. 3, though tendered by the prosecution, was cross‑examined by the defence as to the number of successive husbands she had and the length of time during which she had been living at her father's place. There is, therefore, nothing relevant to our present purpose. P. W. 4 Sukalu, brother of the deceased Misri Molla and' Srimolla, and P. W. 5 Soleman, son of deceased Srimolla, appear to be two other victims of this occurrence. Both of them have corroborated P. Ws. 1, and 2 and supported the prosecution story in all material particulars. The gist of their testimony is that having come to the house of Asiruddin with Misri Molla and Srimolla on hearing row and heard about the incident there, Misri Molla asked Deraj why he had killed the little baby, that Deraj got enraged and struck Misri Molla with his sulphi, that Misri Molla then ran with the sulphi struck on his body but fell down after he had run a distance of 40/45 cubits only and died then and there, and that Deraj followed him there and pulled out the sulphi. Their evidence further is that Tasir thereafter struck Srimolla with sulphi that Srimolla having thus been injured ran towards his house where he succumbed to his injury early next morning. It is also in their evidence that they too were assaulted by some of the accused and were medically examined and attended to in respect of the injuries sustained by them. As to the evidence given by P. W. 4 Sukalu at the trial that Tasir caused the injury to Srimolla, he is contradicted by his evidence before the committing Court where he appears to have stated that Deraj gave the sulphi blow to Srimolla and because of this contradiction, which was rightly considered material by him, the learned Sessions Judge has not relied upon the evidence of this witness in this behalf. As to the place of occurrence, Sukalu has deposed that the assaults upon himself as well as Misri Molla took place to the east of the east‑facing but about 8 cubits off. He was sought to be contradicted in this behalf as well as by his evidence during the preliminary enquiry when he appears to have stated that they were assaulted towards the south of the house of Asiruddin about 40 cubits away but there is really no contradiction at all. In any case it does not appear to be material, and, in our opinion, can make no difference whatever, so far as the main prosecution case is concerned. It may also be noted that in the committing Court the witness gave the direction and distance with reference to the "house" of Asiruddin who had two huts, one on the west Bhiti, and the other on the east Bhiti, and not with reference to the east Bhiti but specifically, as he has done now. As to P. W. 5 Soleman it appears that he was asked in his cross‑examination whether P. W. 3 Kamala Bibi ever lived in their house but the witness denied that as well as the suggestion that they came to the house of Asiruddin as lathials to extort divorce from Deraj. Soleman has stated in the Court of Sessions that there is a mango tree in the eastern part of Asiruddin's house at a distance of 10 cubits from the dwelling huts but his evidence before the committing Court put in under section 145 of the Evidence Act shows that he stated therein that on their arrival they found the accused standing west of the house of Asiruddin under a mango tree at a distance of 40; 45 cubits. Seeing that the occurrence as well as the presence of the accused (ride cross‑examination of P. W. 1 that the other accused went on hearing cries of accused Deraj) is really un disputed, this can have little material bearing. Further, according to the local P. Ws. as well as the investigation officer and also as it transpires from the map drawn by the latter, the mango tree stands to the east of Asiruddin's house and it does not appear to be even suggested that there is any mango tree to the west of that house. In the circumstances we are not prepared to attach any weight to the aforesaid discrepancy or contradiction, which is obviously due to some confusion somewhere. It is true that this witness has stated that the assaults took place under a mango tree but that appears to be fully reconcilable with the prosecution case, as in the evidence of P. Ws. 1 and 2, that, the occurrence took place on the courtyard of Asiruddin. That courtyard appears to extend up to the boundary of accused Kukra's homestead, whereon, according to P. W. 9, the mango tree stands. The expression "under the mango tree" does not necessarily mean "at the foot of the mango tree." Obviously that refers to the entire space covered by its branches and foliage and as such the witness appears to have meant the portion of Asiruddin's courtyard falling under the branches and foliage of the said tree. This view also fits in with the positive evidence of the P. Ws. saying either that the occurrence took place on Asiruddin's courtyard or that it took place in his house, which includes the courtyard as well. Defence too does not appear to have actually challenged that fact. The next witness deposing to the factum of the occurrence is P. W. 9 Tasiruddin. His house is about 50 cubits to the east of that Asiruddin and there is a bamboo clump on the western boundary of his house. The witness has stated that on hearing row he came to the west of the said bamboo clump and noticed Deraj having an altercation with Misri Molla and then striking the latter with a sulphi. Misri Molla thereon ran with the sulphi struck on his person but fell down after he had proceeded about 40 cubits. The witness then ran to his house to bring water for pouring on Misri Molla's head but on return with water found him lying dead and the sulphi was not there on his person. He also noticed Srimolla, Sukalu and Soleman going to their houses injured. The only suggestion put to this witness in order to discredit him was that he was deposing falsely on taking money from the prosecution but he has denied that suggestion. He has, however, candidly admitted that he is a day labourer. The witness has stated in his evidence at the trial that when he came to the house of Asiruddin the accused persons left. In this behalf he was sought to be contradicted by his evidence during the preliminary enquiry to the effect that .the accused were present when he came to the said house. In our opinion there is no contradiction at all nor can it in any view affect the credibility of the witness regarding the main facts. The next witness Kalim Sardar lives about J mile from the place of occurrence but to the south of the houses of the accused and P. W. 1 Asiruddin, he has a plot whereon he had standing sugarcane at the time. According to the witness, on hearing row while on his way to that sugar cane cultivation, he proceeded to the thrashing ground of accused Kukra about 80 cubits to the east of Asiruddin's house and noticed Deraj striking Misri Molla with a sulphi following an altercation between the two. He has also spoken to the sulphi being pulled out by Deraj when Misri Molla had fallen down after running a distance of about 40 cubits with the said instrument struck on his person as well as to assaults upon Sukalu and Soleman by some of the accused. Evidently the witness missed the assault upon Srimolla, which is not at all unnatural. It is also in his evidence that when Sukalu and Soleman were being assaulted he ran away, presumably out of panic and fear. Some questions were put to the witness suggesting that certain statements made by him in Court had not been made to the investigating officer but nothing like that was put to the latter. No question of contradiction therefore, arises at all. It is also interesting to note that no other question was put to the witness to impeach his independence or credit. The last eye witness is P. W. 11 Kasir Mondal, brother of P. W. 9 Tasir Mondal. He has stated that he witnessed the occurrence standing near the aforesaid bamboo‑clump and supported the prosecution case in all material particulars from assault upon Asiruddin on the verandah to the dispersal of the accused after the stabbing of Srimolla. Thus his evidence inter alia is that Deraj injured Misri Molla with his sulphi and later pulled out the sulphi when the latter had fallen down after running about 40 cubits with the said weapon struck on his person. He has also spoken to assaults upon Sukalu and Soleman by some of the accused as well as to the stabbing of Srimolla by Tasir. It appears that this witness did not state to the investigating officer, as he has done at the trial, that Deraj altercated with Asir and assaulted him with the blunt side of a dao or that he fetched Sulphis from the house of his uncle, but in our opinion, this is a mere omission and not a contradiction and cannot falsify the witness or render his evidence reasonably doubtful. Again according to this witness, as stated by him in his cross‑examination before the trial Court, he witnessed the incident standing near his bamboo‑clump and his brother P. W. Tasir also was there but he appears to have stated in his evidence during the preliminary enquiry put in under section 145 of the Evidence Act that he was alone near the bamboo‑clump and that Tasir was in the field at the time of occurrence, ploughing land. This is undoubtedly a contradiction and regard being had to the same we prefer on consideration of safety not to rely upon the evidence of this witness testifying to the presence of his brother near the bamboo‑clump or take it as corroborative of the evidence given by the latter to that effect. This, however, does not imply that we disbelieve or doubt the evidence of the latter, i.e., P. W. 9 Tasir, on this point. As a matter of fact we find absolutely no reason to take such a view. On the other hand, on a careful consideration of the evidence of the said witness in the light of the circumstances and probabilities, disclosed, we are strongly inclined to regard him as a witness of truth, and accept his testimony that he actually witnessed the occurrence from near the bamboo‑clump in question, as claimed by him.

19. In addition to the evidence of the P. Ws. summarised above, there is also the dying declaration (Exh. 3) of Srimolla running thus: ‑ "Tasir Mondal has thrust sulphi on me, Deraj Mondal has assaulted my brother Misri Molla and Jahir Mondal has assault ed my son." This dying declaration was no doubt recorded by the investigating officer himself but it is important to bear in mind that this appears to have been done after 3 a.m. i.e., shortly before Srimolla's death at 6 a.m. when his condition was precarious and it was hardly possible to secure any other officer or person for the purpose. The investigating officer has stated that he recorded the statement verbatim and also obtained the signature [Exh. 3 (1)] of its maker, i.e. Srimolla, thereto in presence of witnesses who attested the same. We find no reason to disbelieve him. If the investigating officer had been actuated by a mala fide motive or had the intention of fabricating a dying declaration, it is hardly likely that he would have kept it confined to three of the accused only instead of having roped in the seven, named in the first information report and also actually charge‑sheeted by him. We are thus led to accept the dying declaration Exh. 3 as an untainted document, faithfully reproducing the statement, as made by the man on his death‑bed. * * * (Further discussion on evidence omitted)

20. It appears that it was mooted before the trial Court on behalf of Deraj that his case was covered by Exception 4 to the aforesaid section but the learned Judge rejected the contention as being untenable. We also fail to find anything on the record to induce us to take a different view. It transpires from the evidence on record that Misri Molla with Srimolla, Sukalu and Soleman came as mere third persons, absolutely unarmed on being attracted by row and alarms and having heard about the incident there questioned Deraj, as was only too natural for a third person, as to why he had killed the little baby and that in course of an altercation ensuing thereon Deraj caused the injury to Misri Molla with his sulphi. The learned Sessions Judge appears to have taken the view and we should think rightly that even if the altercation were taken to be a quarrel, there could be no escape from the fact that the assailant took undue advantage in inflicting the injury as he did. Further even though there was an altercation or quarrel, there was no fight at all. There is nothing to show that Misri Molla, far from assaulting or trying to assault Deraj, even threatened to attack him or any one belonging to his party. The application of the above‑mentioned Exception, thus appears to be irrefutably ruled out.

21. Mr. Hye Chowdhury, however, tried before us to invoke the benefit of Exception I and argued that the very nature of the outrage committed by Deraj indicates that he must have acted under grave and sudden provocation, completely depriving him of the power of self‑control. This argument is unrelated to facts and appears to us to require the Court to imagine a set of circumstances, which were not shown either to exist or even to be reasonably probable. All that we have in evidence is that there was an altercation but the factum of a mere altercation, we B are afraid, cannot suffice to bring the said exception into operation. To that end it is necessary to show the exact nature of the altercation, i.e. the offending epithets and expressions or acts in order to make out its sufficiency for the purpose of affording the protection of provocation, as contemplated by the relevant provision, i.e., Exception 1 to section

300. It is well settled that in order to entitle one to the protective benefit of this exception it has "to be distinctly shown not only that the act was done under the influence of some feeling which too' away from the person doing it all control over his action but that (that) feeling had an adequate cause". From the mere fact that the assault was preceded by an altercation it cannot be taken as established or presumed that Deraj had or even might have had some cause for provocation or that the cause, if any, was adequate. On the evidence on record it rather appears that the attack was not made under any sudden and grave provocation. We cannot, therefore, pursuade ourselves to accept the contention urged by Mr. Hye Chowdhury in this behalf.

22. It, however, appears from the evidence that as soon as P. W. 1 Asir demanded divorce of his daughter (wife of accused Deraj) from the accused Deraj, he flew into rage and began assaulting him (Asir) with the blunt side of a dao picked up from the verandah of Asir, where it was lying.

23. The finding of the Court below is that the baby was trampled to death while asleep on the verandah during the struggle the accused Deraj had with Asir and it might be that both or either of them trampled her to death.

24. The blood of accused Deraj was thus heated and in that moment of excitement, he ran back to his house (the house of his uncle Kukra, Tasir, Khaibar and Asir where he was living) uttering a warning that he would finish the entire family of Asir and he came back with 3 sulphis as well as with the accused Tasir and acquitted accused Kukra, Khaibar and Azi following him. He gave to Tasir and Zahir one each of the 3 sulphis and retained the third himself. In the meantime deceased Misri Molla followed by his brother deceased Sri Molla and P. Ws. 4 and 5 came up and Misri Molla challenged the accused Deraj as to why he had killed the baby. This challenge or in tervention led an altercation or quarrel between Deraj and Misri Molla, in course of which Deraj dealt the fatal blow to Misri Molla and the accused Tasir dealt the fatal blow to Sri Molla and their acts, it appears, were done in a moment of great excitement and not with any premeditated intention to kill the deceased.

25. Although the entire occurrence, specially the dealing of fatal blows to Misri Molla and Sri Molla, were preceded by an altercation or quarrel, such an altercation cannot be said to have given rise to any sudden and grave provocation so as to bring the offences committed by there within the ambit of 1 exception 4 to section 300 of the Pakistan Penal Code. But such altercation and excitement caused thereby, may, in our opinion, be taken as extenuating circumstances in the matter of sentences to be awarded.

26. It remains only to consider if the protection afforded by the right of private defence of person may be available to the condemned prisoners or either of them, particularly Deraj. We have already examined the statement male by Deraj under section 342 of the Code of Criminal Procedure as well as the suggestions put to P. W. 1 Asiruddin in that 'line and found that Misri Molla, Sri Molla, Sukalu and Soleman had not been there during the first phase of the episode. We have also affirmed as dependable the evidence of the eye‑witnesses who have stated that they came unarmed on hearing row and alarm after Asiruddin had been assaulted and his baby killed. That they came unarmed and were not aggressors or assailants is also shown by the fact of the one sided casualities, as disclosed in evidence. We have it from the local P. Ws. as corroborated by the doctors concerned (P. Ws. 6 and 7), that besides the fatal injuries inflicted on Misri Molla and Srimolla, Sukalu received two injuries, one incised and one lacerated, and Sofenian sustained one, incised wound of a serious nature, the incised injury in each case and also the injuries on both th;: said deceased having, according to the medical evidence furnished by the doctors (P. W5. 6 & 8), had been caused by some sharp‑cutting weapon such as sulphi. On the other side the only person, who is said to have sustained an injury was Deraj, and that single injury, too, was, as we have from the doctor P. W. 7, nothing more than an abrasion on the back over the scapula. The learned Sessions Judge has observed that an injury of this nature can also be caused by a friendly hand. In any case we are satisfied on the evidence before us that it was Deraj who was the aggressors and started the assaults upon the Mollas taking the lead himself by injuring Misri Molla. So even if the said abrasion was caused thereafter by any of the latter, i.e., the Mollas, that would not give rise to the right of private defence of person in favour of Deraj or Tasir in respect of the culpable acts, they have been found guilty of.

27. From tire discu4sions and findings above, it follows that Deraj commuted the offence of murder by intentionally causing the death of Misri Molla, and Tasir, too, committed the same offence by intentionally or at any rate knowingly causing the death of Srimolla. They have, therefore, been rightly found guilty and convicted cinder section 302 of the Penal Code.

28. Coming now to the question of sentence, we have already indicated the circumstances under which the offences were committed by both the accused. Regard being had to these extenuating circumstances, we feel that the extreme penalty of law is not called for in this case and the lesser sentence of transportation for life would meet the ends of justice.

29. We, therefore, dismiss the appeal and affirm the con viction of both the appellants under section 302 of the Pakistan Penal Code. We reject the Reference and commute the sentences of death imposed upon them to transportation for life in each case. KHAN, J.‑I agree. K. B. A. Appeal dismissed.