P (PLP)

MUHAMMAD JAN, J.‑--Col. Ata Ullah, A. D. M. S., 7th Divi sion Rawalpindi, resides in Bungalow No. 292, Peshawar Road, Rawalpindi. In June last year Abdullah Butt, an uncle of Col. Ata Ullah's wife, came to stay with him at Rawalpindi. He brought with him his wife Mst. Amtul Haye, his daughter Mst. Tanwir Begum, aged about 18 years, and a young man named Nasir‑ud‑Din who is also aged about 18 years. Abdullah Butt was a Professor in the Muslim University at Aligarh and had probably come to West Punjab owing to the partition of the country. Nasir‑ud‑Din had taken his BSc. Degree at the last University Examination and Mst. Tanwir Begum was a College student in the 4th year class. These two were engaged to be married and they all lived as guests in the house of Col. Ata Ullah. On the 15th of July 1948 Col. Ata Ullah went to Murree on inspection tour and returned home at about 8. p m. He found Abdullah Butt in the courtyard at the back of his house preparing to break his fast: Col. Ata Ullah had something to eat with him ‑and then went into his own room. He was reading his newspapers at about 9 p. m. when he heard an outcry in the count-yard. On going out he found Abdullah Butt lying on the ground drenched in blood and the members of his family crying and saying that Nasir ud‑Din had stabbed Abdullah Butt with knife. Col. Ata Ullah telephoned for an ambulance to remove Abdullah Butt to the hospital but he died within half an hour after being injured. Col. Ata Ullah also telephoned to the police. Sub‑inspector Amir Sheikh was doing patrol duty on Peshawar Road. At about 10‑55 p. m. he received information about the crime and went to Bungalow No 292, Peshawar Road. Col. Ata Ullah gave him a written statement at 11 p. m. marked Ex. P. A. which forms the first information report in this case. The Sub‑Inspector found Abdullah Butt lying dead and prepared his inquest report. He also found Mst. Amtul Haye, Mst. Tanwir Begum and Walayat Khan, a servant of Col. At Ullah, injured and prepared their injury state ments. He then arrested Nasir‑ud‑Din. He was also injured and his injury statement was also prepared by the Sub‑Inspector. At about 20' o clock in the morning a knife was recovered from the hedges close to the scene of the crime, at the pointing out of Nasir‑ud‑Din. The ashes of some burnt clothes were pointed out to the police by Jalal Din, a servant of Nasir‑ud‑Din was arrested on the 16th July 1948. The knife Ex. P 1. and a pyjama said to belong to Nasir‑ud‑Din Ex. P. 3 were sent to the Chemical Examiner but no blood was found on them. After the usual investigation Nasir‑ud‑Din and Jalal Din were put on trial. They were tried together by the learned Sessions Judge, Rawalpindi. Nasir‑ud‑Din was tried for intentionally causing the death of Abdullah Butt and Jalal Din for causing evidence of the commis sion of that offence to disappear with the intention of screening of the offender from legal punishment. Nasir ud‑Din was convicted under section 302 Indian Penal Code and sentenced to death. Jalal Din was convicted under section 201, Indian Penal Code and sentenced to four years' rigorous imprisonment They have filed a joint appeal and the sentence of death passed against Nasir‑ud- Din has been referred by the Sessions judge for confirmation under section 374, Criminal Procedure Code. Major Abdullah, Civil Surgeon, Rawalpindi (P. W. 8) performed the post‑mortem examination on the body of Abdullah Butt, aged about 50 years on the 16th July 1948. He found an incised wound 8" x 2 " going into the abdominal cavity about 4V above the umbilicus and running to the left in transverse line. His shirt had a corresponding cut. The 5th and the 6th costal cartilages on the left side were cut. Pleural cavity contained 20 ounces of blood. The pericardial cavity contained 12 ounces of blood and the left ventricle was cut to the extent of 2" x 1" x 2". The peritoneal cavity contained about 30 ounces of blood. The liver was also cut to the extent of 2" x 1" x 2". Death in the opinion of the doctor was due to shock and haemorrhage as a result of injuries to the liver and the heart under the external injury described above. Only one external injury had been inflicted. Dr. Qamar‑ul‑Islam (P. W. 2) examined Mst. Amtul Haye, Mst. Tanwir Begum, Walayat Khan and Nasir‑ud‑Din on the 16th of July. Mst. Amtul Haye had an incised wound on the palm of her left hand 2" x ". Mst. Tanwir Begum had an incised wound on her back 1 " x 1/10" x 1/10" and another incised wound 1 " x 1/6" x " on the lower part of her left leg. Walayat Khan, had an incised wound " x 1/10" x 1/8" on his right thumb and a superficial cut " long at the base of the right ring finger. Nasir‑ud‑Din accused had the following 8 injuries:‑

1. Contusion 1/3" x 1/3" on the left side of the upper lip.

2. Contusion 1/3" x " on the right side of the lower lip.

3. Contusion " x " above the left elbow.

4. Swelling 3" x 2" on the upper part of the left forearm.

5. Contusion 1" x 1/6" on the lower part of the left forearm.

6. Contusion " x 1/6" on the right elbow.

7. Contusion 1" x " above the right wrist.

8. Contusion 1/3" x " on the external upper part of the left leg. Zafar Hussain Draftsman (P.W.3), Alla Ditta. Foot Constable (P.W.4), Abdul Manan, nephew of the deceased (P. W. 5), Muhammad Nawaz (P. W. 6) and Amir Sheikh, Sub‑Inspector, 1P. W. 13) are formal witnesses and their evidence need not be discussed. The material witnesses in the case are Masood Ahmad, nephew of Col. Ata Ullah. Col, Ata Ullah himself, Mst. Tanwir Begum, Mst. Amtul Haye and Walayat Khan, servant of Col. Ata Ullah. Masood Ahmad, a 16 year old student of Sind Muslim College, Karachi, (P. W, 1) said that he had come to spend his vacation with his uncle Ata Ullah at Rawalpindi. On the 15th July 1948, at about 9 p. m., he was in the courtyard of the house. Mst. Amtul Haye was not well and was lying on a bed. Masood and Tanwir Begum were pressing her legs. Abdullah Butt was sitting on his own charpoy close by. Nasir‑ud‑Din came out of the house into the courtyard and accused Masood Ahmad of backbiting and making complaints against him. Abdullah Butt told Nasir‑ud‑Din to go away but he refused to do so. Abdullah Butt then rose from his charpoy and Nasir‑ud‑Din assaulted him and struck him a blow with a knife in the abdomen. He and Mst. Amtul Haye had tried to intervene but Nasir‑ud‑Din had thrown him off and struck Mst. Amtul Haye on the hand with his knife. Mst. Tanwir Begum was screaming for help. The accused threw her down too and struck her with the knife on the leg near the foot as she was kicking. On being struck on the leg, Mst. Tanwir Begum rolled over and was struck with the knife on the flank. About this time Walayat Khan, servant, came running from the pantry and caught the accuse from behind putting his own arms round the arms of the accused. The accused struggled to release himself and caused a slight injury with his knife on the hand of Walayat Khan. As the accused was tightly held by Walayat Khan he could not release himself and wiping the knife with his shirt threw it over a hedge some seven paces away. Then Col. Ata Ullah and some other servants came into the courtyard and the police was sent for. The witness pointed out to the police the place where the knife was thrown but it could not he found until 2. 30 a. m. when the accused pointed it out himself. In cross‑examination the witness stated that he had never made any complaint against the accused to Professor Abdullah Butt. Nor did he have any cause of complaint against him. He said he had no knowledge that Nasir‑ud‑Din was engaged to Mst. Tanwir Begum and denied the suggestion that the accused had objected to his sitting on the same bed as Mst. Tanwir Begum and that that had led to the whole trouble. He said that he observed nothing in the demeanour of the deceased from which he could say that the deceased had got up angrily from his bed when talking to the accused. He was confronted with his statement to the police, Ex. D. A. that the Professor got up from his bed in anger. He said that he did not remember making that statement, but admitted that the first thing which he noticed when he looked towards the deceased was that he and the accused were grappling with each other. He was unable to say from where the accused bad got the knife. When he looked at the deceased again the accused was stabbing him. He said the deceased had two sons, one about 16 years old and the other about 10 or 11 years old. The elder was at Lahore and the younger in the house at the time of the occur rence. He did not deny the suggestion that some fruit had been taken at the time of the iftari dinner and that some fruit peels were lying in the courtyard; the implication being that the knife which had been used for peeling the fruit was picked up by the assailant from a tea‑pot in the courtyard. He merely said that he could not remember if there were any peels lying about. Jalal Din appellant, the witness said was not in the courtyard when the deceased was stabbed. He came afterwards. He said that after seeing the crime he rushed into the house to inform Col. Ata Ullah and merely told him "blood, blood". He did not say who was responsible for the bloodshed, or how it had occurred. It may be noticed here that Col. Ata Ullah has stated that he had suddenly heard an outcry from the compound of his house and rushed out. In the corridor he met some children who were shouting that Nasir bhai had stabbed Papa Jan. The witness added that the police arrived at about 10 p. m. and he told them that the accused had thrown the knife towards the hedges. The police looked for it but could not find it at that time. The recovery memo relating to the knife shows that it was found at 2‑30 a. m. on the 16th July 1948. The time given in the translation of Ex. P. O and printed in the paper book is 2 p. m. but in the original it is given as 2 bajerat which would mean 2‑20 a. m. It is not clear from the evidence of the witnesses whether the knife was recovered at night or during the day. The statement of Nasir‑ud‑Din appellant in the trial Court is that on the evening of the occurrence he came out of the Bungalow and saw Masood (P. W.) seated with lust. Tanwir Begum on the charpoy on which Mst. Amtul Haye was lying. He objected to Masood's sitting with 141st. Tanwir Begum on the same bed and told him get up from there. Professor Abdullah Butt, who was lying on another charpoy became annoyed over this and got up from his bed. He advanced towards Nasir‑ud‑Din. Nasir‑ud‑Din stepped back; but the Professor came forward and slapped him and then picking up a danda struck Nasir‑ud‑Din with it. Jalal Din, servant of Nasir‑ud‑Din, and some others arrived on hearing the commotion, Jalal Din picked up a knife, other than Ex. P 1. and stabbed the deceased. Jalal Din supported this statement and said that be had stabbed the deceased. This version of the accused was put to Masood Ahmad and he, of course, denied it. The statement that it was Jalal Din who stabbed the deceased may be disposed of at once because, in my opinion, it is wholly incorrect. The learned Sessions judge has considered it as an act of gallantry on the part of Jalal Din to try to save his master Nasir‑ud‑Din by taking the blame on himself. It was a very poor act of gallantry, if gallantry, it can be called. Jalal Din ran no risk of being convicted on this statement when the evidence of all the eyewitnesses was that the Professor was killed by Nasir‑ud‑Din. There is no evidence in support‑ of this statement and, to my mind, it is conclusively disproved by the letter written by Nasir‑ud‑Din himself to 61st. Ata Ullah from the jail on 19th July 1948. He wrote that what had to happen had happened. He should be excused and he was prepared to pay the expenses for the education of Bhai Akhtar Tahir. He would pay any amount even if it be a sum of thousands. He begged of Mst. Ata Ullah to go and see him in jail. There is not a word of regret or anger or annoyance in this letter for anything done by Jalal. Din. On the contrary the prayer of Nasir‑ud‑Din is that he may be excused for what had happened and he undertakes to pay anything for it. The letter was admitted by Nasir‑ud‑Din to have been written by him and the only question to be considered is whether, apart from the very clearly implied admission of guilt contained in this letter, there is other reliable evidence to show that the death of Abdullah Butt was caused by Nasir‑ud‑Din. The evidence of Masood Ahmad is quite definite as regards the person who stabbed the deceased, though he has tried to minimize the part played by him in this tragedy. It is corroborated by Col. Ata Ullah who heard every one present in the house saying that Nasir‑ud‑Din had killed the deceased. Besides this there is the evidence of Mst. Amtul Haye the widow and Mst. Tanwir Begum the daughter of the deceased whom I can see no reason to doubt, so far as their evidence relates to the indentity of the assailant. Mst. Amtul Haye has deposed that she was ill and was lying on a bed. Her daughter Mst. Tanwir Begum and Col. Ata Ullah's nephew Masood Ahmad were pressing her feet. Her husband had come after saying his evening prayers and was lying on another bed close to her. Nasir‑ud‑Din, accused, came out of the house into the courtyard and addressing Masood said "you are complaining against me". On this her husband said that Masood had made no complaints about Nasir‑ud‑Din and ordered him to go back into the house. This annoyed the accused who said something rude. Her husband got up and sat on his charpoy. Nasir‑ud‑Din advanced towards her husband who stood up and then they grappled with each other. While grappling, the accused and her husband moved a little further away from the cots. Then she got up and went where they were grappling. She and Masood tried to separate them. She succeeded in doing so. At this time the accused took out a knife but she was unable to say from where he took it. Before she could intervene again to stop the accused lie struck the knife into the abdomen of her husband who staggered and fell down. She herself was injured with a knife on her left hand but she could not say when and how as she was too excited at the time. The servants arrived on the scene but she could not tell which .one of them went towards the accused. "Perhaps Walaiti or Probably Thavarya did so". Mst. Tanwir Begum was also present but the witness was in a confused state of mind and could not say what happened to her. Her husband was lifted from the ground and put on a cot. She did not know what happened to the accused after that. She said that the accused was a pupil of her husband. He was a student in Aligarh University College and was engaged to be married to her daughter. When they came to Rawalpindi the accused came with them and wished to be married soon. She told him that she would marry her daughter to him after he had found some employment. The accused had applied for a commission in the Air Force but had‑not yet been selected. She and her husband treated the accused with affection and like a son. Her husband was a fairly tall and strong man. The accused was wearing a malmal shirt at the time of the occurrence and she did not see any knife in his hand when the quarrel started and was unable to say how he came to possess the knife. When Col. Ata Ullah came into the courtyard she and others told him that the accused (Nasir‑ud -Din) had stabbed the deceased. The only part of her evidence with which I do not feel satisfied is that which relates to the cause of the fight between her husband and the accused. If Nasir‑ud‑Din had accused Masood Ahmad of complaining against him and Professor Abdullah Butt had assured him that Masood Abroad had made no complaints, that should have been the end of the matter. There would then have been no occasion for Nasir‑ud‑Din to be annoyed or to say anything rude. I feel convinced that the witnesses are not speaking the truth regarding the origin of the fight and the' version of Nasir‑ud‑Din that he objected to Masood sitting on the same bed as Mst. Tanwir‑ Begum, to whom Nasir‑ud‑Din was betrothed, and that ]Professor Abdullah Butt was offended by what was said by Nasir‑ud‑Din and that led to the quarrel and the fight, appears much more probable to me than the story related by the prosecution witnesses. The evidence of Mst. Tanwir Begum also suffers from the same defect as the evidence of her mother and Masood Ahmad. She too, has given a wrong account of how the quarrel commenced and developed into a fight. She said that she was sitting on the same charpoy as Masood Ahmad when Nasir‑ud‑Din came and asked Masood Ahmad what complaints he was making against him. Her father said that Masood was making no complaints and Nasir‑ud‑Din should go away. Nasir‑ud‑Din refused to go and advanced towards her father's charpoy. Her father got up arid the accused grappled with him. Her mother caught hold of her father and tried to pull him back while Masood caught hold of Nasir‑ud‑Din and tried to keep him away. Nasir‑ud‑Din pushed Masood aside and attacked her father. She cried and went towards the bungalow to call for help but had hardly gone two paces when she, heard a shriek and on‑turnip‑g round saw her father lying injured and Nasir‑ud‑Din standing near him with a knife in his hand. His clothes were stained with blood. He, then turned towards her. She run to the bungalow but fell down in front of the bathroom. Nasir‑ud‑Din tried to stab her also but she kept him away by kicking towards him. Nasir‑ud‑Din caught hold of one of her legs and struck it with a knife. Then Walayat, servant, seized the accused and tried to pull him away. She saw a danda in the hand of somebody but could not say in whose hand. She got up and saw that some of the People who had collected were beating the accused with a dander. She then went inside the house and did not know what happened afterwards. In cross -examination, she said that when Nasir‑ud‑Din accused came into the courtyard she started getting up from the charpoy as she did not consider it proper to keep sitting on the bed with a grown up young man. She, however, denied that Nasir‑ud‑Din had objected to Masood's sitting on the bed with her and that he had asked Masood to get up from there. She said that she had told the police that when Nasir‑ud‑Din came he asked Masood what com plaints he was making against Nasir‑ud‑Din and her father told Nasir‑ud‑Din that Masood had made no complaints. The relevant portion of her statement in Ex. D. B. which was put to her is as follows. "We were all talking when Nasir‑ud‑Din came from the interior of the bungalow. My father told Nasir‑ud‑Din to go away. He refused". This statement to the police is more com prehensible than the statement in Court. Nasir‑ud‑Din saw his fianc e sitting on a bed with another man and objected: His prospective father‑in‑law, instead of telling his daughter to go away when Masood Ahmad had sat down on the bed with her, told Nasir‑ud‑Din to go away and let Mst. Tanwir Begum and Masood Ahmad remain as they were. In these circumstances Nasir‑ud‑Din might well have said something rude. But assuming that Nasir‑ud‑Din had asked Masood Ahmad what complaints he was making or, as recorded in Urdu, why he was back-biting Nasir‑ud‑Din, there is no reason to imagine that Nasir‑ud‑Din meant that Masood Ahmad was complaining against him to Professor Abdullah Butt only. He might have meant and believed that Masood Ahmad was backbiting him and making complaints against him to Mst. Tanwir Begum also and thus poisoning mind against him. And this for aught we know, might have been True. Mst. Tanwir Begum admitted that she had not told the Police that any servant had beaten the accused with a danda. She said she was too confused to notice any danda at the time of occurrence. Yet, in Court she swore that she had seen some of the people collected beating the accused with a danda. In their statements to the Police none of the eye‑witnesses alleged that Nasir‑ud‑Din accused was beaten with a danda by any one. The statement to that effect became necessary in Court In order to explain the injuries of the accused and for this reason Walayat, a servant was put up to say that he had beaten the accused. Walayat stated that on hearing an outcry he came into courtyard and saw the accused inflicting an injury with a knife on the foot of Mst. Tanwir Begum who was lying on the ground. He seized the accused by the hand in which he was holding the knife and pulled him away. The accused tried to release himself and said that he wanted to finish Tanwir. Walayat did not release him and received a small cut on his finger during the struggle. He then picked up a danda and gave the accused two or three blows with it. After this the accused wiped the knife with his shirt and threw it away towards the hedges. The accused then called his servant Jalal Din and told him to burn the accused s shirt and under‑wear. After a while the accused went into a bathroom and washed his blood‑stained pyjama He had by this time changed his clothes. Walayat took away the pyjama from the accused and took him towards that part of the compound where the accused used to sleep. At this time they saw Mst. Tanwir Begum being taken into the house by some children. On seeing her the accused remarked that he had failed to kill the person whom he wished to kill and had killed the man whom he did not want to kill. It will be remembered that according to Mst. Tanwir Begum's statement she had gone into the house long before Jalal Din had been called and ordered by the accused to burn his clothes. But even if the statement alleged by Walayat to have been made by Nasir‑ud‑Din be accepted as correct, it supports the version of the accused that Mst Tanwir Begum had given him such cause for jealousy that he wished to take away her life. Accordingly to the prosecution he was in no way annoyed with Mst. Tanwir Begum. He only suspected that Masood Ahmad was backbiting or making complaints against him. The Professor, according to the prosecution, was very kind and affectionate to the accused and had very politely told him "Son, go away". Then why did Nasir‑ud‑Din merely push Masood Ahmad aside when he was armed with a knife and, instead of killing him or Tanwir Begum, killed the man whom he had no reason to kill. It is also very strange that the accused who was so ill‑tempered as to stab his father‑in‑law merely being told to go away so completely changed his nature that he took the beating with a danda from a menial, without making the slightest effort to defend himself or to strike the menial with the knife which was still in his hand. Walayat was con fronted with his statement to the Police Ex. D. D. He had not stated there that he had struck the accused with a danda. Nor had he shown any danda to the Police during investigation. I am convinced that Walayat is a false witness and his evidence that he gave two or three blows with a danda to the accused is untrue. But even if that statement be accepted, for the sake of argument, there are five more injuries on the person of the accused which remain to be explained. Who caused them, is not explained by the prosecution. Nasir‑ud‑Din appellant, says Abdullah Butt caused them all. There is no reason to disbelieve the statement of Nasir‑ud‑Din, especially when it is corroborated by medical evidence. I believe that Nasir‑ud‑Din, on finding that his objection to Mst. Tanwir Begum's sitting on one bed with Masood Ahmad was not appreciated by his father‑in‑law‑to‑be, said something very cutting to the Professor who lost his‑temper and struck the accused. In this fight the accused, unfortunately, lost his head and stabbed the deceased. It was conceded, and in my opinion quite correctly conceded, by the learned Assistant Advocate‑General that the accused had not come into the courtyard with the intention of killing any one. There is no evidence that he had come out with a knife and no one knows where he got it from. The fact that no trace of blood was found on the blade or even in the crevices of the handle of the knife, though it had not been washed, makes it very doubtful that the knife Ex. P. 1 is the weapon of offence. But since I have found that the deceased was stabbed with a knife, it becomes immaterial whether he was stabbed with this knife or another. The real question is what were the circumstances in which the offence was committed. There can be no two opinions that a quarrel had suddenly arisen between Professor Abdullah Butt and the accused. This too, is conceded by the prosecution and is clearly established by the evidence of all the eye‑witnesses in the case. They have, without exception, added that immediately after the verbal quarrel the accused and the deceased grappled with each other and then they accused struck the deceased with the knife. In my opinion the offence committed by Nasir‑ud‑Din does not amount to murder. By virtue of Exception 4 to section 300 Indian Penal Code, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. The Explanation to this Exception says that it is immaterial in such cases which party offers the provocation or commits the first assault. It was urged by the learned Assistant Advocate‑General that according to the prosecution evidence, it was the accused who had first advanced towards the deceased. This is wholly immaterial if the conditions laid down in the Exception are satisfied. It was also urged on behalf of the prosecution that though the sudden quarrel cannot be denied there was no sudden fight in this case. That the accused and the deceased grappled with each other is not denied. The question is whether grappling" with each other suddenly can or cannot be called a sudden "fight". In my opinion, a fight need not be with any weapons. A "hand to hand fight" is a well known term and there is no reason for supposing that in such a fight the parties must be armed. People can break each others jaws, teeth and other bones with bare hands There fore, if two pet sons, grapple with each other they can be said to fight. In Hansraj Singh v. Emperor (A I R 1946 Lah. 41) Sharif, J., expressed the view that in order to constitute a fight it is not necessary that the parties to the fight should exchange blows. The learned Assistant Advocate‑General has cited Sunnu Muduli v. King Emperor (I L R 35 for the proposition that a mere verbal quarrel preceding a stab with a knife would not ordinarily be covered by Exception

4. This case is not in point because there has undoubtedly been grappling in this case and no authority has been cited to show that grappling does not amount to a fight. In Odhams Dictionary of the English Language grappling is defined as "a fight at close quarters". In the Oxford English Dictionary to grapple means "to contend in lose light". It was finally urged by the learned Assistant a Advocate‑General that Nasir‑ud‑Din had taken undue advantage and had acted in a cruel and unusual manner in inflicting an injury with a knife on Professor Abdullah Butt who was unarmed. The accused struck only one blow and if he had not done that the question whether Exception 4 did or did not apply would not have arisen, because there would have been no culpable homicide. In Mohon Narayan v. Emperor (I L R 1946 All. 19) something was said in the course of a conversation which led to a sudden quarrel and that led to a sudden fight. In the course of this fight the accused in the heat of passion, took out a knife which happened to be with him and struck the deceased with it. The blow cut the liver of the deceased and brought about his death. It was held that the accused had not talon any undue advantage or acted in a cruel or, unusual manner. It was further held that a fight contemplated by Excep tion 4 need not necessarily be with weapons. In Walli v Emperor A I R 1933 Lah. page 666) there was evidence to show that there had been constant disputes between the prisoner and father. The father owned some land which the prisoner wanted him to partition but he refused to do so. On the evening of the occur rence the father was sitting down having a smoke when the son inflicted several injuries on him, including a fracture of the skull which resulted in his death. The son confessed that he had struck his father on the head, back, face and ribs and there was no doubt that these injuries had resulted in his death. In appeal, counsel for the appellant admitted that on the evening in question there was a quarrel between the father and the son and the son had struck the father with a lathi. It was, however, contended that the circumstances of the case, including the relationship he between the parties, pointed to the conclusion that there was no Intention to cause death or such bodily injury as was likely to cause death. This contention was rejected by Shadi Lal, C. J. He observed that there appeared to have been a quarrel between the father and the son, that the son had suddenly got enraged and lick the father in the heat of passion and caused him three or four injuries. The learned Chief Justice concluded that there was no ground for attributing to the assailant the intention contemplated by section 304, Part I, Indian Penal Code and altered the conviction from section 302 to one under section 30 4 Part II, Indian Penal Code. Monroe, J, agreed. With all respect I am unable to understand, ;otter rejecting the contention of the counsel for the appellant that there was no intention to cause death or such bodily injury as was likely to cause death, the learned judges came to the conclusion that there was no reason for attributing to the assailant the intention contemplated by section 304 Part I, Indian Penal Code. Part I of section 304 reads as follows:‑ "Whoever commits culpable homicide not amounting to murder shall be punished with transportation for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine if the act by which the death is caused is done with the inten tion of causing death or of causing such bodily injury as is likely to cause death." The submission of the defence counsel that such intention did not exist was rejected and then it was held that it did not exist. Mere relationship of father and son cannot exclude the possibility of such intention and held that Nasir‑ud‑Din appellant, when stabbing Abdullah Butt in the abdomen, had the intention of causing death or such bodily injury as was likely to cause death. But, because he did so in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner his case is covered by Exception 4 to section 300 and is punishable under section 304 Part I, Indian Penal Code. I would, therefore, set aside his conviction under section

302. Indian Penal Code and the sentence of death awarded to him. The only question that remains is what would be the appropriate sentence in this case. Nasir‑ud‑Din appellant is a youth of 18 years. He is a Pathan and impulsive. He appeared to be jealous of Masood Ahmad and resented his sitting on the same bed with his wife‑to‑be. His feelings were not respected by the father who, instead of showing any sympathy or understanding, ordered him to go away. On his refusing to do so Abdullah Butt angrily got up from his bed, presumably to strike the appellant, and grappled with him. According to the appellant, Abdullah Butt struck him several blows and the medical evidence corroborates this statement. Nasir‑ud‑Din then stabbed Abdullah Butt in the abdomen and killed him on the spot. Nasir‑ud‑Din is a well bred, educated young man and should have had better control over his passions. He behaved like a mad man and heaped misery upon a family which wished him well. He was, however, repentant and in his letter to Mrs. Ata Ullah offered to make amends for his crime. He is well‑to‑do and expressed willingness to pay compensation even if it amounted to thousands of rupees. He had a promising future which he has ruined by this crime. Taking both aspects of the case into consideration I would sentence the appellant Nasir‑ud‑Din to four years' rigorous imprisonment and Rs. 10,000 fine to be paid as compensation to Mst. Amtul Haye under section 545, Criminal Procedure Code. She has lost her bread‑winner and has children to rear and educate. If the fine is net paid or realised within six months, the appellant shall undergo a further term of 2f years' rigorous imprisonment. To this extent the appeal of Nasir‑ud‑Din is accepted. There is no evidence against Jalal Din appellant except that of Walayat, who says, that he heard Nasir‑ud‑Din appellant ask Jalal Din to produce a match box and burn his shirt and under . The witness does not say that Nasir‑ud‑Din had taken off the clothes and handed them over to Jalal Din. Nor is there any evidence of the actual burning of the clothes by Jalal Din. It is true, that during the investigation Jalal Din pointed to some ashes but this would not necessarily show Nasir‑‑ud‑Din took off the clothes and handed them over to Jalal Din rind that Jalal Din himself burned them. I would, therefore, accept Jalal Din appeal and acquit him. MUHAMMAD MUNIR, A. C. J.‑

I agree with the findings :;l my learned brother and the order that he proposes Of make. The evidence in this case produces an irresistible impression on my mind that the exact circumstances resulting in Professor Butt's death have not been disclosed by the witnesses. I cannot believe, as is deposed to by Masood Ahmad, that Nasir‑ud‑Din Haider appellant merely accused Masood of backbiting him to the Professor, that thereupon the Professor addressed the appellant as his son and asked him to go away, that the appellant made one rude remark to the Professor and said that he would not go and that the Professor after hearing this remark had, just arised from his charpoy when the appellant stabbed him with a knife There must have been something said or done by the Professor which caused the appellant to use his knife in the heat of the moment. It is not the prosecution case that the appellant had come to where the Professor was sitting with his family to kill him, and the killing can only be explained on the hypothesis that something very provocative must have been said or done by the Professor. The grappling between the appellant and the professor is admitted by some of the witnesses and the appellant has several injuries on his person of which no explanation was given by any of the witnesses during the investigation. Wilayat (P. W. 11) now states that he caused these injuries to the appellant with a danda, but he does not admit having given more than two or three blows, whereas according to the medical evidence the appellant had eight clear injuries including two contusions, one on the upper left lip and the other on the lower right lip. It will, therefore, be safer to convict the appellant under section 304, because the facts Prima facie suggest that the Professor's death was caused sudden fight in the heat of passion upon n sudden quarrel, and it cannot be said that the appellant took undue advantage or acted in a cruel or unusual manner. A. H. Conviction altered.