P L D 1980 Lahore 434 (PLP)

Imam Bakhsh appellant has been convicted by the Additional Sessions Judge, D. G. Khan under section 304, Part 1, P. P. C. and has been sentenced to 9 years' R. 1. and a fine of Rs. 500 and in default of payment of fine to suffer S. 1. for 2 months. The appellant was tried under section 302/34, P. P. C. alongwith his brothers Ghulam Farid and Khuda Bakhsh .for having murdered Muhammad Khan on 4-8-75 at 3-00 p.m. when the deceased was returning from Jampur along with Hafiz Ahmad Bakhsh and Muhammad Sadiq. The motive attributed for the commission of the murder of Muhammad Khan was that the appellant and his brothers suspected him of having illicit relations with their mother.

2. At the trial the appellant and his co-accused did not admit the charge but in the statement recorded under section 342, Cr. P. C. after the close of prosecution case, the appellant disclosed that on the day of occurrence he was returning from his fields to his house when he heard some whispers from a jawar field. When he went near the field he found Muhammad Khan deceased and his mother Mst. Suhagan present there in objectionable position. Muhammad Khan deceased after seeing him tried to run away but he attacked him with the hatchet and inflicted injuries on his person. His mother, however, managed to slip away. According to the appellant his brothers were not present there and that they had not taken any part in inflicting injuries on the person of the deceased. Ghulam Farid and Khudah Bakhsh also supported the appellant in their statements recorded under section 302, Cr. P. C. that they had not taken any part in causing injuries to Muhammad Khan deceased. According to them they had been falsely implicated in the case.

3. The learned Additional Sessions Judge did not accept the prosecution version. He found that Muhammad Khan deceased was attacked and injured in the manner stated by the appellant. He accordingly convicted him under section 304, Part-I, P. P. C. and acquitted his co-accused Ghulam Farid and Khuda Bakhsh vide his order dated 12-8-1978.

4. The learned counsel for the appellant has not questioned the order of conviction passed by learned Additional Sessions Judge against the appellant before me though in the memorandum of appeal it had been contended that the appellant was not liable to be convicted under section 304, Part I, P. P. C. as there were some discrepancies in the number of injuries found on the person of Muhammad Khan deceased at the time of his medical examination and the number of injuries noticed on his dead body at the time of post-mortem examination. The learned counsel for the appellant has submitted that since the appellant's conviction is based on the statement of the appellant wherein he had admitted that he had attacked Muhammad Khan deceased and inflicted injuries on his person under grave and sudden provocation, he would not question the order of conviction passed by the learned Additional Sessions Judge. The sentence of imprisonment awarded to the appellant, however, is considered to be excessive by the learned counsel for the appellant. Even the learned counsel for the State has conceded that in a case covered by Exception I to section 300, P. P. C. where the accused had caused the death of a person after having been deprived of the power of self-control by sudden and grave provocation on finding his mother in the company of her paramour in an objectionable position, the sentence of 9 years' R. 1. would be considered rather harsh and excessive.

5. Although there is no hard and fast rule as to the quantum of sentence to be awarded in a case falling under Exception I to section 300, P. P. C., a sentence of imprisonment ranging from 3 months to 5 years to the accused has been considered to be sufficient. In Hanif v. The State (1) the accused had murdered his mother whom he saw sitting with her paramour on the same cot. Sentence of 5 years' R. I. awarded to the accused was considered on the higher side and was reduced to 3 years' R. I. In the case under consideration the appellant had also found his mother in the company of her paramour when he killed the latter. A sentence of 3 yard R. 1. to the appellant, therefore, would be sufficient to meet the ends of! justice. I accordingly allow this appeal to the extent that the sentence of 91 years' R. 1. awarded to the appellant by the learned Additional Sessions Judge .4 is reduced to 3 years' R.

1. The sentence of fine awarded by the learned Additional Sessions Judge is, however, maintained but the amount of fin on realization shall not be paid to the heirs of Muhammad Khan deceased as compensation because the circumstances under which the death of Muhammad Khan had occurred do not justify the payment of any compensation to his heirs. The order of the learned Additional Sessions Judge shall also stand modified to the above extent. s. G. D.??????????? (I) 1968 P Cr. L J 1505 Order accordingly.