P L D 1965 Dacca 220 (PLP)

BAQUER, J,‑Condemned prisoner Ensan Matbar alias Ensanuddin Matbar alleged to be matricide has been convicted under section 302 of the Pakistan Penal Code and sentenced to death by the Additional Sessions Judge of Faridpur. He has appealed and there is a Reference by the learned Additional Sessions Judge under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. We dispose of both the appeals and the Reference by this judgment. The trial was held with the aid of four Assessors, all of whom found the appellant guilty under section 302 of the Pakistan Penal Code. The prosecution examined 10 witnesses. The defence did not examine any witness. The facts are as under: One Jabbar died survived by four sons, namely, Jamsher, Jahed Ali, Sunamaddi and Munsur by one wife, Abed Ali by second wife and Aminuddin, Daliluddin and Satter by his third wife. Jamsher died leaving his son Hamid and Dadan is son of Hamid. Abdul Majid is son of Jahed Ali. Rustom and Abdul are sons of Munsur. Aminuddin died leaving 3 daughters‑Nurjahan P. Ws. 1 and 2 others without any male child. Daliluddin died leaving two sons, condemned prisoner Ensan and Yusuf P. W. 2 and widow Jolekha. Yusuf is a boy of 12/13 years and resides in the same mess with his mother Jolekha and Ensan lives separately. Nurjahan, Ensan and Satter reside in one house and other sons of Jabber reside in other contiguous separate houses. Aminuddin left three tin huts with an `Wassiat', that one of his huts should be sold and that by the sale proceeds thereof‑a tube‑well be sunk close to his graveyard; further that a Masjid be erected and Moulvis and Munshis be fed. Accordingly Nurjahan P. W. 1, daughter of Aminuddin, sold the east bhiti tin but for Rs. 950 in Agrahayan, 1370 B. S. and the appellant kept this money with him to do all these things, but he did not. As a result of a splish, however, he sank a tube‑well at a cost of Rs. 250 in Pons following. Nurjahan made takid for the balance of the money but the appellant did not pay. So she instituted a suit in the Nekoli Union Council Conciliation Court for Rs. 700 against the appellant and his mother Jolekha and the date of hearing of the case was due on 1st Chaitra, 1370 B. S. At Asar prayer time on 14‑3‑64 Nurjahan was clearing dust from the paira in her yard. At that time there was an altercation between the appellant and his mother over the case, in the yard in front of their but and this altercation developed into a quarrel between the mother and the son. Jolekha told Ensan to return the money and that otherwise she would speak the truth before the conciliation Court. Being exasperated by this declaration, Ensan went into his hut saying "you daughter of a whore, must tell the truth" and brought out a ramdao and dealt blows on Jolekha. On receiving the blows Jolekha fell down on the yard and she died instantaneously. Jarina P. W. 3, wife of Satter P. W. 6 and Yusuf P. W. 2 were also there. After dealing the blows Ensan ran towards the north with ramdao in hand. Subsequently he was brought back home under arrest by the villagers with the ramdao. On receipt of information of murder Choukidar P. W. 8 came to their house and guarded the deadbody. Yusuf went to the thana in the night and lodged the F. I. R. at 3 a. m., the distance between the thana and the house of Ensan being 8 miles. After investigation by the police charge- sheet was submitted against the appellant under section 302 of the Pakistan Penal Code and after preliminary enquiry by a competent Magistrate he was committed to the Court of Sessions to stand trial under section 302 of the Penal Code. The story as above tallies with what was elicited in the earliest information on the subject, that is, the F. I. R. and that was also in substance the story in the committing Court. As the appellant was undefended in the committing Court, there was no cross- examination of the P. Ws. and the defence remained unrevealed. There was volte face by as many as 3 important witnesses in the trial Court and the appellant being defended this time, the P. Ws. were cross‑examined at some length. In his examination under section 342 of the Code of Criminal Procedure by the trial Court, he pleaded not guilty and further stated that he was tied up and Yusuf was instigated to lodge the F. I. R. that he did not inflict the kopes. The defence as suggested at the trial was in substance that Abdul Hamid and sons of Satter had damaged the tube‑well but they did not repair it though asked by Ensan; that there was a quarrel over this tube‑well between Ensan and sons of Abdul Hamid and Satter near the tube‑well and during this quarrel when Jolekha had come to save her son, sons of Abdul Hamid and Satter had dealt ramdao blows on Jolekha of which she died near the tube‑well. When Ensan was going to lodge F. I. R. these people arrested him and took him to the house of Hashem, another sister's husband of Nurjahan, and that they had sent Yousuf under threats to Shibchar police station to lodge the impugned F. I. R. On those facts, the learned Additional Sessions Judge convicted and sentenced the appellant, as above. Relying upon the trial Court evidence of P. Ws. 1 and 4, as supported by the committing Court evidence of P. Ws. 2, 3 and 6, and the medical evidence of P. W. 9, the learned Additional Sessions Judge found that the appellant had inflicted the injuries upon his mother by a ramdao leading to her instantaneous death. The learned Additional Sessions Judge found no substance in the defence set up for the first time in the trial Court resulting from the volte face of P. W. 2 Yousuf, P. W. 3 Jarina and P. W. 6 Abdus Sattar. The resiling of these witnesses in the trial Court cut no ice with the learned Additional Sessions Judge. Yousuf being a grown up body, according to the learned Judge, he could not file false ejahar against his full brother under threats from uncle and cousin brothers, as sought to be made out at the trial ; nor the fact of the appellant being arrested when he was running towards north with the ramdao in hand in which direction the thana lay, had any significance with the learned Additional Sessions Judge in favour of the appellant, the reason assigned by him being that the appellant could not have run like that by himself towards the thana for the purpose of lodging ejahar unaccompanied by the local village chowkidar and dafadar. The learned Judge also discarded the story of `maramari' as the appellant did not have a scratch on his person. The suggestion that the appellant was falsely implicated as a result of enmity between the appellant and his uncle and cousin over property left by common ancestors, was also ruled out by the learned Judge on the ground that at any rate the uncle and cousin had no reason to murder Julekha when their enmity was with Ensan and not his mother Julekha. Mr. Abdur Rasheed, learned Advocate appearing for the appellant condemned prisoners, has taken us through the judgment and the entire records of the case. He has urged (1) that the story of the prosecution was so strange that it could not be believed; (2) that P. Ws. 2, 3 and 6 are thoroughly unreliable and it is unsafe to base any conviction on their evidence and in the alternative if their evidence is taken into consideration at all, it is their evidence in the trial Court that should be accepted in preference to the evidence in the committing Court, particularly because their evidence in the committing Court went unchallenged as the accused was undefended in that Court and the defence went un-revealed ; (3) that the defence version, namely, that the occurrence took place over the repair of the tube‑well may well be true when there was a maramari with Ensan ; (4) that the prosecu tion has not been able to fix the exact place of occurrence ; that if it is at point `K' as in the sketch map, Nurjahan P. W. 1 could not have seen at all ; that as P. W. 1 said that there was no male member present at the time of occurrence, this rules out P. Ws. 2 and 4 as eye‑witnesses. At this stage we propose to examine the evidence. P. W. 1 is Nurjahan, cousin sister of the appellant ; P. W. 2 Yousuf is the full younger brother of the appellant ; P. W. 3 Jarina is wife of Abdus Sattar, P. W. 6, who is an uncle of the appellant ; P. W. 4 Mansur Matbar is another uncle; P. W. 5 Chand Molla is a neighbour and a Tax‑Collector of the Niloki Union Council. P. W. 7 is Kazi Anisul Haque, Chairman of the Niloki Union Council. P. W. 8 is the village Chowkidar. P. W. 9 is Dr. A. Haque, Medical Officer, who held post‑mortem examination on the dead body of Julekha and P. W. 10 is Md. Abdul Wahed,

1. O. who investigated into the case and submitted charge‑sheet. P. W. 10 held inquest on the dead body of Julekha on the identification of her son Yousuf and Chowkidar Ketabdi, P. W.

8. After inquest he sent the dead body to Madaripur morgue through P. W.

8. P. W. 9 held the post‑mortem examina tion of the dead body of Julekha on 16‑3‑64 at 12 noon and found the following injuries on her dead body: ‑ "(1) One incised wound 6 " x 4" x 4 " the entire structure of the throat from behind forward was cut. The head was hanging by tag of skin in front situated over the back of the neck at the lever of the second servical vertebrae. (2) One incised wound 4" x 1" x 2" situated 2" below the injury No. 1. (3) One incised wound 5" x 2" x 2 " over the right shoulder blade which cut the acrominon process of the right scapula. (4) One incised wound 7" x 3" x 3" over the left scapula. (5) One incised wound 9" x 2" X 2 " situated transversely on the vertebrae column at the level of the 1st lumba vertebrae which was cut completely. (6) One incised wound 4" x 1 " X 2" situated 2" below the injury No.

5. Clotted blood was found in the injury. Stomach contained partially digested food material weighing 4 chattaks. Other organs of the body were otherwise healthy but anaemic." The doctor was of the opinion that death was due to heamorrhage and shock as a result of injuries described above which were ante mortem and homicidal in nature. He further opined that those injuries might be caused by sharp‑cutting weapon such as ramdao. P. W. 1 Nurjahan has stated that the quarrel was held in the yard in front of the but and that the appellant had dealt ramdao blows on the body of Julekha there and she had fallen down and died there. P. W. 4 Mansur Matbar also stated that Julekha had fallen down and died in the yard. P. W. 5 Chand Molla also stated in his examination‑in‑chief that he had found mother of the appellant lying dead on the yard, though in cross‑examination he has stated that he had seen the dead body on the yard near the date tree towards the west and that when the daroga had come the dead body was removed towards east near the but but he was not present when the dead body was removed. P. W. 10, the I. O. stated that he got the dead body in front of the north bhiti but and seized blood‑stained earth from around the dead body and in cross he stated that he had examined the places near about the tube‑well but he did not find any blood any where else and that there was sufficient blood around the dead body. P. W. 1 and other P. Ws. stated that Julekha was murdered a little before sunset at about Asar prayer time. P. W. 1 stated that during the quarrel Julekha had asked her son to give back the money; otherwise she would speak the truth before the Union Council Conciliation Board and that upon those words, the appellant using the ugly words as mentioned before, brought out the ramdao from his north bhiti but and dealt blows upon his mother. Nurjahan was sitting in the yard in front of the dhenki ghar to the south of Kashem's ghar and the occurrence had taken place in the yard of the appellant which was visible from where she was sitting. There was a suggestion made to this witness that the appellant wanted to marry her by taking divorce from her husband and that for that reason she had deposed falsely against the appellant but P. W. 1 stoutly denied it. P. W. 2 Yousuf went back upon what he stated in the committing Court. He lodged the F. I. R. but he stated at the trial that he had filed the same under threat of his uncle and cousin. The I. O. stated that Yousuf had gone to the thana to lodge ejahar accompanied by Chowkidar Mansur and uncle Abdus Sattar and another Chand and that he had voluntarily stated the occurrence. In the F. I. R. P. W. 2 stated that his brother had gone in and come out with the ramdao and inflicted 7/8 kopes on his mother but at the trial he stated that on hearing cries, he had come home running and found his mother lying dead near the tube‑well. In the committing Court he stated that the appellant grew furious, rushed into his hut, brought out a ramdao and dealt several kopes on his mother and this is also corroborated by the F. I. R. In the committing Court this witness stated that on the 30th Falgun, 1370 B. S. just after Asar prayer time Julekha and the appellant had a quarrel over the case filed by P. W. 1 in the Union Council Court and that his brother rushed into his but and brought out a ramdao and dealt several kopes on the person of his mother and P. W. 1 and himself cried out, that P. Ws. Sattar, Jarina and others had come to the place of occurrence ; that the appellant ran away towards the north with the ramdao in hand. P. W. 3 Jarina Bibi, wife of P. W. 6, uncle of the appellant, has resiled from her earlier statement like her husband. She stated at the trial that Ensan and his mother had quarrelled near the tube‑well and that Hamid Matbar had come with a lathi ; Rustam and Dadan came out with dao and san ; that Ensan had gone to the ghar and again gone near the tube‑well. Then Ensan called out shouting "My mother has been killed ! My mother has been killed". Then he proceeded towards the north to go to the thana and people of the village had arrested him and tied him there. In the committing Court she stated that on the 30th Falgun 1370 B.S. just after Asar time she had found the appellant and his mother Julekha quarrelling over the case filed by P. W.

1. Accused grew angry, entered into his hut, brought out a ra rdao and dealt several kopes on the person of Julekha. She raised alarm and fainted. Regaining consciousness, she found many persons and narrated the occurrence to them. P. W. 4 Mansur Matbar stated that on the 30th Fa1gun 1370 B.S. a little before the sunset Julekha was murdered. He heard quarrel between appellant Ensan and his mother when he was going to tie cow. On hearing noise he went to the house and found Ensan dealing blows with ramdao on the body of his mother. Having received the blows, the mother fell down and died on the yard. On hue and cry being raised, Ensan ran away with the ramdao towards the north and the villagers caught him. The witness stated that he and his brothers had no quarrel with the accused over the tube‑well. P. W. 5 is Chand Molla, Tax‑Collector of the Niloki Union Council, who proved the salish. He stated that Nurjahan, Hamid and others had told him that Ensan had dealt blows with ramdao on his mother and killed her. But in his cross‑examination he stated that there was a row that Ensan had quarrel with Hamid and others over the tube‑well. Incidentally this witness denied that Daroga had seized blood‑stained earth around the dead body of Julekha in his presence but it appears that he attested the seizure list which goes to indicate that he was trying to shield the appellant. P. W. 6 Abdus Sattar, husband of P. W. 3 stated that on hearing row he had come and found the mother of accused lying dead with 5/6 kopes near the tube‑well; that it was talked of there that Ensan's mother had quarrels with Hamid over a tube‑well and that Ensan ran away with a small dao. In the committing Court this witness stated that he had seen the accused running away with a ramdao and that Julekha, mother of the accused, was lying dead with several kopes on her person and that P. Ws. told him that the accused had dealt the kopes and Jolekha died then and there. It is to be noted in this connection that the evidence of these three resiling witnesses in the committing Court was brought in under section 288 of the Code of Criminal Procedure. P. W. 7 is Kazi Anisul Haque, Chairman of the Niloki Union Council. He proved the filing of the case by Nurjahan against the appellant and his mother for Rs.

700. P. W. 8 is the Chowkidar of the Union Council who stated that he had gone to the house of the accused at the time of Maghrib prayer near the dead body when he was called by Hamid, uncle of the appellant. On his first arrival there he did not see the accused but sometime after at night Ensan was brought near the body by the villagers with ramdao. It appears, however, that he did not state all these things in the committing Court. P. W. 9 is the Medical Officer whom we have already discussed and P. W. 10 is the I. O. who recorded the ejahar and held the inquest on the dead body of Julekha in front of the north bhiti hut. He seized cut hair from the head of the deceased Exh. III, blood‑stained earth Exh. II and one blood‑stained ramdao Exh. I in presence of Chand Molla P. W. 5 and others. He prepared a sketch map with a separate index Exhs. 4 and 4‑A. In cross-examination this witness stated :‑ "There is a tube‑well in that house. I have not shown it in the map. I examined the places near about the tube‑well. There was sufficient blood fell around the dead body but I seized some blood‑stained earth. I did not see blood any where else. So I did not and could not seize it. I do not remember if there was date tree." In support of the first contention, namely, that the prosecution story was much too strange to be true. Mr. Rasheed has argued that the appellant never having denied receipt of the money, there was no occasion for any altercation with his mother ; that there was no evidence that the appellant wanted to grab the money. It appears that there was delay on his part in the execution of the works which tended to show that he wanted to devour the money. Jolekha, the mother, stood against it to uphold the truth and for this she has paid the heavy price of her life. So that it is not a question of denying receipt of the money but the failure on the part of the son, i.e., Ensan to implement the trust, that led to the tragedy. Mr. Rasheed has argued next that there could be no earthly reason why he should deal such a grievous injury on his mother on such slight provocation. The evidence discloses that he was living separate from his widowed mother and his little brother, which shows some amount of callousness on his part. For such a son, it is not impossible to inflict the injuries. There being sufficient evidence of eye‑witnesses that in fact he did cause the injuries, the discussion as to how far Ensan could inflict such injuries upon his mother seems rather academic. Truth is often stranger than fiction. With regard to the ground, that the prosecution has not been able to fix the exact place of occurrence, it will appear that P. Ws. 1, 4 and 5 have fixed the place of occurrence at the yard. It is true that P. W. 5 has said that the body was removed towards west, but that does not mean that it was near the tube well and from there it was removed towards the west. The evidence of P. W. 10, the I. O., as stated in cross, as quoted already, seems to definitely fix the place of occurrence in the yard inasmuch as no blood marks were found in the vicinity of the tube‑well. Further the tube‑well being in order as per evidence of P. W. 1 Nurjahan, there could be no occasion for quarrel over the repairs of the tube‑well, as suggested to P. W. 1 by the defence. P. W. I in cross: ‑ "The tube‑well is in order. It is not a fact that it has been damaged by Dad Ali and Abdul Hamid and Rustam and sons of my uncle and they did not agree to repair it. It is not a fact that the accused said that he would not allow them to take water from the tube‑well if they would not pay the repairing cost and that there was `golmal' over this matter and that these persons had come to kill Ensan with ramdao and that they had murdered Jolekha when she had approached to save the accused." P. W. 5 stated in cross that there was row that Ensan had `golmal' with Hamid and others over the tube‑well while P. W. 6 in examination‑in‑chief stated that it was talked of there that Ensan's mother had quarrels with Hamid over a tube‑well. Thus, the quarrel is once with Ensan's mother and in the next moment it is with Ensan himself. That being the position, we do not find much substance in the argument that the occurrence took place near the tube‑well. It is true, as pointed out by Mr. Rasheed, that P. W. 1 stated "I did not wash the blood fell in near the tube‑well. Blood fell where Jolekha fell down. Accused had removed this blood." This was elicited, it seems to us, by a rather clever strategy on the part of the defence lawyer and even at that, the interpretation of it does not necessarily indicate that Jolekha was attacked near the tube‑well and fell near the tube‑well. She has simply stated that "blood fell where Jolekha fell down and accused had removed this blood". It is not the defence case that the accused removed blood. Mr. Rasheed has strenuously argued that P. W. 1 Nurjahan having stated that no male member was present at the time of occurrence, P. Ws. 2 and 4 cannot be accepted as eye‑witnesses. It appears that Nurjahan has stated that her aunt Jarina and Yusuf were also there. Obviously she was not regarding Yusuf, who is a lad of 13/14, as a male member. Further from the end she was flying her Paira, she may not have seen Munsur P. W. 4 approach ing and further there was no suggestion to P. W. 4 himself that he was not present at the time of the occurrence. As to the visibility from the point where P. W. 1 was flying her Paira the evidence of P. W. 1 is: "There are 3 divisions in our house. In one portion, we reside, my uncle Sattar Matbar possesses the middle portion and the accused possesses the next portion to the north. At the Asar prayer time of the 30th Falgoon, 1370 B.S: I was clearing dust from the Paira in our portion in my yard where from yards of the other 2 portions are also visible. Huts are on the western and eastern side of the yard of the house. Accused and his mother were altercating at that time . . . . . " Now, so far as these lines go, it is clear from that that there was nothing to restrict the visibility but Mr. Rasheed has banked upon the following lines stated by this witness in cross: "To the north of Kashem's house is the cow‑shed of Abdul Sattar. He resides on the east bhiti tin hut. To the north of the court‑yard of Sattar is the but of Ensan. To his north is this yard. To the north of this yard is the but of deceased Jolekha." The evidence of P. W. 1 is that from her portion of the yard the other yards including that of accused was visible. Separate yard does not necessarily mean yard separated by fencing and the yard is a continuous stretch. What has been stated in cross, as above, by this witness, does not necessarily mean that this yard is to the right north of the but of the deceased Jolekha, that is, that the yards are split up and separated by the hutments standing across. What has been stated is capable of the meaning that the huts were in a row one after another in the eastern side and as the sketch map shows, there is a continuous stretch of open space along‑side towards west, so that from the point between F and G in the sketch map in the south Nurjahan could have seen. There may be a yard between Ensan and Jolekha towards the north of Ensan and if the occurrence took place there, that may, well be visible from the point between F and G where Nurjahan was. Further more, there is no direct suggestion to P. W. 1 that she could not have seen from her position in the south. Next drawing the attention of the Court to the evidence of the resiling witnesses, Mr. Rasheed has contended that P. W. 2 supported the defence version of the case in the trial Court and had given natural explanation regarding his previous statement, namely, that he being a young boy, he was overwhelmed with grief and he was very easily susceptible to threats, and that he did not mention the name of Munsur in the F. I. R. and that he did not mention the arrest of the accused in the F. I. R. This witness Yusuf seems to be obviously resiling, which may have been dictated by the very instinct of self‑preservation. The mother was already dead and if he stood to lose the brother also, life would be indeed very dismal for him. That may have been the reason why he took a right about turn in the trial Court. So far as the contention that P. W. 2 stated against his brother in the committing Court by reason of fear, that does not seem to be quite feasible, having regard to the fact that at the time of lodging of the F. I. R. no one of those men who could have threatened him were present along with at the thana. This witness has surely mentioned the name of P. W. 4 Munsur in the F. I. R, as one of the witnesses. So far as the non‑mention of the arrest of the accused in the F. I. R. goes, it appears that Yusuf left for the thana prior to the arrest and from the very inception the story is that Ensan ran with the ramdao towards north after the occurrence. Coming to P. W. 3, Mr. Rasheed has argued that he has supported the defence version in the trial Court. This witness is also obviously resiling, and the story as told by her in the trial Court, seems inherently improbable for the reasons already discussed. The quarrel, according to this witness, is between Ensan and the deceased whereas the defence case as suggested to P. W. 1 as quoted before, is that of a maramari or golmal between Ensan, Dad Ali, Abdul Hamid and others. In these circumstances, we feel constrained to hold that P. W. 3 sought to improve the position in favour of the accused at the trial. Coming to P. W. 6, Mr. Rasheed has contended that this witness has categorically supported the defence version having admitted that it was talked of them that Ensan's mother had quarrels with Hamid, over the tube‑well. We do not find any reason for this witness to implicate the accused falsely in this case as stated in the committing Court. He accompanied the informant to the thana and his evidence in the committing Court is quite straight‑forward. He is also a common relation. The rule of law being not to discard the whole evidence of the resiling witnesses but to accept that version of it which tallies with the rest of the evidence and the other circumstances of the case, we see no difficulty in accepting the committing Court versions in the circumstances disclosed. Considering all the materials as above, we do not see any substance in the defence contentions, and we are of the view that the defence could not alter the time, place and manner of the occurrence as alleged by the prosecution. There is little doubt that the appellant committed the murder and that in a very dastardly and brutal fashion having regard to the number and intensity of the injuries inflicted upon the deceased. The only question is : Whether the sentence in such a case must necessarily be of death. There is absence of premeditation and there was also some provocation. P. W. 1 states "Accused's mother asked the accused to pay off the money ; otherwise she would speak the truth in the Union Council. Then there was quarrel between the accused and his mother." Several other witnesses also said that Ensan had quarrel with his mother. In this connection, the decision in Emperor v. Girdhari Teli (A I R 1940 Pat. 605) may be cited here. In this case, Harries, C. J. observed "In my view these circumstances tend to show that the 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 vizious 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 his axe and without any real thought attacked Kali with fata results. In my judgment a sentence of transportation for life is sufficient in this case to meet the ends of justice." On the point of reduction of sentence there is also the decision in re : Sankappa Shetty (A I R 1941 Mad. 326) in which 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 laboring under a delusion that some relation of his had given him drugs and that krutrim (witch‑craft) had been practiced upon him. After the room was broken open by five persons 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 premeditation and the accused must have received what he considered to be considerable provocation before he attacked his wife in the way he did." There being difference between Gentle, J. and Patanjali Sastrii, J. the matter‑was referred to a Third Judge and posted 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. Coming nearer home, we have the decision in Seraj Ali v. The Crown (7 D L R 119) in which my learned brother appeared then as acting Deputy Legal Remembrancer. In this case our Division Bench held in substance "The fact that the accused did commit the murder under the influence of some provocation is one to which great weight ought to be attached in considering the question of sentence." The learned Judges in this case also reduced the sentence of death to one of transportation for life having regard to the fact that the attack was the result of provocation and that the attack was made before the provocation had cooled off. Considering all the circumstances, as above, we would reject the Reference and set aside the sentence of death, but would confirm the conviction under section 302 of the Pakistan Penal' Code and substitute a sentence of transportation for life for the sentence of death. The appeal is allowed to that extent only. ABU MD. ABDULLA, J.‑I agree. K. B. A. Appeal partly accepted.