P (PLP)

ABDUL MAJID, C. J.‑Jahandad Khan aged 30 years has been sentenced to death for the murder of his father‑in‑law Ali Akbar on the morning of 5th April, 1950 under the provisions of section 302 A. P. C. He has appealed through jail and the proceedings are' before us for confirmation of the death sentence. The principal witness as to the motive for the crime is Mst. Begum Jan P. W. 8 wife of the appellant. It is said that there was some trouble between husband and wife and the latter had gone to live at the house of her deceased father and the appellant though that the deceased was preventing his wife from returning to his house and bore ill will against the deceased on that account. The appellant examined mother of the deceased as a defence witness to show that the deceased was attacked as a result of sudden quarrel which took place between the deceased and the appellant over the re‑payment of the money borrowed by the deceased from the appellant but the defence story has not been believed by the learned Sessions Judge. In his statement the appellant denied that he had caused injuries to the deceased though he was examines, under section 342 Criminal Procedure Code twice before and twice at the time of re‑trial and this was probably the reason which led the learned Sessions judge to hold that the appellant had motive to kill the deceased. We are, not, however, prepared to agree with the learned Sessions judge on this point. We hold that there were bad relations between the appellant and the deceased, but these were not so strained as to incite the appellant to murder the deceased. According to the prosecution evidence the appellant passed the night proceeding the day of occurrence in the house of Muham mad Yusaf P. W. 7 step brother of the deceased. Shortly before the occurrence Muhammad Yusaf left his house to meet one Bahadar Ali shopkeeper. After the departure of Muhammad Yusaf an outcry was raised that the deceased had been killed by the appellant. Muhammad Yusaf and several other witnesses repaired to the scene of offence and found the deceased lying injured and dead in the courtyard of the latter's house. Gulab P. W. 5 and his daughter Mohsin Bi P. W. 6 witnessed the appellant striking the deceased with stones. Gulab tried to seize the stones from the appellant but the latter pushed him away and he fell down. The appellant threw stones at Gulab but he climbed a wall and raised hue and cry. In the mean time the appellant departed from the scene of offence. The persons who reached the place of occurrence later were told by Gulab and Mohsin Bi that the appellant had caused injuries to the deceased. This version of the incident is supported by overwhelming evidence and there is no doubt that this is the correct version. None of the prosecution witnesses is, however, in a position to say what happened before the appellant hit the deceased with stones. The learned counsel appearing on behalf 6f the appellant has argued that under the circumstances the offence was that of culpable homicide not amounting to murder punishable under the 1st Part of section 304 Criminal Procedure Code as the murder was committed without premeditation in 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 un usual manner ( See exception 4 to section 300 A: P. C.) The defence evidence led by the appellant as already remarked is not worthy of any credit. In order to find out how the attack on the deceased originated, we have to depend upon the circums tantial evidence. It is not alleged that the appellant went to the house of the deceased carrying any arm. It is, therefore, quite possible that before the deceased was attacked some sort of altercation might have ensued between the appellant and the deceased about the return of Mst. Begum Jan to the house of the appellant and that the appellant in the heat of passion might have picked up stones lying in the courtyard of the house of the deceased and threw them at the deceased. All the elements of the above exception do apply with the possible exception of the last, it be considered that enmity between the deceased and the appellant was not so great as to incite the latter to kill the‑ deceased. The learned Advocate‑General has argued that though the murder was unpremeditated and might have taken place in a sudden fight in the heat of passion upon a sudden quarrel still it could not be said that the offender had not taken undue advantage. The doctor who performed the post mortem examination of the deceased was not examined at the time of re‑trial and his evidence given at the time of original trial was admitted under section 33 of the Evidence Act, on account of his where‑about being not known. The learned counsel for the appellant has contended that if the evidence of the doctor is excluded because of the failure of the appellant to cross‑examine him then it cannot be said how many injuries the deceased actually suffered. It is established on the record that the doctor could not be found at the time of re‑trial. The question is whether the evidence of the doctor recorded before the re‑trial was ordered, could be used against the appellant under section 33 of the Evidence Act. The re‑trial in this case was ordered because the accused was not defended by any counsel, when he was originally tried by the Sessions judge and it was thought that the witnesses have not been subjected to the cross‑examination which was necessary for testing their evidence. The re‑trial thus opened up the whole case and the evidence had to be recorded afresh at the time of the retrial. The appellant had certainly a right to cross‑examine the prosecution witnesses before re‑trial and on the maxim " Omnia Praesumuntur Rite Esse Aeta", the opportunity to cross‑examine will be presumed to have been offered to him unless the record shows that the witness was not cross‑examined because the opportunity to cross‑examine was denied. If the opportunity to cross‑examine was offered as is the case here deposition, will not be rendered inadmissible because the appellant did not avail himself of it. This being the case the evidence of the doctor which was recorded at the original trial could be admitt ed at the time of retrial, if he could not be found or was incapable of giving evidence otherwise. The contention of the learned counsel for the appellant that the injuries of the deceased cannot be taken into consideration because the doctor was not examined at the re‑trial and his evidence given at the original trial was used under section 33 of the Evidence Act against the appellant, consequently does not merit any consideration. We therefore hold that this cannot be denied that the deceased suffered numerous injuries but this fact does not lead to the inference that the offender did take to some extent undue advantage In this part of the country stones are usually used for causing injuries to the opponents and it seems to us that the appellant suddenly without realising the consequences in the heat of passion indiscriminately hit the deceased with stones under provocation and it cannot be definitely said that he took any undue advantage not protected under this exception. In our judgment exception 4 might therefore, be properly applied in the present case. We accordingly accept the appeal, set aside the conviction of the appellant for murder and instead convict him of the offence of culpable homicide not amounting to murder punishable under the first part of section 304 A. P. C. and sentence him to 10 years rigorous imprisonment. The appellant to be informed of the result of appeal through the jail authorities. NIAZ AHMED, J.,

I agree K. M. A . Appeal accepted.