KAMAL Versus THE STATE

1. MUHAMMAD AFZAL CHBHSIA, J .-Kamal appellant herein was sentenced to death by the Sessions Judge, Dara Ghazi Khan for having shot dead his wife Mst. Maui and her alleged paramour Hussain Bakhsh on 3-5-1971 at deegarwela in the area of village Chit Sarkani, 12 miles from Police Station, Choti, District Dera Ghazi Khan. Although it is not clearly stated so, yet the sentence of death appears to have been awarded on two counts as indicated by the reference to the "double murder" in the concluding paragraph of the trial Court's judgment, dated 8- -1972, which was upheld in appeal and reference by the High Court, ride judgment dated 18-1-1974, from which leave to appeal was granted.

2. The fact that from the very outset, the appellant had not only raised the plea of grave and sudden provocation but had also consistently stuck to it throughout the proceedings has reduced the controversy to a very narrow compass. Two days after the occurrence. the appellant approached Pir Bakhsh (P. W. 8) a resident of a neighbouring village requesting him to produce him before the Police as he had killed his wife and her paramour as "Kala Kali" which literally means adulterer and adulteress. He was accordingly produced before the Sub-Inspector alongwith the rifle P. 21, and two live bullets which was found to have been wedded to the two crime empties picked up from the spot. These empties were mentioned by Sonhara (P. W. 9) the first informant in the initial report lodged by him with Raja Zafar Hussain at 7-15 p. m. in village Birmani, five miles from the police station.

3. The prosecution case in substance was that on the fateful day, the deceased, Sonbara the first informant and brother of the deceased, his second brother Hussain and his two first cousins Pir Bakhsh (P. W. 10) and Amir Bakhsh were threshing wheat at a distance of one killa towards the south of the house of the appellant which is the scene of the crime. At about deegarwela, Hussa;n Bakbsh deceased was sent to bring a rake from the house of the appellant which was needed for threshing purposes. After a short while they heard a gun report and rushed to the spot finding Hussain Bakhsh deceased writhing on a cot in an injured condition and the appellant holding a rifle in his hand standing close by. In their view the appellant fired the second shot at his wife Mst. Malli. Both the victims died instantaneously. On the report of Sonhara, a formal F. I. R. was drawn up at Police Station at 8-00 p. m. On his arrival at the scene, the Sub-Inspector fund the dead body of Hussain Bakhsh lying on the cot while that of Mst. Malli on a mat of date leaves. Significantly enough, he also found a pair of shoes of the deceased lying close to the cot. The Sub-Inspector completed the formalities of investigation which stood concluded by the production of the appellant, on 5-5-1971 by Pir Bakhsh (P. W. 8) alongwith rifle P. 21 and two live bullets, who was arrested and challaned.

4. At the trial, the prosecution case rested on the testimony of Sonhare (P. W. 9), Pir Bakhsh (P. W. 10), Mst. Sabo Mai (P. W. 11) mother of Mst. Malli deceased and mother-in-law of the appellant, the medical evidence and that of recoveries and motive. The motive alleged in the F. I. R. and deposed to at the trial was that the appellant suspected his wife of having an affair with Hussain Bakhsh deceased and had killed them on that account.

5. As stated earlier before Pir Bakhsh (P. W. 8) in the first instance, who produced the appellant before the Police and subsequently before the Committing Magistrate as well as at the trial. the plea taken by the appellant was that having found the two deceased in a compromising position, he had killed them, under grave and sudden provocation. He, however, disowned the gun and stated that it belonged to Hussain Bakhsh deceased and was picked up by him at the spot.

6. Having regard to the rather unusual time of the meeting of the two deceased with an immoral object as alleged by the appellant and the proximity of the venue of the crime, namely, the house of the appellant close to the threshing-floor, the plea raised by him was rejected both by the trial Judge as well as the High Court and their concurrent finding in substance was that the two deceased had been killed by the appellant merely on account of suspicion which did not bring his case within the scope of Exception I to section 300, P. P. C.

7. Leave ,to appeal was granted by this Court to consider in the context of the admitted suspicion of a liaison between the two deceased, the cumulative effect of the established circumstances that the dead bodies were recovered from near the cattle-shed of the appellant, that Hussain Bakhsh deceased lay dead on a cot with his shoes lying on the ground, that an extra sheet was recovered from near the dead body of Hussain Bakhsh, and that vaginal swabs prepared at the time of autopsy ,were found to be stained with semen.

8. Having been taken through the evidence and having heard the learned counsel as also the Assistant Advocate-General, I am clearly of the view the existence of the hypothesis of the appellant having acted under grave an sudden provocation cannot be completely excluded on a reasonable asses went and closer analysis of the entire evidence and therefore, hi case fell within the purview of Exception I to section 100, P. P. C.

9. My reasons for coming to this conclusion are a (i) It is the prosecution's own case that the appellant had suspected Hussain Bakhsh deceased of having an affair with his wife Mst. Malls. This fact is specifically mentioned in the B F. I. R. and was later deposed to at the trial by the P. Ws. The witnesses obviously at pains to water down its importance , that the suspicion was false and that they had no personal knowledge of the same and had only learnt about this from the father and brother of the appellant on their arrival soon after the killing. Sonhara (P. W. 9) was confronted with his statement before the Committing Magistrates wherein he -had clearly stated that tae accused suspected the deceased Hussain Bakhsh of intimacy with Mst. Malli. The fact thus stands established beyond doubt and admittedly furnished the motive for the double murder- (ii) It was consistently stated by Sonhara. (P. W. 9) and Pir Bakhah (P, R'. 10) that Hussain Bakhsh deceased was sent to the house of the appellant to bring a rake which was needed for threshing purposes. This pretext in justification of the fateful visit appears to have been readily accepted by the Courts below for no good reasons inasmuch as it cannot stand the test of a closer scrutiny and its falsity stands easily expressed. No doubt it is common knowledge that a rake would be essentially required for threshing purposes and in fact two rakes were already with the deceased and his brother Sonhara which ware found to be inadequate, but normally one would expect that threshers would take with them all the necessary articles and implements in the requisite number According to Pir Bakhsh (P. W. 10), the threshing process was started by them at nimashanwela i.e. even before sunrise and yet surprisingly enough the shortage of a rake was not felt by them for the first time till the fag-end of the day at deegarwela. Again. assuming that the rake was so needed and the house of the appellant lying close to the threshing-floor was considered to he a convenience it place to ask for it, was it a mere coincidence that of all the persons present at the threshing floor only Hussain who was suspected of having illicit connection with the wife of the appellant was sent to bring it g As stated earlier, Sonhara (P. W. 9) had deposed before the Committing Magistrate that the accused suspected Hussain Bakhsh of having intimacy with his wife. In this background one should have normally expected the brothers and cousins of Hussain Bakhsh not to send Hussain Bakhsh deceased a rather unwelcome visitor to the house of the appellant. But this is not all. Even assuming that Hussain Bakhsh had gone on this seemingly innocent mission, there are some more baffling circumstances which remain unexplained and not only do not fit in with the prosecution case but also lend support to the plea raised by the appellant. The threshing-floor and the house of the appellant which is the scene of the crime are only one kills i.e. about 36 karams apart and one should have expected Hussain Bakhsh to have returned from his errand within about 10 minutes unless he hart stayed on or was detained for some other purpose. Although Sonhara (P. W. 9) and Pir Bakhsh (P. W. 10) would have us believe that they heard the first gun report about 8 or 9 minutes after the departure of Hussain Bakhsh deceased, Pir Bakhsh (P. W. 10) had clearly stated before the Committing Magistrate with which statement he was duly confronted that the time-lag was a little less thin half an hour. This duration obviously does not fit in with and casts serious doubt on the correctness of the mission of bringing the rake on which the deceased had been allegedly sent by his co-workers. In view of this analysis, I am inclined to hold that the bringing of rake was merely a false pretext raised by she prosecution which did not fit in with the natural probabilities of the situation. But this is not the end of the matter. (iii) There are also some other extraordinary features of the prosecution case which are difficult to explain away and do not appear to have been considered by the Courts below in their true perspective. A perusal of the site plan as explained by evidence shows the of, the appellant was living in the first room towards the' east while the remaining two rooms Were occupied by his father and other brothers. There was a cattle-shed just behind the room in occupation of the appellant, the eastern wall being common.

10. The two dead bodies were found by the police lying close to each other, the one of Hussain Bakhsh on the cot while the other of Mst. Malli on a matress near the eastern wall. The case of the prosecution is that Mst. Malli and her mother Mst. Sabo Mai (P. W. 11) who had come to stay with her from her village were separately cleaning wheat at two different places, some- thing rather unusual the former in front of her own room while the latter in front of the western room. Mst. Sabo Mai is the only witness of the genesis of the occurrence and the first part of the killing inasmuch as the other two witnesses, namely, Sonhara (P. W. 9) and Pit Bakhah (P. W. 10) had arrived after Hussain Bakhsh had already been hit. The description of the killing of Hussain Bakhsh furnished by Mst. Sabo Mai is rather difficult to swallow. She would have us believe that he was standing close to the cot and having been fatally injured not only accidentally fell on it but also remained on it despite convulsions of death agony. This obviously is an assumption to be taken with a grain of salt. But again the pair of his shoes lying close to the cot presents another hurdle and strongly militates against this version. On the other band, if the shoes had come off his feet as Hussain Bakhsh lay writhing on the cot, then they would have been found lying apart at some distance from the cot and also not close to each other in which position they were actually found indicating their deliberate removal by the deceased herself. (iv) Equally questionable is the prosecution version about the killing of :'Mst Malli. It is in evidence that she was a divorcee. Sonhara (P. W. 9) had stated before the Committing Magistrate that her previous husband Mew had sold her as Kali i.e. for being an adulteress. But even so, she had been married by the appellant and had a 3/4 months old suckling baby from him. It does not stand to reason that having deliberately married a divorcee of dubious reputation, he should have behaved like a man of an hypersensitive nature and gone to the extent of killing his wife and her alleged paramour a man from his brotherhood, on merely having seen them talking together as the prosecution would have us believe. But even otherwise, the account given by the three eye-witnesses in this regard is hardly consistent. Admittedly. Sonbara (P. W. 9) and Pit Bakhsh (P. W. 10) had reached only on hearing the gun report. According to Sonhara (P. W. 9), Mst. Malli was standing 3 or 4 karams away from the cot on which Hussain Bakhsh lay fatally wounded when the appellant straight away fired at her. On the other hand, according to Pit Bakhab, Mst. Malli protested to the appellant as to why he had killed the deceased thereupon he told her to get away otherwise. She would also be killed. She then tried to run towards the east and was fired at by the appellant. On the contrary, Mst. Sabo Mai mother of Mst. Malli categorically stated in cross-examination that Mst. Malli folded her arms out of fear but did not try to run away. Medical evidence reveals that she was fired at from a point blank range as indicated by blackening around the wound of entrance and existence of a wound of exit. But even if one were to ignore these matters of detail as it would be very difficult for the eye-witnesses appearing after several months of the occurrence to reconstruct the situation with precision and exactitude there is yet another doubtful circumstance. If indeed the appellant was so sensitive and was intensely provoked to the commission of the double murder by a mere suspicious meeting, he should be normally expected to have killed the two deceased in quick succession and would not have waited for the witnesses to turn up before killing his wife, the mother of a suckling baby from him. It seems to me more natural and probable that the spectacle which had wrought and perplexed him to the extreme was something, much more than a mere meeting and that the appellant had killed the two deceased in quick succession and the possibility of Sonhara and Pir Bakhah having arrived after the killing was already over cannot be esduded.

11. Lastly, I come to the presence of semen stains detected by the Chemical Examiner in the vaginal swabs taken during the post-mortem examination of Mst. Malli. No doubt considered in isolation, this circumstance could be reasonably explained away on the assumption of the appellant having had access to his wife in which situation he would perhaps have been in a comparatively relaxed condition. But considered in the overall context of the other concomitant circumstances detailed above, the conclusion I have reached is that it is not possible to exclude with certainty the alternative hypothesis of the appellant having acted under grave and sudden provocation on finding the two deceased in a compromising position as consistently asserted by him. It was held by the Federal Court of Pakistan in Safdar Ali's case (1) that reasonable possibility of the correctness of a plea of defence inferable from the relevant facts and circumstances, even though not specifically urged should be conceded to an accused as a matter of his legitimate entitlement in criminal trials. In the instant case, the plea was not only taken by the appellant at the earliest opportunity but was consistently adhered to by him at all stages of the proceedings against him, namely, investigation, enquiry and trial. The learned Assistant Advocate-General tried to raise a tenuous distinction between the expression "objectionable position" as used by the appellant before the Committing Magistrate and "compromising position" as employed by him at the trial. In my view, there is hardly any difference between the two as the impression sought to be conveyed is the same.

12. As a result of the foregoing discussion, I am clearly of the view that the Courts below had not judged these series of circumstances in their true perspective which pieced together and on proper appreciation bring the case of the appellant within the purview of Exception I to section 300, P. P. C. This brings me to the question of sentence.

13. On the basis of judicial decisions, it was submitted by Mr. Mahmud Ali Kasuri, learned counsel for the appellant that award of sentences in such cases under section 304, Part I has ranged from six months to five years. The appellant was arrested on 5-5-1971 and had thus already spent more than five years in detention. In the circumstances, therefore, the sentence already undergone by him should be good enough to meet the ends of justice. I would, therefore, allow the appeal and direct that the appellant may be released from jail forthwith if not required in any other case.

14. SALAHUDDIN AHMED, J .-I have had the advantage of perusing the judgment proposed to be delivered by my learned brother Muhammad Afzal Cheema, J. I regret I am unable to agree with the order and the sentence.

15. The incident took place on the 3rd of May, 1971, at deegurwela in which two persons were shot dead by appellant Kamal. One of them was appellant's wife, Mst. Malli and the other was Hussain Bakhsb, said to have been in liaison with Mst. Malli. The ocular evidence of the incident has been furnished by three witnesses, namely, P. W. 11 Mst. Sabo, mother of Mst. Malli deceased, P. W. 9 Sonhara, brother of Hussain Bakhsh deceased, and P. W. 10 Pit Bakhsh. There was no existence of any ill-will between any one of the eyewitnesses and the appellant. Presence of P. W. Sonhara at the spot was not challenged. Both P. Ws. MO. Sabo and Pit Bakhsh denied the suggestion that they did not see the occurrence.

16. The ocular evidence has been amply corroborated by the recovery of two empties from the spot which matched with the rifle produce by the appellant himself. Incidentally the matching of the empties with the rifle belied the appellant that he had killed Hussain Bakhsh and Mst. Malli with the gun of Hussain Bakhah deceased.

17. The appellant himself admitted before the Committing Magistrate as well as before the learned Sessions Judge that he had killed both Hussain Bakhsh and Mst. Malli with a gun. He further stated that he had killed Hussain Bakhsh and Mst. Malli under grave and sudden provocation.

18. It has thus been proved beyond any reasonable doubt that the appellant had killed both Hussain Bakhsh and Mst. Malli with a fire-arm, and that that appellant had fired with the intention of killing them both.

19. The question that arises for consideration, however, is whether in fact the appellant had killed Hussain Bakhsh and Mst. Malli under grave and sudden provocation so as to bring his act within Exception I to section 300 of the Pakistan Penal Code. Upon this point the concurrent finding of the trial Court and the High Court is that the appellant killed the two deceased persons merely on suspicion.

20. On the point of grave and sudden provocation the appellant has mad different statements at different points of time. According to P. W. 8 Pir Bakhsh, who produced the appellant before the police, the appellant had said that he had killed Hussain Bakhsh and Mst. Malli as "Kale-Kali" which meant 'adulterer-adulteress'. Before the Committing Magistrate the appellant a said that he bad seen Hussain Bakhsh and Mat. Malli in a compromising position and that under grave and sudden provocation he had murdered them both. At the commencement of the trial before the learned Sessions Judge he stated on the 6th of January, 1972, that he had killed the deceased persons, Hussain Bakhsh and Mst. Malli, as he had found them sitting together in an objectionable condition in his house. He said he had killed them with the gun of Hussain Bakhsh. On the 28th of February, 1972, in course of examination under section 342 of the Code of Criminal Procedure the appellant made the following statement before the learned Sessions Judge ;

21. "The incident took place like this. After sunset - time on the day of occurrence when it had grown dark I found Hussain Bakhsh and Mat. Malli deceased persons in a compromising position inside the Bhana of my house which is situated on the back of my house. A rifle belonging to the deceased Hussain Bakhsh was lying there. I picked it up. Hussain Bakhsh deceased and Mst. Malli deceased were lying on the ground. Hussain Bakhsh deceased had his baclt towards me. He got up and tried to snatch the rifle from me. The rifle was loaded, I fired at Hussain Bakhsh deceased.

22. Mst. Malli tried to run away and I fired at her too. I killed them under grave and sudden provocation. Mst. Sabu P. W. did not live with me nor was she present at the time of occurrence."

23. It may at once be stated here that so far as the time of occurrence is concerned, namely, deegarwela of the 3rd of May, 1971, it has received adequate support from the medical evidence which said that the two deceased had died about 24 hours from the time of the post-mortem examination. The post mortem examination on the bodies of the two deceased persons was held on the 4th of May, 1971, at 4-30/5-30 p. m. This belied the appellant's statement that the occurrence took place after sunset. Again the statement of the appellant that he had killed the two deceased persons with the gun of Hussar. Bakhah deceased was belied by the recovery of two empties from the spot which matched with the rifle Exh. P. 21 produced before the police by the appellant himself. Furthermore the medical evidence disclosed t' at Mst. Malli bad been injured by a fire-arm shot which entered the right side of abdomen 3' x from the umbilicus. The edges of the wound were inverted with blackening around. She had another wound which was a wound of exit on the lateral side of the left chest on back part in the middle. The size of this wound was 2 x 1'. The wound of Mst. Malli deceased, therefore., belied the appellant's statement that Mst. Malli had been fired at while shot tried to run away.

24. It may be mentioned here that the appellant led no evidence in suppose of his defence. It is true that the Chemical Examiner's report had disclosed that the vaginal swabs of Mst. Malli deceased were stained with semen. This, how ever, is of no significance in view of the fact that Mst. Malli was a married woman and her husband was living and they had a baby. There is nothing to show that the wearing cloth of Hussain Bakhsh deceased had any marks of semen.

25. There is, therefore, nothing on record from which it can be legitimately inferred that Hussain Bakhsh and Mat. Malli were actually engaged in sexual intercourse or were in similar compromising position when they were shot dead by the appellant. There is no evidence that the bodies of the two deceased persons were found naked.

26. The question, however, still remains for consideration whether the two deceased persons were in such a position as to have given grave and sudden provocation to the appellant. Regard being had to the fact that there did exist a suspicion on the part of the appellant as to the existence of a liaison between his wife Mst, Malli and Hussain Bakhsh deceased, and the evidenced that Mst. Malli had been sold by her previous husband to the appellant ands that P. W. Sonhara brother of Hussain Bakhsh deceased had been confronted with his statement before the committing Court that Mst. Malli was sold as "Kali", perhaps the likelihood of the two deceased having been killed by the appellant on some grave and sudden provocation could not be altogether excluded. In this view of the matter giving the utmost benefit to the appellant his case falls within Exception I to section 30,; of the Pakistan Peril Code. To this extent only I agree with my learned brother Cheema, J.

27. However, having given the appellant the benefit of Exception I toy section 300 his conviction under section 302 of the Penal Code can only be altered to one under section 304, Part I of the Penal Code for there is no doubt about the fact, and this has also been admitted by the appellant, that the two deceased persons were fired at with the intention of killing them.

28. Such intention receives full support from the medical evidence as well for both N the deceased persons had been shot at on the vital parts of their bodies, namely, the chest and the abdomen. I would accordingly alter the conviction of the appellant from one under section 302 of the Code to one under section 304. Part I of the Code for having caused the death of Hussain Bakhsh and Mst. Malli with the intention of causing death and sentence him on each count to suffer imprisonment for life.

29. DORAB PATEL, J. -I have had the advantage of reading the judgments to be pronounced by my brothers Salahuddin Ahmed, J. and Muhammad Afzal Cheema, J. Both Salahuddin Ahmed, J. and Muhammad Afaal Cheema. J. agree that the case of the appellant falls under the first Exception to section 300, P. P. C. but my learned brother Salahuddin Ahmed, J. is of the view that she sentence should be transportation for life whilst according to Muhammad Afzal Cheema, J. the sentence undergone by the appellant is sufficient. As I am in respectful agreement with the view that the case of the appellant falls under the first Exception to section 300, P. P. C. and that the appellant's conviction should be altered from section 302, P. P. C. to section 304, Part I, P. P. C., the only question which requires examination is of the sentence to be passed against the appellant.

30. As the appellant's case falls under the first Exception to section 300, P. P. C. it means that he killed his wife and her paramour "while deprived of the power of his control;" Therefore, in my humble opinion, the sentence of transportation is excessive, because transportation is one of the two possible sentences for a conviction under section 302, P. P. C. This is a sentence which has been frequently awarded by this Court for a murder committed under a provocation which is grave but not grave and sudden, and the judgment reported in Muhammad Ramzan v. The State and another v. The State (P L D 1966 S C 129) is one of the long line of cases in this respect. But, as the sentence of transportation is the proper sentence for a murder committed under grave provocation, save in some very exceptional circumstances, it cannot be the proper sentence for culpable homicide not amounting to murder, In the instant case, the appellant's plea is that he surprised his wife in a compromising position with her paramour, therefore, he shot dead both of them. The appellant could have but has not explained what he meant by the words "a compromising position." However, the evidence supports his plea to the extent that there was something amiss which amounted to grave and sudden provocation, and as h killed his wife and her paramour it cannot be said that there were any exceptional circumstances to warrant the imposition of the maximum penalty under the 1st Part of section 304, P. P. C. therefore, in my humble opinion, the sentence of transportation for life would be excessive. On the other hand, I also cannot accept Mr. Kasuri's submission that on the case-law the maximum sentence should not have been more than 5 years' R. I. But according to Mr. Kasurt, the trend of authority after 1947 was consistent and uniform and supported his submission that the appellant should not have been awarded a sentence of more than 5 years' R. I. because he bad proved that his wife's conduct amounted to grave and sudden provocation. In my opinion, the proposition thus advanced would mean reading into the 1st Part of section 304 P. P. C. a qualification which is not contained in it, but I would agree that the trend in our Jurisprudence for the last 40 or 50 years has been towards a more humane treatment of those who prove sudden and grave provocation and with his trend I fully agree. However, in view of the importance of the question I have examined the case-law and I would briefly refer to it.

31. In The State v. Akbar (P L D 1961 Lab. 24) the respondent had been convicted for killing the paramour of his sister and sentenced to imprisonment only till the rising of the Court. The State filed a revision in the High Court against the sentence on the plea that it was grossly inadequate. It was proved that the respondent bad caught his sister in the act of intercourse with her paramour and had killed only the paramour. On these facts as the respondent had been in prison as an under-trial prisoner for one year, a learned Single Judge of the High Court held that the sentence was adequate because a sentence of a few months' R. I. would have been sufficient. On the other hand, in Muhammad Sadiq v. The State (P L D 1966 Lab. 104) where the facts were similar, a Division Bench of the West Pakistan High Court awarded a sentence of 2 years' R. I. It is not necessary for me to examine which of these two judgments is to be preferred because there is no analogy between a case in which the accused catches his wife or a very near relation in the act of adultery, and a case in which the convict's plea is only that he found his wife in a compromising position. And, as the sentence to be awarded must have reference to the gravity of the sudden and grave provocation, I would refer here to two other interesting cases. In Abdul Khanan Watamir v. Emperor (A I R 1939 Lab. 436) and in Rahmat Ullah Khan v. Crown (P L D 1950 Lab. 109) the sentence awarded was 3 years. In Abdul Khana's case, the appellant had proved that on returning home late at night he had seen a man going out of the house where his wife was at that time, and as she abused him when he asked for an explanation, he killed her. Obviously, the provocation in this case was very grave because men are not expected to visit women, who are alone, late at night at their house. Next, as to Rahmat Ullah's case, although the facts were different, the provocation was very grave. It would appear that the deceased had tried to molest the appellant's wife and had stripped her of her clothes. The wife, however, managed to inform her husband, who shot dead the man who had outraged her modesty. Once again, there is no analogy between a case in which something amiss has been proved by the jealous husband and a case in which a man's wife has been stripped and assaulted.

32. However, I find that the facts in the instant case are very similar to those in Mews v. The State (P L D 1958 Lab. 468) in which a Division Bench of the West Pakistan High Court had awarded only 3 years' imprisonment. I am, unable to agree with the view taken in this case and in my opinion the sentence awarded was most inadequate. On the other hand, in Noukar Mouledino v. Emperor (A I R 1937 Sind 217) the sentence awarded was 10 years' R. I. and on the rather unusual facts of that case I would not say that the sentence awarded was very excessive.

33. Turning now to the instant case. In the light of this discussion even the sentence of 5 years' R. I. might have been inadequate. But the appellant was convicted by the Sessions Court nearly 5 years ago and it is not the case of the State that he has not earned the remission which are normally earned g by prisoners on account of good conduct, etc. In these circumstances I would not dissent from the view that the sentence undergone would be adequate. I, therefore, agree with my learned brother Muhammad Vial Cheema, J that the appellant should be released from jail if not required on any other charge.

ORDER OF THE COURT

34. In view of the majority opinion. the appeal is partly allowed, the conviction of the: appellant is altered to one under section 304, Part I but his sentence is reduced to the period already undergone. We direct that he may be released from the Jail forthwith if not required in any other case.

35. S. A. H. Order accordingly.