| Citation(s) |
|---|
| 1961 SLG 2102 1961 SLD 2102 = 1961 PLD 230 |
Supreme Court of Pakistan
Criminal AF peal No. 6 of 1961, decided on 15th March, 1961.
Presented By: A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar, B. Z. Kaikaus and Hamoodur Rahman, JJ
Khurshid Ahmad Advocate Supreme Court instructed by M. Saleem Attorney for Appellant. Mahmud Ali Senior Advocate Supreme Court (Rafiq Ahmad Sheikh Advocate Supreme Court was absent) instructed by Siddiq & Co., Attorneys for
Respondent No. 1. R. A. Jeremy Advocate Supreme Court instructed by Ijaz Ali Attorney for
Respondent No 2. Date of hearing : 15th March 1961.
Criminal AF peal No. 6 of 1961, decided on 15th March, 1961.
Presented By: A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar, B. Z. Kaikaus and Hamoodur Rahman, JJ
Khurshid Ahmad Advocate Supreme Court instructed by M. Saleem Attorney for Appellant. Mahmud Ali Senior Advocate Supreme Court (Rafiq Ahmad Sheikh Advocate Supreme Court was absent) instructed by Siddiq & Co., Attorneys for
Respondent No. 1. R. A. Jeremy Advocate Supreme Court instructed by Ijaz Ali Attorney for
Respondent No 2. Date of hearing : 15th March 1961.
GHULAM HUSSAIN-Appellant
VERSUS
(1) ZAINULLAH AND (2) THE STATE-Respondents
Law: Penal Code (XLV of 1860)
Section: S. 32.
Law: Evidence Act, (1 of 1872)
Section: S. 300
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 10th June, 1960, in Criminal Appeal No. 19 of 1900 : Murder Reference No. 4 of 1960). (a) Dying declaration---- -- -Declarant dying of firearm wound, 3 hours after making declaration, at Police Station, in First Inform ation Report-Omitting to name one of three eye-witnesses -Omission not of significance considering frame of mind of deceased at relevant time-Evidence Act (I of 1872), S. 32. (b) Penal Code (XLV of 1860)----- --S. 300 Exception 4-"Heat of passion"-"Unusual or cruel manner"-"Undue advantage " Accused provoking quarrel and challenging deceased to trial of strength, which started with hands-Deceased jumping at accused who fired single shot in chest of deceased from distance of 3 or 4 feet which resulted in death -Offence, held, not covered by Excep tion. (c) Sentence------- ----Conviction altered by Supreme Court from S. 304, P. P. C. to S. 302, P .P. C. -Capital sentence not awarded in view of length of time from incident (1-7-1959 to 15-3-1961) and of the accused having obtained `full expectation of life" from High Court's alteration of conviction from S. 302, P. P. C. to S. 304, P. P. C. (d) Special Leave to Appeal to Supreme Court------ ----Granted to consi der correctness of High Court's order altering conviction from S. 302, P. P. C. to S. 304, P. P. C., Part I-Constitution of Pakistan (1956) Art. 160 -Appeal entertained from relation of deceased person. JUDGMENT CORNELIUS, C. J.-This appeal comes before the Court by special leave granted to the appellant Ghulam Hussain, to con sider the correctness of an order of a Division Bench of the High Court of West Pakistan sitting at Peshawar whereby the convic tion of the respondent Zainullah under section 302, P. P. C. for the murder of one Ghulam Nabi, brother of the appellant Ghulam Hussain, was altered to section 304, Part I; P. P. C. and a sen tence of 10 years' imprisonment was imposed. The facts of the case are simple. There had been some days earlier a quarrel…