Law:

Section:

(a) Dying declaration---- -- -Declarant dying of firearm wound, 3 hours after making declaration, at Police Station, in First Inform­ation 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 Excep­tion. (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 consi­der 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 con­sider the correctness of an order of a Division Bench of the High Court of West Pakistan sitting at Peshawar whereby the convic­tion 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 sen­tence of 10 years' imprisonment was imposed. The facts of the case are simple. There had been some days earlier a quarrel between Zainullah and his brothers on one side and one Faqir Muhammad, cousin of Ghulam Nabi, on the other in the course of which Faqir Muhammad was beaten with fists and kicked. An attempt being subsequently made to bring the parties, who are residents of the same village, into harmony with each other, there was a…

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