P L D 1996 Supreme Court 1 (PLP)

SAJJAD ALI SHAH, CJ.‑‑‑ This appeal directly filed in this Court is directed against judgment dated 22‑12‑1994 of the High Court of Balochistan at Quetta, whereby. sentence of life imprisonment and fine of Rs. 5,000 or in default R. I. for two months awarded to the appellant by the trial Court for offence under section 302, P.P.C. is enhanced to death sentence.

2. Initially in the High Court Criminal Appeal No.61 of 1993, filed by the appellant, and Criminal Revisions Nos.73/93 and 79/93 filed by complainant Abdul Hadi and the State respectively for enhancement of sentence were heard together by a Division Bench, which announced split decision. Iftikhar Muhammad Chaudhry, J. allowed Criminal Revision No.73 of 1993 and enhanced sentence to death and dismissed the criminal appeal. It was observed by the learned Judge that in consequence no order was required to be passed in Criminal Revision No.79 of 1993. Amirul Mulk Mengal, J., dismissed the criminal appeal and gave finding that punishment of life imprisonment was legal, hence rejected the plea for enhancement of the sentence. Learned Judge dismissed both the criminal revisions. Matter was referred to third Judge, Mir Muhammad Nawaz Marri J., who agreed with finding in favour of death sentence proposed by Iftikhar Muhammad Chaudhry, J.

3. Briefly stated the relevant facts in the background are that there are two incidents which are inter linked. In fact the first incident gave rise to the second incident. First incident took place on 14‑9‑19~9 at 1‑25 p.m. at the crossing of Kansi Road, Quetta, in which a rikshaw driver picked up a dispute with one Kandhari and they grappled with each other. Abdul Hayee, father of appellant Abdul Haque, intervened to separate them; after which Kandhari fired a shot from his pistol, aimed at rikshaw driver, which hit Abdul Hayee who fell down injured and died subsequently. Abdul Haque, who was at that time driver of a Mazda Bus, was informed by another Mazda Bus driver about the incident and he went to the hospital where he saw the dead body of his father. He lodged F.I.R. No.86 of 1989 at Police Station Quaid Abad in which he, not being eye‑witness, stated that his father Abdul Hayee was shot at by some unknown person and he and his father did not have any enmity with any person. Muhammad Shafique son of Haji Muhammad Siddique was arrested and put on trial in the Court of the Additional Sessions Judge‑III, Quetta, where evidence was recorded and on 10‑2‑1993 when the case was fixed for announcement of judgment the second incident took place and at 11‑00 a.m. on that day in the Court‑room Muhammad Shafique in custody was brought in and was fired upon by Abdul Haque. Presiding Officer was not present in the Court‑room at that time.

4. Muhammad Shafique in injured condition was removed to the hospital and died on the way. Abdul Hadi, brother of deceased Muhammad Shafique, filed F.I.R. No. 18/93 at Police Station Civil Lines, Quetta, and after completion of investigation Sessions Case No.21 of 1993 was registered against Abdul Haque and Abdul Haleem. Learned Additional Sessions Judge II, Quetta, acquitted Abdul Haleem on the ground of lack of evidence against him and convicted Abdul Haque, for offence under section 302, P.P.C. and sentenced him to life imprisonment and fine of Rs. 5,000 or in default further imprisonment for two months. He was given benefit under section 382‑B, Cr.P.C. It is observed by the learned trial Judge in his judgment (page 307 of the paper book) as under:‑‑‑ "I award lesser penalty to accused Abdul Haque as discussed in 1990 PCr.LJ page 1109 and sentence him to life imprisonment and fine of Rs.5,000, and in default of payment of fine to undergo further imprisonment for 2 months." .

5. It may be pointed out that acquittal of Abdul Haleem by the trial court was not challenged in the High Court by either the complainant Abdul Hadi or the State. Both the complainant and State filed criminal revisions for enhancement of sentence of Abdul Haque from life to death as stated above which were taken up for hearing alongwith the appeal filed by Abdul Haque against his conviction and sentence which have been disposed of in the manner stated above, resulting in enhancement of sentence from fife to death as per opinion and finding of the two Judges in the High Court who did not agree with Amir‑ul‑Mulk Mengal, J., who has dismissed the appeal of the convict and also rejected the plea for enhancement and in other words upheld conviction and sentence of life imprisonment and fine awarded to appellant Abdul Haque by the trial Court.

6. In this Court direct appeal could have been filed as the High Court had allowed the revision and enhanced the sentence of the appellant from life imprisonment to death as contemplated under Article 185(2)(a) of the Constitution but instead of doing that criminal petition for leave to appeal was filed under Article 185(3) of the Constitution, as is apparent from the caption of the memorandum of the petition. In any case direct appeal is admitted by this Court for the reasons which are stated in detail in paragraphs 4, 5 and 6 which are reproduced here in extenso (pages 317 to 319 of the paper book):‑‑ There was reliable ocular testimony available on the record to hold the appellant responsible for causing the death of the deceased. The appellant alleged that while entering the Court‑room the deceased had sworn at him, saying that, if acquitted, he would commit Zina with his wife and with the wives of the other members of the tribe. The evidence led by the prosecution is not inconsistent with his version. There can be little doubt that these abuses, obnoxious as these were, could cause grave and sudden provocation to a man whose father had been killed by the person uttering the same. Under the former provisions of the Pakistan Penal Code, the case of the appellant would have squarely fallen under Exception I to section 300 thereof and the appellant could have been convicted only of culpable' homicide not amounting to murder.

5. Now section 300 stands replaced by a new section by the Criminal Law (Second Amendment) Ordinance, 1990. The Ordinance has been kept alive by a series of subsequent Ordinances. The new section 300 defines Qatl‑i‑Amd: 'Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that' it must in all probability cause death, causes the death of such person, is said to commit Qatl‑i‑Amd.' Unlike the old section, it contains no exception. The new section 302 provides the punishment for Qatl‑i‑Amd in the following terms: 'Whoever commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as Oisas; (b) punished with death or imprisonment for life as Ta'zir having regard to the facts and. circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunction of Islam the punishment of Qisas is not applicable.' The majority of the Judges in the High Court were of the view that "' the new section contained no exceptions, the plea of diminished liability on account of grave and sudden provocation was no longer available to an accused person. The view of the majority has been challenged on behalf of the appellant before us."

6. The plea of diminished liability in respect of offences relating to human body committed under grave and sudden provocation has been well recognized in the sub‑continent for more than a hundred years. 'There is a good reason for that: a person who commits culpable homicide out of compulsions, ethnical or otherwise, not brought about by himself, cannot in the matter of punishment be placed on the same footing as a cold‑blooded murder or a hired assassin. A serious question for consideration arises whether the Criminal Law (Second Amendment) Ordinance, 1990, was intended to do away with the preferential treatment that had always been accorded to a person who took another person's life under circumstances where he ‑had lost all self‑control. The question is of a great fundamental importance not only for the reason that it will affect a large number of pending cases but also because it has a bearing on the attitude and reflexes of the people under the most testing circumstances when their natural reactions compel them to act in a certain manner. It is therefore necessary that the question should be considered by a larger Bench consisting, preferably, of seven Judges. The matter may be placed before the learned Chief Justice for necessary orders."

7. Before we go into the question of amendments to section 300 and onwards in Pakistan Penal Code defining Qatl‑i‑Amd including newly amended section 302, P.P.C. and other consecutive sections in that context, it would be necessary to go into the factual aspect of the matter as Mr. Yahya Bakhtiar, learned senior counsel for the appellant has stated before us at the very outset that facturn of causing injuries to deceased Muhammad Shafique by appellant Abdul Haque through fire‑arm is not disputed ‑but plea is raised that shots were fired by the appellant at the deceased on account of grave and sudden provocation which was offered by the deceased in Pushto language and in that respect evidence recorded by the prosecution is also consistent with the defence plea. In the circumstances, appellant is entitled to the benefit/concession of grave and sudden provocation which is consistent With the principles of Islamic Jurisprudence in the case of homicide. It is therefore urged that the case of the appellant is covered by section 302(c), P.P.C. because in the case of the appellant, according to the Injunctions of Islam, punishment of Qisas is not applicable.

8. Perusal of F.I.R. No. 18/93 (page 236 of the paper book) shows that complainant Abdul Hadi, who is brother of deceased Muhammad Shafique has described in the FIR the factual background by stating that his brother Muhammad Shafique had picked up quarrel with Abdul Hayee, rikshaw driver, on Kansi Road about three years ago in which both of them had shot at each other and in the result Abdul Hayee became injured and died. His brother Muhammad Shafique was arrested and put on trial in the Court of III Additional Sessions Judge, Quetta. On the day of incident at 11‑00 a.m. case of his brother was called out and he went towards Bar‑room to bring their counsel Mr. M. Zafar and in the meantime he heard shot being fired, hence he returned to the Court‑room and saw police having apprehended Abdul Haque and Abdul Haleem, who were armed with pistols, while his brother Muhammad Shafique was lying on the ground in injured condition. He took his brother to the hospital but his brother succumbed to his injuries on the way. 9. ‑Mushtaq Hussain, Sub‑Inspector, took in hand investigation of the case and proceeded to Civil Hospital, Quetta, where dead body of Muhammad Shafique was lying. He came back to the place of incident where Amjad Ali, Head Constable, had already apprehended Abdul Haque and Abdul Haleem; from whom he had recovered pistol's and live cartridges alongwith two licences which were handed over to the Sub‑Inspector. Sub‑Inspector took into possession blood‑stained earth and recovered seven empties of 32 bore and two bullets (Sikay) from the place of the incident. He sent the crime weapons, empties and live cartridges to the Ballistic Expert whose report‑ as Exh.P/17‑G is on the record. Charge under section 302, Qisas and Diyat Ordinance read with section 34, P.P.C. was framed, to which Abdul Haleem pleaded not guilty and claimed to be tried whereas Abdul Haque pleaded guilty and took up the plea that he did so on account of sudden and grave provocation as deceased Muhammad Shafique threatened him that he would fuck his wife and wives of whole of his tribe if he was acquitted (word "fuck" is used in the judgments of the High Court and the trial Court at pages 18 and 292 of the paper book respectively).

10. Prosecution in support of its case examined in the trial Court as many as 17 witnesses. From them four are eye‑witness who saw act of actual firing by Abdul Haque at Muhammad Shafique with pistol and in the result Muhammad Shafique fell down injured. From them one is P.W.4, Yar Muhammad (page 96 of the paper book), Naib Oasid of the Court, who called out the case and saw Muhammad Shafique entering the Court‑room in police custody. He also saw Abdul Haque' .firing with his pistol at Muhammad Shafique who fell down injured on the ground. He caught hold of Abdul Haque with the help of the police and pistol was recovered from Abdul Haque. P.W.9 is eye‑witness Muhammad Aziz (page 131 of P/B) Police Constable, who brought in the Court‑room Muhammad Shafique in custody when the case was called out. He saw Abdul Haque standing up in the Court‑room and firing with his pistol at Muhammad Shafique. He helped in catching Abdul Haque. P.W.15, Akbar Ali Tahir (page 175 of the paper book) is District Attorney, who was present in the court‑room and saw Abdul Haque firing at Muhammad Shafique with his pistol. Latter fell down injured in ‑custody. Last eye‑witness is P.W.16, Amjad Ali, Naib Court (page 186 of the paper book), who saw the act of firing by Abdul Haque with his pistol at Muhammad Shafique who fell down injured in custody. This witness also helped in catching hold of Abdul Haque aid in snatching pistol from him. Ocular testimony as stated above is further supported by other witnesses who heard act of firing and came in the Court‑room to see Muhammad Shafique having fallen down injured in custody and Abdul Haque and Abdul Haleem having been caught or in the act, of being caught by the witnesses in the Court‑room.

11. In the trial Court in his statement under section 342, Cr.P.C., recorded on 17‑7‑1993, Abdul Haque stated that he would clarify this question in his statement to be recorded on oath when question was put to him that he had made indiscriminate firing with his pistol upon Muhammad Shafique in the Court‑room on the day of incident but admitted as correct when it was put to him in the next question that Muhammad Shafique Was seriously injured due to his firing from pistol and he fell on the ground. Abdul Haque also admitted that he was apprehended at the spot by the witnesses and the pistol was recovered from him. In his statement on oath under section 340(2), Cr.P.C., recorded on 21‑7‑1993, Abdul Haque deposed that Abdul Haleem. was his paternal uncle and used to attend the case hearings with him in the Court. Both of them used to come armed with licensed pistols as they were threatened by relatives of Muhammad Shafique and in consequence of such threats they were unable to produce their witness. Relatives of Muhammad Shafique were also pressing hard for compromise and were persuading the prosecution witnesses not to depose against Muhammad Shafique. In that connection he had filed an application before the Additional Sessions Judge, III. On the day of incident, he and Abdul Haleem were sitting in the Court‑room when Muhammad Shafique entered the Court‑room and when passed by him, Muhammad Shafique abused in low voice that he would fuck his wife and wives of his tribe if he was acquitted. Abdul Haque further deposed that on hearing this darkness fell before his eyes and he lost balance of mind and thereafter he did not know what he did.

12. Perusal of the evidence brought on the record shows that plea of defence of grave and sudden provocation taken by Abdul Haque to the effect that he was abused in filthy manner in respect of his wife by Muhammad Shafique, which provoked him, stands supported by two eye‑witnesses examined by the prosecution. P.W.4, Yar Muhammad (page 96 of the paper book) is Naib Qasid who deposed that on the day of incident at the relevant time the case was called out by Abdul Samad, Naib Qasid, and when Muhammad Shafique in custody entered the Court‑room, this witness was present in the Court‑room and had seen Muhammad Shafique passing nearby Abdul Haque. At the time of firing, this witness admitted that, he was present at a distance of two paces from Abdul Haque. Relevant portion from cross examination of this witness (page 98 of the paper book) is reproduced verbatim as under:‑‑ "It is correct that when deceased Shafique entered into Court‑room and when he was passing nearby accused Abdul Haque, he talked to accused Abdul Haq in Pushto language which I could not understand. it is correct that neither I speak Pushto nor I understand the same. It is correct that as soon as deceased Muhammad Shafique talked to accused Abdul Haq in Pushto, suddenly accused Abdul Haq stood up and he started ruing at deceased Shafique."

13. Another eye‑ witness who has supported the defence plea is Muhammad Aziz, Police Constable, who had brought in the Court‑ room Muhammad Shafique in custody and was therefore walking alongwith him when Muhammad Shafique was fired upon by Abdul Haque. This witness has admitted in his cross‑examination (page 132 of the paper book, as under:‑‑‑ "It is correct that the office of the Court is situated just after entrance into the Court‑room on western side. 1 know Yar Muhammad Naib Qasid. There was a distance of about 1 ft; between me and deceased Muhammad Shafiq. It is correct that when deceased Muhammad Shafique was passing nearby accused . Abdul Haq, deceased Muhammad Shafique said something in Pushto to accused Abdul Haque. I did not follow him as I do not understand Pushto. It is correct that as soon as deceased Muhammad Shafique said something in Pushto, accused Abdul Haq at once stood up and started firing at deceased Muhammad Shafique. It is correct that during firing accused Abdul Haq was also saying something in Pushto to deceased Muhammad Shafique.".

14. Both the above mentioned prosecution witnesses have clearly and in unambiguous terms supported the plea of sudden provocation on account of abusive language used by Muhammad Shafique in Pushto when he crossed Abdul Haque. This support is to the extent that something was stated in Pushto by Muhammad Shafique to Abdul Haque which was not understood by these witnesses. There is nothing in the evidence of these two witnesses to show that they had made gratuitous concession in favour of defence particularly when they had not said so in the examination‑in‑chief. Seemingly, in the examination‑in‑chief they had supported the prosecution case as it is and in the cross‑examination when they were questioned by the defence counsel in the trial Court, they have stated what transpired in their presence between Muhammad Shafique and Abdul Haque. Prosecution has not challenged these admissions which could have been done by seeking clarification in the re examination. These witnesses could have been disowned as having been won over by the defence and could have been declared hostile and cross‑examined. By not doing so, it appears that, the prosecution has not challenged admissions made by these witnesses in the cross‑examination which are favour able to the defence and support the plea that Muhammad Shafique said something in Pushto which was not understood by these witnesses and which had really provoked Abdul Haque, who stood up and fired from his pistol at Muhammad Sharique.

15. It is beyond dispute that abusive language used by Muhammad Shafique, which he whispered in Pushto while crossing Abdul Haque, as stated by him in his statement on oath recorded in the trial Court under section 340(2), Cr.P.C., as mentioned above ‑repeatedly, is in respect of wife and women of tribe of Abdul Haque which traditionally could not be tolerated by a Pathan. For that reason Abdul Haque felt suddenly provoked, took out his pistol, and fired at Muhammad Shafique. Contention was raised by the learned counsel for the complainant that the ‑murder had been committed in the Court room on the day when judgment was to be announced and Abdul Haque knew or anticipated that Muhammad Shafique was going to be acquitted, so he came My prepared armed with pistol and killed Muhammad Shafique in the Court room.

16. We had sent for record of Sessions Case No. 86/89, perusal of which shows that although on 10‑2‑1993 date was fixed for announcement of judgment but there is no judgment signed or unsigned by the Presiding Officer on the record. Order sheet, dated 10‑2‑1993 reads to the effect that when the accused was brought in the court‑room, he was fired upon and in injured condition was removed to the hospital and for that reason judgment could not be announced which was ready. Order sheet of the next date, that is, 13‑2‑1993, reads to the effect that because accused in the case had been killed, further proceedings were unnecessary and record was consigned to the record room. Record of Sessions Case 86/89 further shows that arguments were heard on 26‑12‑1992 and the next date fixed was 31‑12‑1992 and on that date judgment could not be announced as it was not ready and the case was adjourned to 10‑2‑1993 for announcement of judgment when the incident took place in which Muhammad Shafique was killed before the judgment could be announced.

17. Now if the contention raised on behalf of the complainant is correct that Abdul Haque had come fully prepared armed with pistol to take revenge because he anticipated that Muhammad Shafique would be acquitted, then even on the day of incident Muhammad Shafique had come in custody and was sitting outside the Court‑room since 9‑00 a.m. and Abdul Haque could have fired at him outside the Court‑room earlier in point of time. Reference can be made to the evidence of P.W.4, Yar Muhammad, Naib Qasid, who has stated (page 97 of the paper book) that deceased Muhammad Sharique alongwith other prisoners was present since 9‑00 a.m. in front of the Court‑room. P.W.9, Muhammad Aziz, Police Constable, who brought Muhammad Shafique in custody, has not given the exact time of bringing the custody to the Court premises from judicial lock‑up. In cross‑examination he stated that he had brought the prisoners before the Court at 10‑45 a.m., by which he meant that he brought Muhammad Shafique in the Court room at 10.45 a.m. as he stated that his police statement was recorded at 11‑00 a.m. Relevant portion from his cross‑examination is reproduced as under: "....The police recorded my statement at about 11‑00. ' I brought the prisoners before the Court at about 10‑45 a.m. The prisoners were waiting outside the. court for call in their cases." .

18. Now if it is assumed that Abdul Haque had come earlier in point of time than Muhammad Shafique and was waiting in the Court‑room and if he had come My prepared to kill Muhammad Shafique, then he could have come out from the Court‑room to find Muhammad Shafique sitting in custody outside waiting for turn of his case and could have killed him there. Alternatively, if Muhammad Shafique was already sitting in custody outside the Court‑room and Abdul Haque had come late and crossed Muhammad Shafique sitting outside the Court‑room, he could have killed Muhammad Shafique outside the Court‑room. Incident has taken place inside the Court room which clearly shows that something had happened when Muhammad Shafique crossed in front of Abdul Haque and said something provocative in Pushto on account of which Abdul Haque lost his temper and resorted to firing. There is enough evidence in support of defence plea of sudden provocation and such support came from evidence of two eye‑witnesses which fully supplements the assertion made by Abdul Haque in his statement on oath before the trial Court.

19. Abdul Haque has also taken the plea that he had come armed with his licensed pistol and has been doing so when he attended dates of hearing of the case for the reason that he apprehended danger from relatives of Muhammad Shafique who were trying to win over the witnesses so that compromise should be effected between the parties perforce. In this connection two defence witnesses were examined. D.W.1 is Nazir Ahmed, Reader to EA.C.9, Quetta, who brought in the Court original record and placed on record copies of Roznamcha and report of the police station, dated 28‑8‑1992, order sheets of the Magistrate, bail bonds for keeping peace in respect of Saifullah, brother of Shafique (page 305 of paper book) and Fard of property belonging to surety Abdul Manan. This witness admitted in‑ cross‑examination that there was no mention of name of Muhammad Shafique in txh. D/2. D.W.2 is Shoukat Ali, Criminal Clerk in the Court of Additional Sessions Judge, III, Quetta. He brought the original record of the case arising from F.I.R. No. 86 of 1989, produced copies of the order sheet of the Additional Sessions Judge II, dated 26‑12‑1992 and 31‑12‑1992, application moved by the Government Pleader dated 29‑6‑1991 and the application moved, by Assistant District Attorney, dated i4‑4‑1992 which are Exh.D/2, Exh.D/3 and Exh.D/4 respectively. original record was returned after perusal. This witness was not cross examined. Perusal of Exh.D/3 shows that the District Attorney had given up P.W. Shamsullah on the advise of complainant Abdul Haque. Exh..D/4 shows that the A.D.A. had given up witness Abdul Khalid as won over by the accused party and one other witness was dropped. It was in these circumstances that Abdul Haque apprehended danger from the relatives of Muhammad. Shafique and used to come armed to attend dates of the hearing in the Court.

20. It was contended by Mr. Yahya Bakhtiar that if Abdul Haque wanted to take revenge of murder of his father, he could have killed Muhammad Shafique outside the Court‑room on any one date as he used to come armed with his licensed pistol. We find sufficient force in the contention of Mr. Yahya Bakhtiar that plea taken by appellant Abdul Haque of grave and sudden provocation is substantiated by the record and finds ‑adequate support in the evidence of the two prosecution witnesses, whose evidence is discussed in detail above. In the majority judgment of the High Court supporting imposition of death sentence view is taken by Iftikhar Muhammad Chaudhry, J., that Abdul Haque has failed to prove his plea of sudden provocation and cannot take help from evidence of P.Ws Yar Muhammad and Muhammad Aziz for the reason that they have stated that they did not understand the conversation in Pushto between him and Muhammad Shafique, hence he has failed to discharge burden of proof as is contemplated under Article 117 of the Qanun‑e Shahadat.

21. Before I go into Article 117 and other co‑related Articles of Qanun‑e -Shahadat, I would like to state that Abdul Haque is entitled to get maximum support to his plea of sudden provocation from the evidence of P.Ws. Yar Muhammad and Muhammad Aziz in spite of the fact that they did not understand Pushto language in which Muhammad Shafique whispered something to Abdul Haque provoking him to resort to shooting. Evidence of these two witnesses, categorically admitting that something in Pushto was stated by Muhammad Sharique to Abdul Haque, is sufficient corroboration as the rest is to be presumed in favour of Abdul Haque who is accused in this case and is not to be in favour of the prosecution, Abdul Haque in the trial Court in his statement on oath (page 262 of the paper book) stated as under:‑‑‑ "As soon as deceased Muhammad Shafique came near me he abused me in low voice and stated that he will fuck my wife. He further stated that he would fuck my wife and wives of my tribe if he was acquitted. When deceased Muhammad Shafique was abusing me, at that time Muhammad Aziz and Yar Muhammad were standing near me. I learnt about names of Muhammad Aziz, Constable, and Yar Muhammad, Naib Qasid later on."

22. This fact is admitted by both the witnesses mentioned above that Muhammad Shafique did say something in Pushto when he passed in front of Abdul Haque, upon which Abdul Haque took out his pistol and fired shots at Muhammad Shafique. The mere fact that both the witnesses did not A understand Pushto and could not understand what was stated by Muhammad Shafique to Abdul Haque does not mean that their evidence does not lend requisite corroboration to the defence plea of sudden provocation. Article 117 of Oanun‑e‑Shahadat reads as under:‑‑‑ "117.‑‑(l) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

23. This Article lays down general principle that any person who comes to the Court and seeks its judgment dependent upon existence of the facts, then B he has to prove those facts. In other words he who asserts must prove the same. This is a general principle and as against that there is specific provision in the shape of Article 121 of Oanun‑e‑Shahadat which provides that when a person is. accused of any offence burden of proving the existence of C circumstances bringing his case within general or special exceptions in the Pakistan Penal Code or any other law, the burden is upon him and the Court shall‑presume absence of such circumstances. When specific provision is available in Qanun‑e‑Shahadat, the same will apply in this case. It would be pertinent to mention that Articles relating to burden of proof in Oanun‑e -Shahadat have been copied from Chapter VII of the Evidence Act, 1872. Articles 117 and 121 in Oanun‑e‑Shahadat are same as. sections 101 and 105 of Evidence Act, 1872.

24. In this case Abdul Haque, who is accused of murder, claims the plea of grave and sudden provocation and states that he was deprived of power of ion is to self‑control. In criminal jurisprudence general principle is that prosecution prove the case against the accused beyond doubt and this burden does not shift I from prosecution even if accused takes up any particular plea and fails in it. If D there is any room for benefit of doubt in the case of prosecution, the same will go ‑to accused and not to prosecution. Section 105 of the old Evidence Act came up for detailed examination in the case of Safdar Ali v. The Crown (PLD 1953 FC, 93) and it was held that it is the duty of the Court to review entire evidence that has been produced by the prosecution and defence and after examination of the whole evidence if ft Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, then such view would react on the whole prosecution case and accused would be entitled to benefit of doubt not as a matter of grace but as a right because prosecution has not proved its case beyond reasonable doubt.

25. This view has been followed by the Courts in this country consistently and is reiterated by this Court in the case of Ashiq Hussain v. State (1993 SCMR 417) in which it *is held that defence plea is to be considered in juxtaposition with prosecution case and in the final analysis after defence plea is proved or accepted then prosecution case would stand shattered and discredited. It would be enough if plea is substantiated to the extent of creating doubt in the credibility of prosecution case, benefit of which would accrue to the accused. In view of the interpretation of Articles 117 and 121 of Qanun‑e -Shahadat and their equivalent provisions in the shape of sections 101 and 105 of the Evidence Act, 1872 and case‑law on the subject, evidence produced in the instant case, as mentioned above, is adequate to say that appellant Abdul Haque has substantiated his plea of sudden provocation to which corroboration is lent by two P.Ws. Yar Muhammad and Muhammad Aziz, who are eye‑witnesses of the incident and were physically present close to the deceased when he was fired upon by the appellant and they have been believed by the prosecution. Appellant has also admitted their presence nearby at the time of the incident as stated by him in his statement on oath. The fact that they did not know Pushto and could not say what was stated by deceased Muhammad Shafique to appellant Abdul Haque would not detract from their credibility particularly when they have stated very specifically that after some words were uttered in Pushto by deceased appellant Abdul Haque was provoked, took out his pistol and fired shots at Muhammad Shafique. This is sufficient corroboration which serves the purpose to entitle the appellant to the benefit of plea of sudden provocation,

26. Now the question arises whether the plea of grave and sudden provocation is available to the appellant in this case after amendments to sections 299 to 338 contained in Chapter X VI of the Pakistan Penal Code, which were initially inserted by Criminal law (Second Amendment) Ordinance, 1990. It would be pertinent to state here that before amendments mentioned above section 299, P.P.C. defined culpable homicide and section 300 defined murder while Exception 1 in section 300, P.P.C. envisaged that culpable homicide was not murder if the offender, while deprived of the power of self‑control by grave and sudden provocation, caused the death of the person who gave the provocation or caused the death of any other person by mistake or accident. Further section 304, P.P.C. envisaged that whoever committed culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall be liable to fine, if the act by which. Death was caused was done with intention of causing death, or of causing such bodily injury as was likely to cause death. Second paragraph of section 304, which is normally described as Part 11 envisaged that whoever committed culpable homicide, not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act was done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death.

27. It would be necessary at this stage to explain the background in which the necessity arose for making amendments in the law mentioned above. Shariat Bench of the Peshawar High Court in the case of Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Peshawar) examined in detail section 302 and other sections of Chapter XVI of Pakistan Penal Code in connection with offences relating to human body and held that penalties prescribed in the said chapter were not in accordance with Injunctions of Islam inasmuch as sue offences could be condoned by pardon, or on payment of "Diyat" and particularly a non‑pubert could not be subjected to 'Qisas". Secondly, that the Government could not remit, reduce or cummute any sentence, which could be done by a Court in accordance with Injunctions of Islam. Thirdly, that there was not‑ going to be any violation of Injunctions of Islam if law provided 'Ta'azir in case of recedivist including the one accused of theft or murder other than accidental even if there was pardon by the heirs of deceased or payment of blood money. Fourthly, that there could be no "Oisas" or "Hadd" when accused is "non‑pubert but he could be awarded any punishment by way of "Ta'azir".

28. Federal Shariat Court disposed of 9 petitions titled Muhammad Riaz etc. v. Federal Government etc. (PLD 1980 FSC 1) and concluded in the order of the Court at page 59 of the report that the judgment of the Shariat Bench of the Peshawar High Court in the 'case of Gul Hassan Khan, declaring sections 54, 55 and 302 of the Pakistan Penal Code and sections 345(7), 401, 402 and 402‑B of Code of Criminal Procedure with the relevant parts of the Schedule repugnant to Injunctions of Islam, was binding and held the field. It was further held, inter alia, which is very relevant for the present purpose in this case, that sections 304 and 304‑A were repugnant because they did not also provide for composition and payment of 'Diyat. It is very clear that these two sections 304 and 304‑A were declared to be repugnant for no other reason except that they did not provide for composition and payment of 'Diyat'. Similarly, several other sections relating to hurt were declared to be repugnant of the same reason that they did not provide for composition ‑and payment of 'Diyat'. ‑

29. Against the decisions mentioned above of the Peshawar High Court and the Federal Shariat Court appeals were filed before the Shariat Appellate Bench of the Supreme Court, which were decided vide judgment titled Federation of Pakistan v. Gul Hasan Khan and others reported in PLD 1989 SC

633. Leading judgment was authored by Pir Muhammad Karam Shah, J, with whom Muhammad Afzal Zullah, J., Chairman, and Nasim Hasan Shah, J., agreed and also agreeing Shaflur Rahman and Maulana Muhammad Taqi UsmanL JJ, appended their separate notes.. Part of the Order of the Court is reproduced as under:‑‑‑ "Sections 299 t6 338 of the Pakistan Penal Code, 1860 which deal with offences against human body are repugnant to the Injunctions of Islam as they‑‑‑ (a) do not provide for the Qisas in cases of Qatl‑i‑Amd (deliberate murder) and. Jurooh‑ al‑Amd (deliberately causing‑ hurt) as is prescribed in the Holy Qur'an and Sunnah; (b) do not provide for Diyat in cases of Shibh‑ul‑Amd and Khata of both Qatl (murder) and Jurh (hurt) as prescribed in the Holy Qur'an and Sunnah; (c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qatl and Jurh; (d) do not provide that the offender may, be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases of Qatl (murder) whereby the Court can only award him a sentence of imprisonment by way of Ta'zir which may not extend to imprisonment for life; (e) do not exempt a non‑ pubert and an insane offender from the sentence of death in cases of murder; and (f) do not define the different kinds of Qatl and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah.‑

30. Remaining part of the Order of the Court is not reproduced for the reason that sections mentioned therein of the Pakistan Penal Code and Criminal Procedure Code are not relevant for the purpose of controversy in this appeal. What is very relevant for our purpose is that in the reported case Qatl‑i‑Amd is defined as deliberate and intentional murder subject to Qisas and at the same time Qatl‑i‑Khata is defined separately as envisaged in the Holy Quran (Suratunisa Ayat No.92) and made subject of payment of Diyat. Relevant paragraph from the leading judgment of Pir Muhammad Karam Shah, J, at page 659 of the report is reproduced verbatim in Urdu as under:‑‑‑

31. It is very clear from the paragraph reproduced above that a direction has been given to redraft sections 304 and 304‑A P.P.C. in such a way that they should first show as to what is punishment provided in the Holy Qur'an with reference to payment of Diyat and then, as permitted by Shariat Islamia, the Courts can punish under Ta'zir. Even in the Order of the Court in the reported judgment, with regard to sections 304 and 304‑A, P.P.C., it is stated in sub‑ paragraph (b) of paragraph I that they do not provide for Diyat in case of Khata as prescribed in the Holy Qur'an and Sunnah and also do not provide for compromise between the parties. In other words, it was directed in the reported judgment that sections 304 and 304‑A, P.P.C. could be retained in the Pakistan Penal Code after making suitable amendments in the language which should be improved in such a way to provide for Diyat and also for compromise between the parties.

32. While recording his conclusion, Maulana Muhammad Taqi Usmani, J., at page 682 of the report has held that sections 299 to 338 of the Pakistan Penal Code are repugnant to Injunctions of Islam with particular reference to sections 304 and 304‑A, P.P.C. as under:‑‑‑ This means that he has agreed with the conclusion in the am judgment to the effect that sections 304 and 304‑A, P.P.C. can be, retained in the Pakistan Penal Code with suitable amendments therein by adding punishment of Diyat as envisaged in the Holy Qur'an and making them compoundable. After amendments made in the provisions of the Pakistan Penal Code particularly in sections 299 to 338, now Qatl‑i‑Amd is defined in section 300 which reads as under:‑‑‑ "Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl‑i‑Amd." Qatl‑i‑Amd is punished by section 302, P.P.C. which reads as under:‑‑‑ "Whoever, commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be‑‑‑ (a)punished with death as Qisas; (b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty I ‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."

33. With promulgation of the Criminal Law (Second Amendment) Ordinance VII of 1990, large scale changes have been made in Chapter XVI of the Pakistan Penal Code and in the result, inter alia, section 318 is replaced and rephrased to provide for Qatl‑i‑Khata, which is defined as under:‑‑‑ "Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit Qatl‑i‑Khata." Section 319, P.P.C. after amendment provides that whoever commits Qatl‑i‑Khata by any rash or negligent act, in addition to Diyat, shall be punished with imprisonment of either description for a‑term which may extend to five years as Ta'zir.

34. Mr. Yahya Bakhtiar, learned Senior Advocate Supreme Court for the appellant, submitted before us that in the main judgment. of the High Court authored by Iftikhar Muhammad ' Chaudhry, J. at page 18 of the paper book, after narrating the defence plea, as stated in the statement of the appellant under section, 340(2), Cr.P.C., observation is made that no defence witness was produced which shows that defence plea of the appellant of grave and sudden provocation in respect of which he had examined D.W.1 Nazeer Ahmad, Reader to EA.C.‑9, Quetta and D.W.2 Shoukat Ali Criminal Clerk in the Court of the Additional Sessions Judge‑III, Quetta, who produced documents to show that the appellant apprehended danger from the relatives of Muhammad Shafique who were trying to win over the witnesses, has not been considered. Defence plea was also raised that the appellant used to bring pistol in the Court‑room on account of fear from the relatives of Muhammad Shfique. Defence plea and evidence of witnesses produced by the appellant have already been discussed in detail in earlier paragraphs of the judgment, hence it will not be necessary to repeat discussion of that ‑evidence particularly when the finding is in unequivocal terms that the appellant fired at Muhammad Sharique who had said something in Pushto while passing in front of the appellant on account of which appellant was provoked and resorted to firing. Question now for consideration is whether principle of diminished liability on the ground of sudden provocation is allowed under the new amended law in the relevant chapter of the Pakistan Penal Code mentioned above.

35. Mr. Yahya Bakhtiar submitted before us that Muhammad Shafique had committed murder of father of appellant Abdul Haque and, therefore, as permitted under Islam, Abdul Haque had a right to take life of Muhammad Shafique by way of Qisas. On query from 'the Court as to who would decide this question that appellant was entitled to take life of the deceased particularly when the case was pending in the Court and the judgment was yet to be announced, learned counsel replied that on the basis of material and evidence produced in the Court, appellant was sure that Muhammad Shafique, who was challaned in the Court on the charge of murder of father of the appellant, had committed the murder, hence he was entitled to Qisas. It was pointed. out to the learned counsel that in the case of murder of father of the appellant, FIR was lodged by the appellant who was not eye‑witness and therefore in FIR name of Muhammad Shafique as culprit was not mentioned and because appellant Abdul Haque had learnt story of the incident from another driver, he stated in the F.I.R. that the murder was committed by some unknown person and that the complainant or his father did not have any enmity with any person. In such circumstances, it was for the Court to give finding whether Muhammad Shafique had committed the murder or not. One has to wait till proceedings in the Courts are brought to an. end with finality with regard to declaration of entitlement to Mas. Until that stage is reached, no person can be allowed to take law in his own hand and kill another person by way of Qisas. Even otherwise Qisas is to be executed by a functionary of the Government as required under section 314, P.P.C.

36. In this context; Mr. Yahya Bakhtiar stated that he was merely describing the state of mind of the appellant inasmuch as his father was murdered by a person who was being tried by the Court and on the day when judgment was going to be announced and before it was announced Muhammad Shafique walked into the Court and abused him in Pushto in respect of his wife and wives of his tribe which offered sudden and grave provocation on' account of which he resorted to firing. Learned counsel referred to Enforcement of Shariah Act, 1991 and submitted that this Act after its enforcement provides for supremacy of Shariah to the effect that Injunctions of Islam as laid down in the Holy Qur'an and Sunnah shall be the supreme law of Pakistan. He referred to section 2 in which Shariah is defined to mean Injunctions of Islam as laid down in the Holy Quran and Sunnah and also referred to explanation which is to the effect that while interpreting and explaining Shariah the recognised principles of interpretation and explanation of Holy Qur'an and Sunnah shall be followed and expositions and opinions of the recognised jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration. Learned counsel also referred to section 4 of the said Act which envisaged that while interpreting the statute law, if more 'than one interpretation is possible, the one consistent with Islamic Principles and jurisprudence shall be adopted by the Court and where two or more interpretations are equally possible, the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.

37. Propounding supremacy of the law with particular emphasis on the Notion of Judicial Independence as envisaged in Islam, Mr. Yahya Bakhtiar has referred to us Islamic Jurisprudence written by C.G. Weeramantry, Professor of Law, Monash University, Australia, who is former Justice of the Supreme Court of Sri Lanka. It is stated in the said book at page 79 that in Islam law stood at the apex of social organisation and those who administered the law were likewise elevated. In the early days of the Islamic State this was reflected in the pre‑eminent position of the Judge, to whom even the ruler had to refer dispute to which the later was a party. Paragraph cited by the learned counsel from the same book is reproduced as under:‑‑‑

"A caliph who had a personal dispute could not be a Judge in his own cause and interesting records exist of the references by the Second Caliph, Omar, and the Third Caliph, Othman, of their personal disputes to the Qadi. A reference to Caliph Omar's case before the Qadi will be found in the next section. Caliph Othman's sally into the filed of litigation resulted in a verdict adverse to the Caliph. The Caliph, appearing personally before the Court of the Qadi of Kufa, in an action to recover a suit of armour from a Jew, was unsuccessful. His claim was dismissed on the ground that the only witnesses he had in support of his claim were his slave and his son‑‑ persons who were not competent witnesses under Islamic Law. It is said of the Jew that he was so moved by his success that he gave the armour back to the Caliph."

38. Mr. Yahya Bakhtiar has also referred to the‑Islamic Criminal Justice System written by M. Cherif Bassiouni, Editor. On the question as to how Shariah is to be interpreted, he has referred us to the paragraph in which contribution made by famous Judge Abu‑Youssef belonging to Hanafi school of thought is enlogised, who pioneered protection of human rights long before the idea occurred to others in their legal system. What he advocated then is today compatible with many of the rights enunciated in the Universal Declaration of Human Rights and other international human rights instruments. In the same paragraph there is reference to late Abdul Kader Odeh, who in 1950 produced two volumes comparing the System of Islamic Criminal Justice to contemporary positive systems. Both jurists with distance of twelve‑centuries underscored the fact that the Shari'a can and must be interpreted in light of an enlightened and humane criminal justice policy and that Shari'a must be understood as such and not as many see it exclusively through the eyes of writers many centuries departed. Nothing inherent to Islam precludes the embodiment of the Shari'a in contemporary codes whether they concern substantive criminal law, criminal procedure or the law of corrections.

39. In the same book on the subject of consequences of the Principles, our attention is drawn to the paragraph (printed page 67) in which it is stated that in Islamic Law the burden of proving innocence is not imposed on the accused, for the application of the presumption of innocence necessitates that the accused be charged with the duty of proving his accusations. The defendant is not required to produce negative evidence. In Islamic Law, a conviction must be founded upon assurance and certainty of guilt and not on mere probability. Hence any doubt is resolved in favour 6f the accused. If the Judge has reasonable doubt of guilt based on all evidence before him, he must conclude that the accused is not guilty. This principle is based on the saying of the Prophet (p.b.u.h.): "Prevent punishment in case of doubt. Release the accused if possible, for it is better that the ruler be wrong in forgiving that wrong in punishing." In the same book on the subject of Guarantees of the accused (printed page 99) relevant paragraph is reproduced as under:‑‑ "Islam is concerned with protecting man 's basic rights. In this Islam does not discriminate between Muslim and non‑Muslim. More precisely, there are ‑minimum rights which all persons enjoy by virtue of being human beings. These can be abridged only by reason of some higher interest that transcends these protections. We find this imperative in the words of God, 'Verily we have honoured the children of Adam." The rights which are acknowledged and protected by Islam are many, the most important of which being the rights to life, bodily safety, honour of self and women, individual freedom, right to own property and home, and the right to privacy. Qu'ranic verses and Hadiths provide overwhelming proof of the existence of these basic rights. Safeguards for these rights are thus fundamental to the Shari'a, and the State is responsible for protecting them through the implementation of the Shari'a."

40. Mr. Yahya Bakhtiar has also cited before us "General Principles of Criminal Evidence in Islamic Jurisprudence" by Ma'amoun M., Salama. On the subject of the Principle of Innocence and its Impact on the Burden of Persuasion, a short paragraph, which is relevant, is reproduced as under‑.‑‑‑ "These rules are revealed in the Qu'ranic verse: 'And those who produce not four witnesses to support their allegation, flog them with eighty stripes.' Surat al Nur XXIV:

4. God also warns every man who falsely accuses his wife of adultery: 'Give proof or you will receive a Had penalty on your back.' The rules are also found in the following Hadith of the Prophet: 'If men were to be granted what they claim, some will claim the wealth and lives of others. The burden of proof is on the proponent; an oath is incumbent on him who denies.' The Prophet also stated: 'Your evidence or his oath.' These fundamental principles run throughout Islamic Law. They are especially important in Islamic Criminal law. They are especially important in Islamic criminal law as they embody the presumption of innocence and place the burden of proof on the accuser."

41. Mr. Yahya Bakhtiar has cited Ta'azir Crimes authored by Ghaouti Benmelha. It is stated by the author that in Muslim society, writers of the four major legal schools of thought have observed that Islamic criminal law is based ‑on individualizing punishment. Crimes classified within first category are punished with penalties called Hadd, which means a limit or constraint in the case established by Allah, t6 prevent the commission of acts which he has forbidden. These crimes are based on the belief that human nature is often tempted by situations which provide immediate gratification but obscure the rewards and threats of the hereafter. The Hadd is a legal or mandatory penalty in contrast to the discretionary penalty of Ta'azir, which is left to the assessment of the ruler or Judge. At printed page M the subject is Grounds for Mitigating Punishment I and the relevant paragraph is reproduced as under:‑‑‑ "It was previously stated that the Judge maintains power to appraise the degree of punishment which he may impose on the criminal through Ta'azir by taking into consideration the nature and gravity of the crime and the personality of the offender. The choice of punishment thus results from the Judge's assessment of the acts themselves. Similarly, the grounds for mitigation are investigated thoroughly by the Judge in each case. Thus for example, the Judge considers the Physical condition of the criminal which might involve hunger, disease or deterioration of the offender's mental faculties and cause him to break the law because of the necessities imposed on him by nature. He must also consider the moral state of the individual, which. may result from physiological, .pathological or psychological conditions, or from a physical or moral constraint or duress exercised over the party by another, or, finally, as a result of self‑defence.‑

42. Mr. Yahya Bakhtia'r has also quoted from book titled "Islam Ka Foujdari Qanun" written by Abdul Kadir Odeh Shaheed and translated by Sajidur Rehman Kandehlvi, MA., and has brought to our notice a verse of the Holy Qur'an, its translation and a Hadith which are reproduced as under:‑‑

43. At printed page 502 the paragrpah, which is pertinent in nature, is reproduced as under:‑‑‑

44. The pith and substance of the arguments of Mr. Yahya Bakhtiar is that under the spirit of Islamic Law appellant was entitled to Qisas against deceased Muhammad Shafique as the latter had murdered appellant's father, hence appellant was allowed to take fife of Muhammad Shafique. Appellant patiently waited for result of the case and on the day of incident while sitting 'in the Court‑room he was suddenly provoked as Muhammad Shafique while passing in front of him abused him in respect of his wife and wives of his tribe which was traditionally beyond toleration of a Pathan and for that reason he took out pistol and fired at him. Although the appellant used to come to the Court‑room armed with pistol but he did not kill for revenge which he could have done earlier in point of time. In the circumstances, Islamic right of Qisas having been executed by the appellant himself, he is entitled to acquittal. If this argument does not find favour with the Court, alternatively case of the appellant would fall under section 302(c), P.P.C., as it now stands because against the appellant Qisas is not applicable. In support of his contentions, learned counsel has cited case‑law and has heavily relied upon the decision of the learned Single Judge in the High Court in' the case of Ali Muhammad v. State (1993 PCr.LJ 557) by way of analogy in which husband, who found with his wife another person committing Zina had killed him, was acquitted by the High Court on the ground that he had not earned liability of Qisas or Diyat or Ta'zir.

45. On the other hand Ch. Ejaz Yousaf, learned Additional Advocate General appearing on behalf of State, took up the stand that the case in hand is nothing less than Qatl‑i‑Amd punishable with Qisas as such would fall under section 302(a), P.P.C. for the reason that plea of grave and sudden provocation is an afterthought and is not proved and the appellant had taken revenge? of the murder of his father from Muhammad Shafique before announcement of judgment as the' appellant anticipated that deceased would be acquitted as there was no proof of the charge. In such circumstances, appellant had taken law in his own hands and committed murder of a helpless person who was in custody and was handcuffed and could not do anything in his defence. It was also submitted by him that after promulgation of the Criminal Law (Second Amendment) Ordinance, I of 1990, plea of diminished liability on the ground of sudden and grave provocation for use of abusive language is not available and secondly is not proved. In support of the contention that ground of grave and sudden provocation on the basis of abusive language is not covered by Qatl Khata, he has cited Fitawa‑i‑Alamgiri Volume 9, from pages 295 to 303 in which instances are quoted in detail as to what constitutes Qatl‑i‑Amd and other categories of Qatl including Qatl‑i‑Khata. Learned Additional Advocate General also referred to 'Kitabul Fiqah', Part 5, authored by Abdul Rehman translated by Manzoor Ahsan Abbasi and issued by Ulema Academy, Auqaf Department, Punjab, Lahore. In this book there is narration of instances of Qatl‑i‑Amd in which Qisas cannot be imposed and situations are mentioned in which Qatl is treated as Qatl‑i‑Khata but no instance is mentioned in which Qatl is treated as Qatl‑i‑Khata on the ground of grave and sudden provocation on account of abusive language. Another book cited is Qisas‑wa‑Diyat by Muhammad Mian Siddiqui published at Institute of Islamic Research, International Islamic University, Islamabad in which 31 different modes of Qatl are mentioned in which Qisas cannot be imposed but they do ‑not contain any instance in which Qatl is treated as Qatl‑i‑Khata on account of grave and sudden provocation caused by abusive language.

46. Mr. M. Zafar, learned A.S.C. appearing for the complainant/ respondent No.2, submitted that this case is covered by section 302(b), P.P.C. which provides ' for punishment of death or imprisonment for life as Ta'zir if the proof, as contemplated under section 304, P.P.C., is not available. In support of his submission he has cited the judgment in cases of Federation of Pakistan v. Gul Hasan Khan (PLD 1989 SC 633), Abdul Waheed alias Waheed v. State (1992 PCr.LJ 1596) and State v. Muhammad Hanif (1992 SCMR 2047).

47. In the light of what is, stated above, the correct legal position is that after amendments made in Chapter XVI of the Pakistan Penal Code, the revised law as it now stands is to be construed in letter and spirit in order to find out as to under what particular section and provision this case would fall keeping in view the defence plea raised. There is no denying the fact that previously there was offence under section 304, P.P.C. which catered for a situation in which homicide not amounting to murder was made punishable with sentence lesser than death and in a case to a term which may extend to ten years, or with fine, or with both if the act was done with knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death, which covered a case of grave and sudden provocation. Recommendation in the judgment of the Shariat Appellate Bench of this Court (PLD 1989 SC 633) is to the effect that section 304, P.P.C. was not consistent with Injunctions of Islam for the reason that it did not provide for punishment of Diyat and was not made compoundable as required under Islam. It is also not necessary at this stage to go into the constitutionality of the amendments on any other ground. What is to be seen right now is that in this case with the plea as it ‑is taken which provision 6f the amended law in the Pakistan Penal Code will apply. It is also clear from the books and treatises cited on the subject above that plea of grave and sudden provocation on the ground of abusive language does not bring the case within the four corners of Qatl‑I-Khata as contemplated under section 318, P.P.C., scope of which is limited to causing death of a person either by mistake of act or by mistake of fact which could be termed as murder by mistake without there being any intention of committing murder at all.

48. In this case incident took place on 10‑2‑1993 at 11‑00 a.m. in the Court‑room and amendments were made in Chapter XVI of the Pakistan Penal Code relating to offences affecting the human body by the Criminal Law (Second Amendment) Ordinance, 1990, hence it goes without saying that the amended law will govern this case. Next case in line which requires consideration is 1992 Pakistan Criminal Law Journal 1596 titled State v. Abdul Waheed and another decided by the Supreme Appellate Court in which the judgment is penned by Nasirn Hasan Shah, J., of this Court as Chairman (as he then was). In that case section 302(a) and (c), P.P.C. as substituted by the Criminal Law (Fourth Amendment) Ordinance XXX of 1991 have been examined and it is held that grave and sudden provocation is not an exception per se and the punishment of Qisas, where QAt1‑i‑Amd is committed under grave and sudden provocation, can be mitigated only if proof of Zina is produced, which conforms to the required standard of evidence prescribed under the Islamic Injunctions. In other words, Qatl‑i‑Amd by husband will attract punishment lesser than Qisas only if proof of commission of such Zina exists which satisfies required standard of evidence prescribed under Islamic Injunctions.

49. Briefly stated the facts of the reported case are that Abdul Waheed alongwith Khalil Ahmad fired upon Shaukat Nizami with gun and caused his death. Incident was seen by two eye‑witnesses. Trial Court doubted presence of two eye‑witnesses and on account of lack of corroboration acquitted Khalil Ahmad and convicted Abdul Waheed under section 302(c), P.P.C. and sentenced him to R.I. for seven years relying upon his admission in his statement recorded under sections 342 and 340(2), Cr.P.C. Claiming that he fired at deceased on account of grave and sudden provocation because he saw his sister in compromising position with the deceased. Appellate Court formed the view that except for the bare statement of Abdul Waheed no other evidence was produced by him in respect of his plea that Zina was being committed by deceased with his sister, hence punishment lesser than Qisas was not called for as evidence produced by Abdul Waheed was not of required standard as prescribed under Islamic Injunctions and in the result the Appellate Court set aside the conviction and sentence of Abdul Waheed awarded by the trial Court and found him guilty under section 302(a), P.P.C. and sentenced him to death as Qisas. Reliance is placed by the Appellate Court on the judgment in the case of Federation of Pakistan v. Gul Hasan Khan (supra) in which it is held that in Qatl‑i‑Amd Qisas will not be imposed in the case when husband sees his wife in the act of Zina with another person and kills that person,‑ whose punishment even otherwise under Islam is death by stoning.'

50. To that extent, there is no room for any cavil so far legal position is concerned as propounded in the judgment of this Court in the case of Gul Hasan Khan and additionally in the reported case under consideration mentioned in the above paragraph, on the question of appreciation of evidence, reliance is placed on the judgment of this Court in the case of Mohib Ali v. State (1985 SCMR 2055) and observation which is relied upon is quoted as under:‑‑ "A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. If such pleas without any evidence are accepted, it would give a licence to people to kill innocent people."

51. The facts of the case of Mohib Ali (supra) are that he and deceased Haji Khan alongwith Ghulam Mustafa on the day of incident at 2‑30 p.m. were sitting in the shop of Ali Sher, First Haji Khan left for his village at about 3‑00 p.m. followed by Mohib Ali. Immediately thereafter report of gunfire was heard at 3‑30 p.m., upon which Ghulain Mustafa came and saw near the house of Mohib Ali, Haji Khan lying injured and in his presence Mohib Ali, who was armed with gun, fired second shot at Haji Khan. Mohib Ali also declared that he had killed Haji Khan on account of his Siahkari with Mst. Qabila wife of the ‑former. Several villagers gathered. Mohib Ali escaped from the spot with his gun. He went to the police station and surrendered and his judicial confession was recorded. He stated in the judicial confession that on the day of incident at 11/12 p.m. he returned home after making purchases and saw his wife Mst. Qabila in compromising position with Haji Khan. On seeing them he took up his single barrel shot gun and fired at Haji Khan who started running. He also fired at his wife who ran away to the house of Ali Sher. Trial Court believed testimony of eye‑witnesses Ghulani Mustafa and Abdul Qadir corroborated by P.Ws. Sher Ali and Abdul Rasool who reached the spot after the incident, before whom Mohib Ali admitted having killed Haji Khan due to his Siahkari with his wife. Trial Court also relied upon admission in judicial confession. In his statement under section 342, Cr.P.C. Mohib Ali changed his version and stated that he went to the shop of Ali Sher at 3‑00 p.m. were Haji Khan and Ghulani Mustafa were sitting. First Haji Khan left the shop and then Mohib Ali went to his house and saw his wife and Haji Khan in objectionable position as they were naked. He took his gun and fired due to Ghariat as a result Haji Khan died at the spot and his wife escaped. He went to the police station with his gun and surrendered. Trial Court did not believe plea of grave and sudden provocation in spite of the fact that Mohib Ali produced his wife as defence witness and convicted him under section 302, P.P.C. and sentenced 'him to death. On appeal High Court upheld conviction under section 302, P.P.C. but altered sentence from death to life imprisonment. This Court on the evaluation of the evidence agreed with the trial Court that it was a pre‑planned murder and plea of grave and sudden provocation, not being substantiated in spite of evidence of wife of Mohib Ali as defence witness, was disbelieved for the reasons, inter alia, that the appellant changed his version of judicial confession in his statement under section 342, Cr.P.C. and made assertion that he saw his wife and deceased in naked position which was belied by the fact that the dead body of Haji Khan was not naked but was found with clothes on outside the house of the appellant and not inside. In such circumstances, observation was made by the Court that mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation.

52. Supreme Appellate Court of Pakistan examined again scope of section 302, P.P.C. after amendment in the case of State v. Muhammad Hanif and others 1992 SCMR 2047 and judgment is authored by Shafiur Rahman, J. of this Court as Chairman (as he then Was). Facts of that case are that Muhammad Khurshid, brother of Muhammad Hanif, was murdered in which deceased Muhammad Ashraf alongwith his brothers was facing trial. On the day of the incident, Muhammad Hanif, armed with Chhuri alongwith his accomplices, attacked Muhammad Ashraf who became injured and died after sustaining as many as 17 incised injuries. Recovery of weapons was made. In the trial Court two eye‑witnesses were examined. Muhammad Hanif took blame upon himself and admitted his participation in the occurrence by excluding others. He took up the plea that he caused death of Muhammad Ashraf on account of sudden and grave provocation as his wife was disgraced and dragged by deceased on the day of the incident. Trial Court disbelieved presence of the two eye‑witnesses who were held to be the chance witnesses and noted failure of the prosecution to produce independent witnesses as incident took place in the Bazar and trial Court also found medical evidence to be inconsistent with number and nature of the injuries attributed to the accused persons by the eye‑witnesses. Recoveries were also not believed. Trial Court in such circumstances acquitted other co‑accused and convicted Muhammad Hanif under section 302(c), P.P.C. and awarded him R.I. for ten years and fine of Rs.25,000 as Arsh to the heirs of the‑ deceased or in default R.I. for two years. Appellate Court, after evaluation of the evidence and scrutiny of the legal position, concluded that when prosecution evidence is rejected in totality, statement of accused is to be accepted in totality and without scrutiny. It was so held for the reason, inter alia, that section 302, P.P.C. after amendment, being substantive law, does not provide any exception to cover plea of grave and sudden provocation, hence prosecution has to prove whether it is Qatl‑i‑Amd liable to Qisas or not liable to Qisas or liable to Ta'zir. It is further held that rejected evidence cannot be supplemented by corroboration and While considering that aspect of the case, effect of finding on that point in the case of State v. Abdul Waheed (supra) was considered. For ready reference it may, be pointed out at the cost of repetition that in the case of State v. Abdul Waheed evidence of the two eye‑witnesses was not ‑relied upon and even then corroboration in the statement under section 342 and statement on oath of accused was used and found satisfactory excluding plea of provocation and sentence of R.I. for 7 years was substituted by death. Shafiur Rahman, J. (as he then was) while comparing case in hand with the case of Abdul Waheed distinguished the latter case rightly on the ground that once ocular evidence is rejected, it cannot be supplemented by any other independent corroboration and in such circumstances if conviction is to be based upon the statement of the accused, then it is to be accepted in entirety without excluding any part of it. In support of the proposition reference can be made, to the cases of Rahim Bakhsh v. Crown (PLD 1952 FC 1) and Sultan Khan v. Sher Khan (PLD 1991 SC 520). Appeal in the case of State v. Muhammad Hanif was dismissed upholding conviction under section 302(c), P.P.C. and sentence of 10 years' R.I. with payment of Arsh and before we part with this judgment, paragraph 9 thereof, which is very pertinent, is reproduced as under:‑‑ if we go by the strict Injunctions of Islam we rind that punishment of death is permissible where under Hadd the offence already committed or‑ sought to be committed by the person is one liable to Hadd to death. If this strict view of the Injunctions of Islam ii kept in view, then if an unmarried person commits Zina‑bil‑jabr with one's wife, the husband will have no right even though the event takes place in his sight, to murder the Zani/accused of that crime because Zina bil‑jabr by or Zina by itself by an unmarried man is not punishable with death. The other requirement of the law that the person who is done to death must be Maasoom‑ud‑Dam is stronger repugnance. The Qura'nic verse 34 of Sura‑al‑Nisa starting with has been translated as and interpreted in Taqfhim‑ul‑Our'an (Volume 1) at page 349, as hereunder: A person like the deceased who suffered from a prohibition under Qura'nic Injunctions not to touch or deal with a lady who was not Mehram to him could not so disgrace and insult as to evoke the corresponding duty of the husband to protect and guard the wife. Such a man under the Injunctions of Islam cannot be said to be Maasoom -ud‑Dam when he is indulging in such an activity. Be it‑a person disgracing a lady or committing Zina‑bil‑Jabr with her being unmarried, it is not provocation but an exercise of the right conferred on the husband under the express words of the Qur'an itself. Qisas Will not be liable in such a situation."

53. Last case in the series of the cases cited before us needing comment as it has been heavily relied upon by, Mr. Yahya Bakhtiar is judgment o Lahore High Court, learned Single Judge, Ausaf All Khan, J. (as he then was) in the case of Ali Muhammad v. State, reported in 1993 PCr.LJ

557. Facts in the background of the reported case are that appellant Ali Muhammad suspected that his wife and deceased Ramzan were having an illicit affair. As per prosecution case on the night of the incident appellant and four other co accused picked up Ramzan, put cloth round his neck, and took him to Dera of the appellant where he was strangulated and also given Danda blows. Trial Court disbelieved two eye‑witnesses produced and believed plea of defence version of the appellant who admitted that he found his wife being disgraced by Ramzan on the night of the incident, so he picked up Chadar of the deceased and put it around his neck and gave him Danda blows. Trial Court acquitted co‑accused and convicted the appellant for offence under section 304, Part 1, P.P.C. and sentenced him to R.I. for seven years with fine of Rs.25,000 or the default R.I. for three years. During hearing High Court noticed the fact that the incident took place after promulgation of Qisas and Diyat Ordinance, 1990 Which is also called Criminal Law (Second Amendment) Ordinance, 1990, hence the case was not governed by section 304, Part I. P.P.C. but was governed by the amended law. Incident in that case took place on the night between 23/24‑1‑1991 and for the first time Criminal Law (Second Amendment) Ordinance came into force on 5‑9‑1990, hence‑the case was governed by section 302(c), P.P.C. after amendment. Before expiry of the first Ordinance, another ‑Ordinance was promulgated and in this manner several Ordinances were promulgated in order to ensure constant operation of the proposed amendment made in the law. In any case, High Court took the View that under section 302(a), P.P.C., Qatl‑i‑Amd IiAble to Qisas takes place only when person murdered is not liable to be murdered and is Maasoom‑ud‑Dam and in the reported case appellant had right to defend his wife from being disgraced as the Courts are to be guided by Injunctions of Islam as laid down in the Holy Qur'an and Sunnah as contemplated under section 338‑F, P.P.C., which permits the Courts to assess the culpability of the guilt of the accused not only under the statutory provisions of law but also under the Injunctions of Qur'an and Sunnah. High Court further held that since prosecution evidence was rejected by the trial Court and for conviction reliance had to be placed on the statement of the accused then that statement was liable to be accepted in totality. In support of the proposition reliance was placed upon the judgment of Shaflur Rahman, J. (as he then was) in the case of State v. Muhammad Ranif 1992 SCMR 2047. In the result, High Court for reasons stated therein accepted the appeal and acquitted the appellant on the ground that as custodian of honour of his wife he had right to kill deceased who was engaged in sex act with the wife of the appellant and for that reason appellant had not earned liability of Qisas or Ta'zir or even Diyat.

54. From the discussion of above mentioned case of Ali Muhammad v. State, it appears crystal clear that it does not cover the case of Mr. Yahya Bakhtiar in all respects but Mr. Yahya Bakhtiar has stated that it could be used by way of analogy and the principles of appraisement of evidence and appreciation of legal' position as envisaged under Islam should be made applicable to this case. The difference between the two cases under comparison is that in the case of Ali Muhammad, appellant saw his wife in the act of Zina with another person and killed him and that person was liable to punishment of death even otherwise under Islamic injunctions. In the case under consideration defence plea is that deceased Muhammad Shafique abused wife of the appellant and wives of his tribe in Pushto which caused grave and sudden provocation and the appellant fired at him and in that context' one other factor is to be considered that a case was pending in which deceased Muhammad Shafique was charged with murder of father of appellant Abdul Haque and before announcement of judgment second incident took place as is stated above. Arguments advanced by both the sides have been reproduced above alongwith citations of textbooks and case‑law on the subject. In the rulings cited by the parties, there are some rulings which are cited by both the parties as according to the learned counsel for the parties they support their respective contentions. For that reasons the rulings cited by both the parties are discussed in detail with factual background stated therein so that it should be appreciated that whenever an observation is made by the Court, it is to be read in the context of they peculiar facts of that case and only then its proper import can be fully grasped and understood. in the rulings cited and discussed above defence plea raised is of grave and sudden provocation on account of Zina or Siahkari allegedly seen by the accused. Such plea was taken in two cases mentioned above State v. Abdul Waheed and Ali Muhammad State. In the case of State v. Muhammad Hanif, mentioned above, defence plea taken was slightly different to the extent that factum of causing injuries was admitted by Muhammad Hanif, who claimed that he was provoked because deceased dragged his wife and disgraced her It was held that husband had right to protect his wife and in such circumstances Qisas could not be imposed in Qatl‑i‑Amd and conviction recorded under section 302(c), P.P.C. awarding sentence of 10 years and payment of Arsh was upheld.

55. It is to be seen now as to under what particular provision of section 302, P.P.C. in the amended form case in hand will fall. After very careful consideration of the facts of this case and deep scrutiny of amendments made in Chapter XVI of the Pakistan Penal Code in the light of authoritative pronouncements contained in the books and treatises on the subject, it appears that instant case is covered by section 302(b), P.P.C. We are aware of the fact that before amendment of section 302, P.P.C., the case in hand would have been covered by ‑ section 304, P.P.C. on the plea of grave and sudden provocation in‑ the face of abusive language used by the deceased which provoked the appellant and would have called for lesser penalty than death but now after amendment this plea is not covered in Qatl‑i‑Khata, hence it is to be read within four corners of Qatl‑i‑Amd as is now defined under section 302, P.P.C. Now since section 302, P.P.C. in the amended form is substantive law not providing any exception covering plea of grave and sudden provocation on account of abusive language which is distinct and separate from the act of Zina as such, it would be deemed to be the bounden duty of the prosecution to prove positively whether case is covered by Qatl‑i‑Amd, liable to Qisas, not liable to Qisas, or liable to Ta'zir. Section 302(b), P.P.C. in the amended form is reproduced once again as under:‑‑ "(b) Punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or"

56. In the instant case there are very peculiar facts and circumstances. Muhammad Shafique was on trial on charge of murder of father of the appellant. Muhammad Shafique used to attend the hearings of the case in custody and appellant Abdul Haque as complainant in that case also used to attend hearings coming armed with pistol. Plea of Abdul Haque that he fired shots at Muhammad Shafique in the Court‑room on the day of judgment for the reasons that before announcement of judgment Muhammad Sharique abused Abdul Haque in Pushto in respect of his wife and wives of his tribe while passing in front of him and on that account Abdul Haque took out pistol and fired at him. This version is sufficiently substantiated by two eye‑witnesses P.W.4, Yar Muhammad, and P.W.9, Muhammad Aziz who have admitted in, their cross‑examinations that Muhammad Shafique did say something in, Pushto which was not understood by them as they were not conversant with that, language. In the old law before amendment the appellant could have get away with lighter sentence provided in section 304, P.P.C. In such circumstances, appellant in this case cannot and should not be punished with Qisas. Secondly, proof as demanded under section 304, P.P.C. for Qatl‑i‑Amd is not available because the appellant has not made confession of Qatl‑i‑Amd as such before the trial Court. True that there is admission of firing by the appellant at the deceased but that admission is to be read not in isolation of but in conjunction with his specific plea that he was provoked by abuses in respect of his wife and wives of his tribe uttered by the deceased which he could not tolerate. Thirdly, witnesses produced in the trial Court in support of the charge do not fulfil the requirements of Article 17 of the Qanun‑e-Shahadat. For such reasons it can be said that section 302(b), P.P.C. win apply in this case and the appellant can be punished by way of Ta'zir. Under the said provision, power given to the, Court is only to punish with death or imprisonment for life as Ta'zir and nothing less than that. We have also taken into consideration the fact that deceased Muhammad Shafique, when fired upon, was in custody and in handcuffs and therefore, helpless and unable ' to save himself We have also considered the fact that the appellant is Pathan and as such traditionally very sensitive about anything derogatory stated about his womenfolk and is expected to react very quickly on account of provocation. In the circumstances, we consider that plea of grave and sudden provocation on account of abusive language can be treated as mitigating circumstance in awarding sentence under Ta'zir even if ‑this plea as such is not available and; does not get any protection in the new amended law.

57. For such peculiar facts and reasons as stated above, we dismiss this appeal with modification to the extent that the appellant is convicted under section 302(b) and is sentenced to imprisonment for life., (Sd.) Sajad Ali Shah, C.J. I agree. I have enclosed hereto my note. (Sd.) Ajmal Mian, J I agree with Hon'ble C.J. I have enclosed a note of mine. (Sd.) Manzoor Hussain Sial, J (Sd.) ' Muhammad Munir Khan, J (Sd.) Mir Hazar Khan Khoso, J AJMAL MIAN, J.‑‑‑ I have had opportunity of reading the draft of the proposed judgment of the Hon'ble Chief Justice. I respectfully agree with the reasoning and the conclusion but I wish to add few lines of my own. The question in issue is as to whether the appellant is to be visited with the sentence of death as Qisas or should he be awarded lesser sentence. The sentence for Qatl‑i‑Amd provided for under clause (a) of the amended section 302, P.P.C. is death as Qisas. However, under clauses (b) and (c) thereof lesser sentence can be awarded.

2. In the present case the plea of the appellant is that on account of the grave and sudden provocation, he lost control over himself because of the utterance of the deceased and, therefore, he is not liable to be awarded punishment of death as Qisas. In other words, he is relying upon the plea of grave and sudden provocation which was contained in Exception 1 to the unamended section 300, P.P.C. which provided as under:‑‑ .......Culpable homicide is not murder if the offender, whilst deprived of the power of self‑control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: First‑‑ That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly‑‑ That the provocation is not' given by anything done in obedience to the law, or by a public servant in the lawful‑exercise of the powers of such public servant. Thirdly‑‑ That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation‑‑ Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."

3. In this regard, it may be pertinent I to refer to the following passage from the book titled "Islam Ka Foujdari Oanun" by Abdul Oadir Odh Shaheed Rehmatullah:

4. Reference may also be made to the following observation from the opinion of Muhammad Taqi Usmani, J. appearing at pages 674 and 675 in the case of Federation of Pakistan v Gul Hassan (PLD 1989 SC 633):‑‑‑

5. It seems to be‑ settled proposition of law in the Islamic Jurisprudence that oral provocation whatsoever of nature is not relevant in respect of offence of murder which is subject to Hadd. In, this view of the matter, the utterance attributed by the appellant to the deceased which caused loss of control on his part because of sudden and grave provocation has no relevance if I were to hold that under clause (a) of section 302, P.P.C., the appellant is liable to be punished with death as Qisas. However, if the appellant is liable to be' punished under clause (b) as Ta'zir, the above utterance on the part of the deceased would be relevant factor in deciding the quantum of sentence as the above clause (b) envisages sentence of death or imprisonment for life.

6. It may be advantageous to reproduce above amended section 302, P.P.C. which reads as follows:‑‑ "

302. Punishment of Oatl‑i‑Amd.‑‑ whoever commits Qatl‑i‑ Amd shall subject to the provisions of this Chapter, be‑‑ (a) punished with death as Qisas; (b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstance's of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."

7. A perusal of the above‑quoted section 302 indicates .that it provides three punishments under clauses (a), (b) and (c) thereof for a person who commits Qatl‑i‑Amd subject to the provisions of the. Chapter which contains the above section. It may again be pointed ‑out that under clause (a) the punishment provided is death as Qisas. However, this clause (a) is not applicable if clauses (b) and (c) thereof are attracted. It may also be observed that clause (b) envisages sentence of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case if the proof in either of the form provided for in section 304, P.P.C. is not brought on record. it may be pertinent to mention that above‑amended section 304 lays down nature of proof required for proving offence of Qatl‑i‑Amd liable to Qisas namely;

(a) the accused's voluntary and true confession of the commission of the offence made before a Court competent to try above offence; or (b) production of the evidence in terms of Article 17 of the Qamm‑e -Shahadat Order, 1984 (P.O.No.10 of 1984) (hereinafter referred to as the Order). Admittedly, the appellant has not made any voluntary confession in terms of above clause (a) of section 304, P.P.C. The question therefore, which needs consideration, is as to whether the prosecution has been able to bring on record evidence in accordance with Article 17 of the Order. It may be stated that clause (1) of Article V of the order deals with "the competence of a person to testify." It inter alia provides that the number of the witnesses required any case shall be determined in accordance, with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, It will not be out of context to point out that Article 3 of the Order deals with the question as "who may testify. Proviso 3 to above Article envisages that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness and where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. In the case in hand, the trial Court has not adverted to the above aspect while recording or accepting the testimony of the eye.‑witnesses. In this view of the matter, it can safely be concluded that the requirements of Article 17 read with Article 3 of the Order were not fully complied with. Hence, clause (b) of section 302, P.P.C. is applicable to the case in hand. It may b e pointed out that clause (c) of section 302 is not relevant as the instant_ case is not covered by amended section 306, P.P.C. which lays down that Qatl i‑Amd shall not be liable to Qisas in the following cases:‑‑ "(a) when an offender is a minor or insane: Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas; (b)when an offender causes death of his child , or grandchild, howlowsoever; and (c) 'when any Wali of the victim is a direct descendant, howlowsoever, of the offender."

8. Since the appellant's case falls under clause (b) whereunder the sentences provided for are death or life imprisonment as Ta'zir, the question whether the appellant is to be awarded death sentence or imprisonment for life is to be determined having regard to the facts and the circumstances of the case as laid down in the above clause (b) of amended section 302, P.P.C. In that context, utterance attributed to the deceased by the appellant, namely, that the deceased had sworn at him saying that, if acquitted, he would commit Zina with his wife and with the wives of the other members of his tribe ' would be relevant factor. In other words, the loss of the power of self‑control on the part of the appellant because of the grave and sudden provocation would be relevant factor in deciding the question, whether the appellant is to be awarded death sentence or imprisonment for life. To put it differently, it can be said that notwithstanding the omission to incorporate above Exception 1 in the amended section 300, P.P.C. grave and sudden provocation remains a relevant factor for deciding the question of sentence under clause (b) of the amended section 302, P.P.C. but it has no relevance I under clause (a) thereof. In this regard, I may reproduce the following passage from the book titled "The Islamic Criminal Justice System" by M. Cherif Bassiouni:‑‑ "GROUNDS FOR MITIGATING PUNISHMENT It was previously stated that the Judge maintains power to appraise the degree of punishment which he may impose on the criminal through Tazir by taking into consideration the nature and gravity of the crime and personality of the offender. The choice of punishment thus results from the judge's assessment of the acts themselves. Similarly, the grounds for mitigation are investigated thoroughly by the Judge in each case. Thus, for example, the Judge considers the physical condition of the criminal which might involve hunger, disease or deterioration of the offender's mental faculties and cause him to break the law because of the necessities imposed on him by nature. He must also consider the moral state of the individual, which may result from physiological, pathological or psychological conditions, or from a physical or moral constraint or duress exercised over the party by another, or, finally, as a result of self‑defence."

9. The above grounds for mitigating punishment highlighted by the above learned author will be relevant for deciding the question of sentence under clause (b) of the above‑amended section 302, P.P.C. in view of the language employed therein particularly, the expression, "having regard to the facts and circumstances of the case" The facts of the instant case do not warrant imposition of death sentence under above clause (b) but they call for lesser sentence of imprisonment for life as proposed by the Hon'ble Chief Justice. (Sd.) Ajmal Mian, J MANZOOR HUSSAIN SIAL, J.‑‑‑ I have had the opportunity of going through the proposed judgment of the Honouable C. J. as also a separate note added by my learned brother Ajmal Mian J. I respectfully agree with the conclusion arrived at by Honouable C. J. and concurred by my learned brother Ajmal Mian, J., but feel tempted to add the following few words. The concept of diminished liability in respect of offences relating to human body committed under grave and sudden. provocation as such, in my view, has not been recognised under section 300, P.P.C. as replaced by Criminal Law (Second Amendment) Ordinance, 1990, particularly because as different from the old section it contains no exception. The new section 300, P.P.C. reads:‑‑ "Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability caused death, causes the death of such person, is said to commit Qatl -i‑Amd." Whereas section 302, P.P.C. provides:‑‑ "Whoever commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as Qisas: (b) punished with death or imprisonment for fife as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." It may be seen that under clause (a) the . punishment provided is death as Qisas: whereas clause (b) provides sentence of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms provided for in section 304, P.P.C. is not available. It would be useful to refer to section 304, P.P.C. which reads:‑‑ "(a)the accused's voluntary and true confession of the commission of the offence made before a Court competent to try above offence; or (b) production of the evidence in terms of Article 17 of the Qanun‑e Shahadat Order, 1984 (P.O.No.10 of 1984) (hereinafter referred to a the Order)." Keeping in view the above provisions introduced in the Penal Code by the Criminal Law (Second Amendment) Ordinance, 1990, it is manifest that if the case falls under clause (a) of amended section 302, P.P.C., then there is hardly any scope for entertaining the concept of diminished liability on the ground of sudden provocation. Nevertheless, if the offence committed punishable under Ta'zir and the case falls under clause (b) or clause (c thereof, the Court can take into consideration the mitigating circumstances like grave and sudden provocation for award of lesser penalty. In the instant case, the evidence on the record admittedly not being conformity with the requirements of section 304, P.P.C., the offence committee by the appellant was, therefore, punishable as Ta'zir. The utterances attribute to the deceased by the appellant on account of which he lost self‑control would be relevant under clause (b) thereof, which provides the award of death sentence or imprisonment for life. Clause (c) of section 302, P.P.C. envisage punishment of either description for a term which may extend to 25. year where according to the Injunctions or Islam the punishment of Qisas is no applicable. In the instant case clause (c) is not attracted, as the offence committed by the appellant is not covered by section 306, P.P.C. which la down that Qatl‑i‑Amd shall not be liable to Qisas in the following cases:‑‑ "(a) when an offender is a minor or insane: provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving him from Qisas, he shall not be exempted from Qisas; (b) when an offender causes death of his child or grandchild, I howlowsoever; and (c)when any Wali of the victim is a direct descendant, howlowsoever, the offender." In the result, I, respectfully agree with the Hon.C.J. that the offence committed by the appellant falls under clause (b) of section 302, P.P.C. It means that the offender can be awarded either death penalty imprisonment for life. Taking into consideration the precise utterances of, if deceased in the instant case that if acquitted he would commit Zina with the appellant's wife and with wives of the other members of his tribe, coming from a person charged for the murder of appellant's father, could cause provocation to the appellant. This being a mitigating circumstance would be relevant for award of lesser penalty. In these circumstance". I agree to the award Of imprisonment for life to the appellant, as Proposed by the Hon ble Chief justice. (Sd.) Manzoor Hussain Sial M.BA/A‑1346/S Order accordingly,