1988 PLP 615 (SCMR)

MUHAMMAD HALEEM, C J.--Leave to appeal was granted to consider whether the High Court was correct in giving to respondent Raja Azhar Mahmood the benefit of Exception 1 to section 300, P.P.C., which runs as under: "When culpable homicide is not murder. 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." Both the respondent and deceased Altaf Hussain were employees of Karachi Transport Corporation (K.T.C.). Its depot was at Korangi No. 1 Karachi. At about -9 p.m. on 29-10-1979, the deceased was on duty but not the appellant. There was security room rear the gate where Watchman (P.W.1) Malang Shah was on guard duty. Both of them were seen by him entangled in a fight in which sticks were used as a result of which the respondent received blows on the head and bleeded. They were thereupon separated by others and in order to prevent them from fighting further the deceased was taken to the security room where he bolted the door from inside. The respondent freed himself from the persons who had separated them and went towards the window of the security room facing the gate and through that window fired several shots at the deceased with a revolver and thereafter ran towards the main door and used force to open it. The deceased in the meantime jumped from the window and ran for his life. The respondent thereupon followed him, but he took refuge behind a heap of scrap to avoid being further shot. The respondent after the chase retired towards the tea-cabin where he sat down, and was later arrested from there with the crime weapon. The incident as narrated by the P.Ws. namely, Malang Shah, Masood Ahmad, Muhammad Rahman Jaffery and Khadim Hussain is consistent in that there were two stages in the fight, the one that ended with their separation and the other when the respondent fired at the deceased while he was in the security room. The cause of the fight being that the deceased used to tease the respondent by calling him a "Chamcha" of the officers. The incident took place because of this utterance as the respondent took exception to it. The High Court while giving the benefit of Exception 1 to section 300, P.P.C., held as under: "As provided in Explanation under the aforesaid Exception, whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. In the instant case as pointed out above the learned counsel for the complainant frankly admitted that the firing was made under provocation which was also sudden. However, he disputed only the gravity of the provocation. In our opinion gravity of the provocation could be judged from its seriousness. That is to say that the provocation caused to the accused was so serious that he would go to any extent and would not hesitate to cause any harm or damage to his adversary. The accused had committed sustained two danda injuries on his head which could have resulted even in his death. Therefore, we are of the view that provocation caused to the accused was not only sudden but was also serious and grave that he was perfectly justified in firing pistol in retaliation." Before the benefit of the exception can be given the provocation should be grave and sudden, and that by its gravity and suddenness the offender should be deprived of the power of self-control. This is subject to the proviso that the offender should not seek it or make it an excuse for killing the victim by inciting him to provoke him (offender). The word "Chamcha" which apparently provoked the respondent and led to the fight is commonly spoken to indicate the loyalty of a person to his superiors. It cannot be regarded as of such gravity as to deprive the power of self-control. In such a case the test laid down is that the provocation must be such as will upset not merely, a hasty, hot-tempered and hyper-sensitive person but would upset also a person of ordinary sense and calmness. The law does not take into account abnormal creatures reacting abnormally in given situations. Applying this test, we do not consider that a reasonable man placed in the same position as the respondent was, would have reacted under that provocation in the manner in which the respondent did. Here what is obvious is that during the fight the respondent did not use his fire-arm, and if, at all, the provocation given was so sudden and grave, as held by the High Court, then he would have reacted to it as he had done later. Such not being the case, it follows that the respondent on being overpowered by the deceased felt insulted and committed the crime of killing him by firing at him with the revolver while he was taking refuge in the security room. The High Court, accordingly, erred in treating the two incidents as a continuing transaction and giving to the respondent the benefit of Exception 1 to section 300, P.P.C. We would, therefore, alter the conviction and sentence to section 302, P.P.C. and substitute the sentence of imprisonment for life and maintain the compensation awarded. The appeal is allowed subject to the above modification in the conviction and sentence. M.Y.H./M-347/S Appeal allowed.