P L D 1958 (W (PLP)

AKHLAQUE HUSAIN, J.‑By his order dated the 13th of June 1957, the learned Additional Sessions Judge, Montgomery, found Muhammad Siddique (Sadiq) guilty of the offence under section 302, P. P. C., sentenced him to death and has submitted the record to this Court for confirmation of the sentence of death. The convict has appealed against the order. This order will dispose of both the Murder Reference (No. 162 of 1957) and the Appeal (No. 522 of 1957). There can be no doubt that Muhammad Siddique murdered the deceased Mst. Rajjan, the daughter of P. W. 14 Saddoo, on the 21st of November 1956, in the precincts of village Moin Kot, comprised in Chak No. 137/E. B., by firing at her seven pistol shots. Besides the four eyewitnesses (P. Ws. 14. 15, 16 and 17) there are: (1) the confession of the convict himself, made in the Sessions Court; and (2) the fact that four of the seven empty cartridges found on the spot are proved to have been definitely fired through Ex. P. 15, the pistol of the convict. Muhammad Siddique denied his guilt before the committing Magistrate ; but said m the Sessions Court that he had done so on wrong advice. His learned counsel did not, at the hearing, question the conviction; but confined himself to the question of sentence alone. He contended that, in the circumstances of this case, the guilt of the appellant ought not be visited with the extreme penalty of death. We have, therefore, first to ascertain and determine the circumstances upon which the plea for the lesser sentence can be founded. The village Moin Kot is jointly owned by the two brothers, P. W. 12, Muhammad Amin Khan and P. W. 13 Ghulam Moin Khan, who are very big landlords and own lands in ten or twelve villages. Both of them are married and live' with their families in Bali Bilawar, at a distance of a few miles from Moin Kot ; but they have a dera at the latter place. Ghulam Moin Khan is about 27 years of age and the learned Additional Sessions Judge, who saw him in the witness‑box, describes him as "a young and handsome man." Muhammad Siddique was in their employment as a munshi and lived in one of the rooms in the dera at Moin Kot. The deceased was a daughter of W. 14 Saddoo, who lives in Moin Kot and is an old tenant of the two brothers, Muhammad Amin Khan and Ghulam Moin Khan. She was, at the time of her death, about 23 years old, and is described by her sister‑in‑law, P. W. 10 Mst. Bakhan as "a famous beautiful girl of the locality", but Ghulam Moin Khan (P. W. 13) asserted in his cross‑examination that she was "a beautiful girl but not a very beautiful girl." She was married some years prior to the occurrence to one Allah Ditta, a resident of village Imam Shah, which is five or six miles from Moin Kot. Mst. Bakhan (P. W. 10), wife of the deceased's brother, Ramzan, stated; "After her marriage with Allah Ditta,. Mst. Rajjan was carrying on with Muhammad Siddique, accused. She gave birth to no child. She would not live with ' her husband, but would live in Moin Kot, where the accused lived single. * * * * * The accused had procured amulets P. F./l, P. F. /2; and P. F./3 to make Mst. Rajjan enamorous of him." These were recovered by the police from the person of the appellant. The language of Ex. P. F./2 shows that the person who was wearing it (the appellant) was in love with Mst. Rajjan and was wearing it to make her more in love with, and enamoured of him. On the search of the convict's residence on the day of the occurrence, a document (Ex. P. F.) was recovered by the police. This is dated the 5th of July 1954 and is described as "right of marriage on the basis of woman's consent" (haq‑e‑aqad banae razae khud aurat). The executants is Mst. Rajjan and the document recites that the executant had obtained divorce from her first husband Dittu son of Nura according to shariat; that she was making a request to Mehr Muhammad Siddique (the convict), of her free will and accord, to marry her for the sake of God; and that she will all her life remain an obedient wife in every way. The document purports to have been scribed by one Manak Ali, a teacher of the school at Beli Bilawar and a resident of 109/7‑R Bhatianwala, Tahsil and District Montgomery. It bears the thumb impressions of Mst. Rajjan and her sister‑in law Mst. Bakhan and the signature of Muhammad Siddique. There can be little doubt that this document came into existence on or about the day on which it purports to have been executed. P. W.

10. Mst. Bakhan admitted in cross‑examination: "I admit my thumb impression (on) P. F., 21 years back. This was thumb marked by Mst. Rajjan as well." There is no evidence besides this document whether Mst. Rajjan actually obtained divorce from her husband Allah Ditta. The prosecution alleged that she did not. Nor is there anything to prove that the convict ever went through the ceremony of marriage with the deceased. It is, however, satisfactorily proved from the evidence of Mst. Bakhan that the deceased did not live with her husband for some years and was carrying on with the convict who was greatly in love with her. The liaison between them, we are convinced, was known, much before the occurrence, not only to Mst. Bakhan but also to the deceased's parents and relations, to the entire village community and to the two landlords. In order to conceal the real motive of the murder a vain attempt Was made in the first information report and in the statements of the father and mother of the deceased to show that the deceased had come away from her husband's house only recently and that the appellant had started making approaches to her only a few nays before the occurrence. Apart from the fact that these statements are replate with inconsistencies and contradictions and the story lacks the ring of truth, the falsity of the allegations is clearly proved by the statement of Mst. Bakhan. There is also a very significant statement of the deceased's sister, P. W. 16 Mst. Zeban, in her cross‑examination. Said she: "I stated in portion A to A in the C. M's Court, that it is wrong that Mst. Rajjan had obtained divorce from Allah Ditta and had married the accused, then said, it might be correct that Mst. Rajjan may have obtained divorce from Allah Ditta and may have secretly married the accused and that we wanted that she must live in the house of her parents." Had the deceased not fallen out from her husband and then carried on with the appellant to the knowledge of her sister the latter would have straightaway repudiated the suggestions made to her in the cross‑examination. The witness also admitted in the Sessions Court that she had stated in the committing Court that Mst. Rajjan had been carrying on with the appellant for four or five years before her murder. In answer to a Court question whether fist. Rajjan was refusing to go away with the appellant because she was also carrying on with someone else, P. W. 12, Muhammad An1in Khan, the elder brother of Ghulam Moin Khan, said, "I recite Kalma and say that I have no knowledge: of any illicit connection between Mst. Rajjan and anybody else, except the accused himself." If the elder brother, like everyone else, was aware of the connection the younger brother too must have been surely aware of it. The version of the occurrence given by the convict in the Sessions Court runs as follows :.‑ "I went to the fields at about 8 or 9 a.m. on the day of the occurrence, for the inspection of the crop, as usual. I was Carrying the pistol P. 15 with me, in bandoleer P. 7, with numerous bullets, When I reached near the spot,. I found Gholam Moeen and Mst. Rajjan in a compromising position. There was no picking up going on nearby. I lost self‑control, temper, and under grave and sudden provocation, I fired seven bullets at Mst. Rajjan, through P.

15. Ghulam Moeen ran away to his own dera, in village Moeen Kot. I pursued him to murder him. I could not find him and somebody chained the door of the dera from without and I was confined there. Thanedar arrested me from within the dera on that very day. Mst. Rajjan was my regularly wedded wife and she had executed P. F., in my favour. Previously I was in love with her and I had obtained amulets P. F/1, P. F/2, P. F/3 to bewitch her. If I had not seen her, in a compromising position with Ghulam Moeen Khan, how could I murder her when I was madly in love with her. All the witnesses are liars. Nobody saw this murder. Ghulam Moeen Khan and Muhammad Amin Khan are the sole proprietors of the village and they set up all this. F. I. R., was drawn up at the spot, after the occurrence. I have studied up to Intermediate and I am an educated man. I would not have murdered her without any serious ground." We proceed to consider in which particulars and how far these allegations are proved or probable in view of the evidence on the record. In view of the statement of Mst. Subhana (P. W. 15) in her cross‑examination that "the accused used to wear the bandoleer, containing this very pistol, even before this murder during inspection of crops", it is satisfactorily proved that on the day of the occurrence the appellant was not carrying the pistol with any set purpose and that he had it on his person in accordance with his usual custom. There is of course no evidence on the record‑and in the particular circumstances of this case there could have been. none‑to prove the allegation that when the convict reached the field he saw Ghulam Moin Khan having sexual intercourse with Mst. Rajjan or found them in a compromising position. It is, however, admitted that Ghulam Moin Khan did go there; and the pertinent question to be considered in this case is when and why did he go there? Ghulam Moin Khan himself stated * * On the day of occurrence I had reached near the place off occurrence in the area of village Moin Kot I had come at that time from Bell Dilawar my village. I was on my horse. I heard reports of a pistol, from a distance of 4 killas, from the place of murder I made my horse run in that direction, I saw Mst. Rajjan lying dead with pistol firing, in the cotton field. * * * * All the above eyewitnesses 'told me at once that Muhammad Siddique had fired his pistol at Mst. Rajjan numerous times and had killed her. * * * * ". In cross‑examination he stated: "I would daily come to Moin Kot in these days." Ghulam Moin Khan himself has given no reason as to why he went to Moin Kot on that day or went there daily in those days. His elder brother P. W. 12 Muhammad Amin Khan, however, has stated the reason as follows :‑"Ghulam Moin, at the time of the occurrence, was in this locality for supervising his crops." P. W. 17 Nura is As servant of Ghulam Moin Khan and has stated that on that particular day cotton picking was going on under his supervision. P. W. 15 said that the duties of Muhammad Siddique accused in ‑our village were that he was incharge of all the properties and all the produce of Khans. He was to supervise all cultivation and he would collect all produce." In view of the fact that there were at least two servants of Ghulam Moin Khan in that village to supervise the crops it is rather surprising that a big landlord like him should have considered it necessary to supervise the crops personally. His allegation that he used to come to Moin Kot daily in those days is directly contradicted by P. W.

16. Mst. Zeban who asserted in her cross‑examination that "he (Ghulam Moin Khan) had come there only on that day." There is no explanation on the record as to why Ghulam Moin Khan,had come "near the place of occurrence" on that day straight from Beli Dilawar instead of going first either to his dera or to the village. Ghulam Moin Khan described his doings after reaching the place of occurrence in detail. He said: "I saw Muhammad Siddique at a distance of about 3 killas from the place of murder. He was covering his body with a chedar. All the above eyewitnesses 'told me at once that Muhammad Siddique had fired his pistol at Mst. Rajjan numerous times and had killed her. I called aloud Muhammad Siddique pointing out to him, that he had not done well and had betrayed our salt. The accused threatened me with dire consequences if I were to go near him. The accused told me that he was going to the thana to inform the police that he had murdered Mst. Rajjan. I told him that the thanedar was in Moin Kot our Chak. The accused then went in Moin Kot Chak at our dera and I was following him at a distance. The accused entered my dera. I got that dera closed and I sent a man to call Muhammad Amin Khan my brother. Then the accused made an extra judicial confession before Muhammad Amin Khan. Police reached the place of murder at peshiwela * * * * * " His whole statement is silent on the point as to how the police came to know of the occurrence and gives the impression that he himself knows, nothing about it. In the first information report, however, it is clearly alleged that Ghulam Moin Khan told Saddoo that the Sub-Inspector Police was in Chak No. 38/K. B. and asked him to go there and inform him. No part of the story related by Ghulam Moin Khan in the passage reproduced in the preceding paragraph is mentioned in the first information report. His name appears only in the concluding portion of the report which runs: "He‑(Muhammad Siddique) finished her by firing six or seven shots and went away towards the west. In the meanwhile Ghulam Moin Khan son of Mian Khan Muhammad Khan came there on his horse on having heard the sound of the shots and our hue and cry; and we informed him of the occurrence. He went away after him (Muhammad Siddique) to catch him and told me that the thanedar sahib is in Chak No. 38/K. B.and that I should go there to inform. I have thus come here to report". It may be that subsequently Ghulam Moin Khan introduced the story about the talk between himself and Muhammad Siddique near the place of occurrence and his having followed the latter to Moin Kot in order to furnish an explana tion as to why the appellant was subsequently found locked up in the dera. Admittedly Ghulam Moin Khan talked to the appellant at the place of the occurrence from a distance and he must have been near Saddoo and the dead body. Had he told the appellant that the Sub‑Inspector was in Moin Kot the fact would have been mentioned in the first information report. Had he, on the other hand, told Saddoo that the thanedar was in Chak No. 38/K. B., the appellant would have heard it and would not have gone into the dera. Moreover, Ghulam Moin Khan alleges to have told the appellant that the thanedar was in Moin Kot, and not in the dera. It is; therefore, impossible to say that the appellant did not pursue Ghulam Moin Khan to the dera as alleged by him. P. W. 15 Mst. Subhana has stated that the appellant threatened Ghulam Moin Khan when he saw him; but no witness says that the appellant threatened anyone else, although he had, according to the prosecution; a great grievance against Saddoo who is alleged to have abused him that morning and stopped him from coming to his house any more. Had the appellant nothing against Ghularn Moin Khan he would have had no objection to the latter accompanying him to the police. In spite of the fact that Ghulam Loin Khan had entrapped the appellant in the dera by resorting to a ruse it is alleged that the latter quietly made an extra‑judicial confession to his brother in the dera before the arrival of the Sub‑Inspector. Before proceeding further an important feature of this case may, be pointed out. The appellant asserts that he killed Mst. Rajjan because he saw her cohabiting, or in a compromising position, with Ghulam Moin Khan in the cotton field. Had that‑or even Ghulam Moin Khan's amorous approaches to the deceased‑been a fact it is but natural that a big landlord like Ghulam Moin Khan would have exerted himself to the utmost to keep that part of the story out of the prosecution case in order to save himself from public disgrace. Should there, therefore, be any reasonable possibility of the appellant's allegation being even partially true‑and upon the evidence on the record it is impossible to say that such a possibility does not exist‑the evidence of Ghulam Moin Khan, as also of all the persons under his influence, cannot be taken at its face value and must be approached with a certain amount of misgiving and considerable circumspection. In the present case all the eyewitnesses, with the exception of P. W. 17 Nura, are very near relations of Saddoo, who is an old tenant of Ghulam Moin Khan. Nura is Ghulam Moin Khan's servant and works as his thapi. It was admitted by Nura before the committing Magistrate that there were 10 or. 12 women, besides the relations of Saddoo, present at the time of the occurrence. None of these have been produced. Mst. Bakhan, the sister‑in‑law of the deceased, is alleged by Ghulam Moin Khan to have been present. It would have been surprising if she was not; if in fact the cotton picking was going on. It is not without significance that she did not say one word about the actual occurrence while in the witness box. On the other hand her whole statement leaves no room for doubt that she was trying to suppress some facts and felt considerable awkwardness in doing so. In cross‑examination she said: "The biggest zamindar of our elaca is Ghulam Moin, eyewitness in this case. He was present at the time of this murder and he is an eyewitness to this occurrence." This is a very clear contradiction of Ghulam Moin Khan's assertions that he was not present at the time of the murder, that he did not witness it and that the "eyewitnesses told" him "that Muhammad Siddique had fired his pistol at Mst. Rajjan numerous times and had killed her." Mst. Bakhan's statement points to the irresistible conclusion that Ghulam Moin Khan was present when Mst. Rajjan was murdered‑a fact which the prosecution witnesses have made strenuous efforts to suppress. In this state of affairs it was impossible for the appellant to prove his assertion that he killed Mst. Rajjan because he found her alone in the cotton field with Ghulam Moin Khan. That she was not alone, but in the company of a number of cotton pickers, is asserted only by witnesses who are completely under the influence of Ghulam Moin Khan. We do not think that in the circumstances of this case the presence of three heaps of cotton, weighing seven and a half, eight and a half and eight seers, can be treated as satisfactory corroboration of the witnesses in this case. They could have been easily planted there before the arrival of the police. The cotton could have been even actually picked by the tenants and servants in order to create evidence to exonerate a big landlord from all blame and ignominy we might also point out to another suspicious circumstance in this case. It is alleged that no one went to the police station to make a report because Ghulam Moin Khan told Saddoo that the thanedar was present in Chak No. 38/K. B. How Ghulam Moin Khan, who had come to Moin Kot straight from Beli Dilawar, came to know of the thanedars's presence in that Chak has not been explained. This Court had had occasion in several cases to remark that in view of the prevalence of the objectionable practice of not recording the first information reports at the police stations, because the thanedar convenient happens to be present somewhere in the vicinity, the inference is unavoidable that in fact the first information report was recorded at the place of occurrence after preliminary investigation by the investigating officer. Lastly we refer to the motive for the murder. In the first information report it was alleged by Saddoo that the appellant used to visit his house, that rumours were widely spread that the appellant had illegal connection with his daughter Mst. Rajjan and that in the morning of the occurrence he had asked the appellant not to come to his house because Mst. Rajjan had come there after having quarrelled with her husband. In his statement in the Sessions Court Saddoo said: "Sometimes before this murder, Muhammad Siddique accused came to my house. I prohibited him from visiting my house. Mst. Rajjan abused the accused, telling him that he is the cause of bringing her in disrepute and that he must not visit her house. This gave offence to the accused, and this is the motive for this murder." In the first information report there is no suggestion whatever of Mst. Rajjan having even seen the accused that day before the occurrence. Apparently it was realised subsequently that the allegations in the first information report did not constitute any motive on the part of the appellant to murder Mst. Rajjan and the version was changed in the Sessions Court. In cross- examination Saddoo admitted: "I did not state in the F. I. R. that my daughter Mst. Rajjan abused the deceased and prohibited him from visiting my house, as the motive for this murder. I cannot give any explanation for this omission". The mother P. W. 15 Mst. Subhana went, a little further and asserted : "We abused the accused. Mst. Rajjan also did so. The accused took offence and this is the motive for this murder:" Mst. Zeban, the sister of the deceased, who was living in the same house, does not depose to the incident in the morning alleged by Saddoo and his Wife; nor does Mst. Bakhan, the sister‑in‑law. It is obvious that an attempt has been made to substitute a false motive in place of the real. If the appellant had really taken offence at being abused he would have killed or harmed the father and the mother as well. It is also difficult to believe that a mere tenant who had been permitting the appellant to come to his house and to carry on with his daughter mole or less openly for the last four or five years would all of ' a sudden, without any rhyme or reason, become so sensitive of his honour that he would have defied and abused the person having authority over him. P. W. 12 Muhammad Amin Khan said "the truth is that the accused wanted to take her away to some place against the wishes of her parents, and she refused to elope with him." The appellant had been working with Muhammad Amin Khan, and before him with his father, for about twenty years with the exception of an interval of about four years during which he was serving in the army. He had been openly, without let or hinderance, carrying on with the deceased for at least four or five years. No reason whatever appears on the record as to why the appellant should have all of a sudden taken it into his head to give up his lifelong service and go away with the deceased. This suggestion, as well as the allegation that the deceased had abused the appellant and refused to see him any more in the morning of the occurrence, can, in the circumstances of this case, be considered to be plausible only on the hypothesis that some time before the occurrence the deceased had got herself entangled with Ghulam Moin Khan. The entire evidence and circumstances in this case, and especially the following question and answer in the cross‑examination of Mst. Bakhan, leave little room for doubt that Ghulam Moin Khan was the real cause of the deceased's murder :‑ "Q.‑Do you deny the sugestion, that during the course of her illicit connection with the accused, Mst. Rajjan set up a liaison with Ghulam Mom? "A.‑The witness is mum." Mst. Bakhan was admittedly on intimate terms with the deceased and was fully in the know of her love affair with the appellant. Her silence to the question implicating her landlord speaks for more eloquently than any words could have done. On the one hand she found it impossible to incur the wrath of her landlord and her father‑in‑law, who was a poor tenant of the former ; but on the other, she found it equally impossible to depose falsely against a man whom she had known for years to be an ardent lover of her sister‑in‑law and who was on trial for his life. From a careful consideration of the evidence the following conclusions emerge : The real motive for thin murder has been suppressed by the prosecution witnesses. In all probability the appellant murdered the woman who had been his beloved mistress for at least four or five years because he discovered that she had turned unfaithful to him. There is not sufficient evidence to enable us to say that he acted upon grave and sudden provocation ; but there is very considerable room for the conclusions that he did receive such provocation as to greatly upset him and make him desperate and that at the time of the murder he had little self control left. The question is whether we would be justified in view of these circumstances, in reducing the sentence of death to one for transportation for life. A person convicted of the offence under section 302, Pakistan Penal Code, has to be sentenced either to "death or transportation for life." By section 367 (5), Criminal Procedure Code, a trial Court is required, when not imposing the death sentence, to "state the reason why sentence of death was not passed." Section 424 of the Code makes section 367 applicable to the judgments of the Appellate Courts other than the High Courts. But, although not obliged to do so, it is customary with the High Courts to give some indications of the reason or reasons which induce them to alter a sentence of death to that of trans portation. This is obviously done in order to furnish guidance to the trial Courts in exercise of their discretion under section 302, which like all the discretionary powers of the Courts, must be exercised judicially in accordance with certain principles. It is, therefore, desirable for us to point out the principles by which we consider it proper to determine the question of sentence in this case. The first question which confronts us is whether the extenuating nature of the circumstances must, for the purpose of reducing the death sentence to one for transportation, be judged in the light of moral considerations. Can the appellant in this case be given the benefit of provocation received by him from the deceased or Ghulam Moin in view of the fact that his connection, with the deceased was illicit ? This question has been answered in the rulings both ways; but the majority of them lay down that the accused should not be deprived of the benefit of the presence of extenuating circumstances on moral grounds alone. In The King v. Palmer ((1913) 2 K B 29) Channell, J., observed : "It is well established law that if a husband discovers his wife in the act of adultery and thereupon kills her he is guilty of manslaughter only and not of murder. * * * * * * * * * * * * * * * But here the relation between the parties was not that of husband and wife, Nor was it a case of unmarried persons living together as husband and wife." In a subsequent case, decided in the same year, The King v. Frank Greening ((1913) 3 K B 846) Bray, J., referred to the above observa tions of Channell, J., in the following words :‑ "The last few words of that passage suggest a loophole. But Channell, J., did not directly say that the circumstances would amount to provocation in the case of unmarried persons living together. He left that case open. In my view the law which has been applied in the case of husband and wife has no application to the case of a man and woman living together. It is a gross offence against a husband that his wife should commit adultery, but there is no such offence against a man if a woman not his wife, although he may be living with her, chooses to commit such an act. In the latter case the man has no such right to control the woman as a husband has to control his wife. * * * * * * * * * The two cases are entirely different." It is doubtful whether the views expressed by Bray, J., represent the true rule of English law. Actually the question whether provocation in a particular case is sufficient to justify a verdict for manslaughter rather than murder is, in England, a question of fact and is left to the Jury. In the same year, after deciding the Greening case, Justice Bray sat in the Court of Criminal Appeal, along with two other learned Judge, to hear the Thomas Alaxandar case ((1913) 9 Cr. A R 139). There the appellant had been convicted of the murder of a woman with whom he had been living in adulterous relationship and it was pleaded on his behalf that the alleged mental deficiency (but not insanity) of the appellant coupled with the provocation he received from the deceased who had said she was going to live with someone else was sufficient to reduce his crime from murder to manslaughter. Although during the arguments Bray, J., drew the attention of the appellant's counsel to his decision in Greening the judgment of the Court, delivered by Darling, J., does not take any note of either that case or of the principal enunciated therein. On the other hand the decision, in so far as it relates to the question of provocation, proceeded on the ground that the provocation was neither mad sufficient, nor sudden. Had the Court accepted Justice Bray's views, it could have disposed of the appeal on the short ground that the provocation, on account of illicit connection between the appellant and the deceased, was not provocation in the eye of law. In an earlier case, Regina v. Matthias Kelly decided in ((1848) 2 C & K 814) the prisoner had murdered a woman, with whom he had been cohabit ing, on seeing her indulging in drink with another man. It was held‑that at best it was a case of jealousy and not of provocation but‑it was not held that in view of the illicit relationship between the Accused and the deceased there could be no provocation in law. In R. v. Larkin (1943 A E L R Vol. 1, 217) and R. v. Gauthier ((1943) 28 Cr. A R 65) the relationship between the accused and the murdered person was illicit but in neither of them it was held that the alleged provocation was one which was not recognized by law. In Mancini v. Director of Public Prosecutions, decided by the House of Lords ((1943) 28 Cr. A R 65) the Lord Chancellor (Viscount Simon) defined the provocation which will reduce the crime of murder to manslaugh ter. He said : "It * * * * * * must be such as temporarily deprives the person provoked of the power of self‑control, as the result of which he commits the unlawful act which causes death. * * * * * * * * * * * * * * The test to be applied is that of the effect of provocation on a reasonable man* * * * * * * * * . It cannot be said that as a matter of fact an ordinary reasonable man will never lose the power of self‑control on discovering the in fidelity of woman whom he dearly loves and with whom he, without being actually married, has been living as man and wife, because in the eye of the law, or in the eyes of some of his fellow citizens, he has no right to expect fidelity from such a woman. If the whole basis of the doctrine "of provocation be the loss of power of self‑control it would be most illogical, and unjust to hold that that loss shall be deemed to be the result of provocation only when the passion giving rise, to the provocation is not tabooed by a certain artificial code of ethics ; but not otherwise. This would be tantamount to creating criminal liability on the basis of legal fictions‑an idea which is abhorrent to modern criminal juris prudence. In cases of provocation indulgence is not shown by law on account of any artificial legal right or rule of morality of a particular school ; but is a condescension to the frailty of the human nature, which during frensy renders a man oblivious to the voice of reason, law and morality. In the Indo‑Pak. Sub‑Continent there have been numerous cases where the Courts have given effect to the plea of provocation arising out of adulterous or illicit relations between a man and a woman. Vide Dhania Kunbi v. Emperor (A I R 1924 Nag. 119), Mir Akbar v. Emperor (39 Cr. L J 339) and Sheo Baran Singh v. Emperor (A I R 1933 All. 533). In Kola Potharaju v. Emperor (33 Cr. L J 273) the learned Judges of the Madras High Court observed as follows :‑ "He (the trial Judge) was of opinion that though the provoca tion was sudden it was not so grave as to justify him in con victing of culpable homicide not amounting to murder. This opinion he based on the fact that Mahalakhshmi was the appellant's mistress. Had she been his wife, his conclusion would have been different and more favourable to the appellant. We find it impossible to agree that the fact that Mahalakshmi was the appellant's mistress and not his wife makes any real difference. One cannot apply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she hi wife or his mistress, in the arms of another man, he does no stop to consider whether he has or has not the right to insist o exclusive possession of her person as the case cited by the Judge puts it. She is a woman of whose person' he desires to be exclusive possession and that is for the moment, enough for him, he thinks of nothing else." With these observations we respectfully agree. These were dissented from by the learned Judges of the Patna High Court who decided the Murgi Munda case (40 Cr L J 786). They said : "The mere fact that a person's desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in Exception I to Section 300, Penal Code, is something which is recognised as provocation in law and not merely something which arouse the uncontrollable anger of a particular individual. A man in love with a woman who has repulsed his suit might be so angry as to lose control of himself' at the sight of her engaged in sexual intercourse with another but, if he killed one or both of them, he could certainly not plead grave provocation in mitigation of his offence." The learned Judges of the Madras High Court never said that provocation justified killing. The learned Judges of the Patna High Court did not define "provocation in law." The definition of provocation contained in Exception I to section 300, P. P. C., certainly does not support the law of their Lordships of the Patna Court. The fact that the Legislature considered it necessary to restrict the scope of Exception I by specifically enacting three provisos to it clearly shows that the language used in the Exception was intended to have full and free effect according to its natural meaning except in the cases specified in the three provisos. Had it been the intention to deprive an adulterer or other wrongdoer of the plea of provocation there would have been a further proviso to that effect. We are of the opinion that although there is no proof on the record of such a provocation which will bring the case within the first Exception to section 300, P. P. C., the provocation which is indicated by the circumstances of this case does not justify the inflicting of the capital sentence. We, therefore, refuse to confirm the death sentence and while upholding the appellant's conviction under section 302 we partly allow his appeal by substituting the sentence of transportation for life for the death sentence. Z. A. S./A. H. Sentence reduced.