P L D 1954 Lahore 11 (PLP)

S. A. RAHMAN, J.‑Fateh Muhammad has been convicted under section 304 Part I, P. P. C. and sentenced to five years' rigorous imprisonment by the learned Sessions Judge, Mianwali. He has appealed. The prosecution allegations were that the appellant along with three other persons had murdered Mst. Began, wife of the appellant, and one, Mehr Khan, who was said to be her para mour, on the 17th of October 1952, in the afternoon. The learned Sessions judge disbelieved the evidence led to the effect that all the four accused had participated in the crime, for what appear to me to be cogent reasons. He rightly accepted the story put forward by the appellant that he alone had killed his erring wife and her paramour, when he found them flagrante delicto, being gravely and suddenly provoked. He, therefore, declined to convict the accused under sec tion 302, P. P. C. and acquitting the other three accused, he sentenced Fateh Muhammad as mentioned above. Mr. Hamid‑ud‑Din on behalf of the appellant has not challenged the substratum of facts on which the conviction is based. He has argued, however, on the authority of the Federal Court decision in Safdar Ali's case (P L D 1953 F C 93.), that no con viction could be recorded in the established circumstances, under Part I of section 304, P. P. C. The effect of the decision in Safdar Ali's case came up for consideration by a Full Bench of this Court in Qadir Bakhsh v. Crown (P L R 1953 Lah. 637 = P L D 1953 Lah. 158.). I was a member of the Full Bench in that case. It was held that the observa tion of the Federal Court in Safdar Ali's case to the effect that intention to kill is wholly negatived by the instinctive reaction of self‑preservation in cases of self‑defence and by an emotional reaction in cases of grave and sudden provocation, embodied a principle which, being the ratio decidendi of the case, formed an authoritative element of the judgment and it was conse quently "law declared" within the meaning of section 212 of the Constitution Act and as such binding on this Court. It was laid down as a consequence that where a person kills another, under grave and sudden provocation, he cannot be convicted under Part I of section 304 P. P. C. In view of this' authority of the Federal Court, as interpreted by the Full Bench, I must give effect to the contention that the conviction in the circumstances of this case under section 304 Part I, P. P. C. cannot be sustained. The question then is whether the act of the appellant would fall within the purview of Part II of section 304, P. P. C., or not, This part of the section is in the following terms :‑ " Whoever commits 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 is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death." In the present case there is good evidence to show that the appellant killed the two deceased persons by causing them injuries with a sharp‑edged as well as a blunt weapon. There were eleven injuries on the person of Mehr Khan, six of which might have been individually fatal in the opinion of the doctor. Four injuries were found on the dead body of Mst. Began, three of which could have independently caused death in the ordinary course of nature. Mr. Hamid‑ud‑Din has contended before me that in as much as, in Safdar Ali's case, it was held by the Federal Court, per Cornelius J., that where the act is induced by grave and sudden provocation, under the stress of human feeling, an emotional reaction "temporarily occludes the formation of intention". it ought to follow that the mental condition of the accused would also prevent him under the stress of the same feeling from knowing that he was likely by his act to cause death. I am afraid I am unable to accede to this proposition. In the first place, the principle enunciated in the Federal Court judgment does not extend to the exclusion of knowledge on the part of the culprit that he was likely to cause death in a case of this nature. Secondly, the elements of intention and knowledge need not co‑exist in the mind of such a person at a particular time and the absence of one therefore does not imply automatically the elimination of the other. Barring cases of unsoundnesr of mind, there appears to be no good reason why the knowledge that his act was so dangerous as to involve the likelihood of death should not be imputed to a man who commits homicide in circumstances of grave and sudden provocation. To hold otherwise would bring all cases of crime committed under grave and sudden provocation on a par with those resulting from a fit of insanity. In cases of the latter category it must be postulated of the accused that he did not know what he was doing or that what he was doing was wrong before immunity can be claimed from punishment. Mr. Hamid‑ud‑Din conceds that there ought to be a distinction between the two types of cases. That in cases of self‑defence, which stand on the same footing as cases of grave and sudden provocation, vis‑a‑vis the principle formulated by the Federal Court, the possibility of conviction under another provision of the Penal Code was visualised by Cornelius, J., himself, is apparent from his observations at page 117 of the case reported as Muhammad Aslam v. Crown (PLD 1953 FC 115). I consider, therefore, that the principle laid down in Safdar Ali's case need not be extended so as to exclude the application of Part II of section 304, P. P. C., to crimes com mitted in circumstances like those obtaining in the present case. I find that the appellant may well have been convicted under the second part of section 304, P. P. C., and I alter his conviction accordingly. The provocation received by the appellant was no doubt of a very grave character. In view of this fact while convict ing him under section 304 Part II, P. P. C., I reduce his sentence to three years' rigorous imprisonment. A. H. Conviction altered.