P L D 1957 (W (PLP)

Murder on provocation but not on grave and sudden‑Death may be commuted to transportation for life. M. B. Zaman for Appellant. Mian Mushtaq Ahmad, Assistant Advocate‑General for Respondent. YAQUB ALI, J.‑

This will dispose of an appeal preferred by Muhammad Iqbal against his conviction and sentence to the extreme penalty of death by the Sessions Judge, Rawal pindi, and the reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence. The material facts alleged at the trial by the prosecution are these The deceased Haji Mehraj Din was an allottee of a godown near Sabzi Mandi Rawalpindi which has a small room at the back of it. In 1955, Bostan, father of the appellant, claiming to be a lessee of the room, took forcible possession of it which led to security proceedings being taken against him and the appellant. The property in dispute being evacuee, Bostan at first applied to the Deputy Rehabilitation Commissioner, and then to the Additional Rehabilitation Commissioner, Rawalpindi, for recognition of his alleged rights, but both the authorities found against him. He finally applied to the Commissioner, Rawalpindi, for reversing the order of the authorities below, but on the 5th of January 1956, this petition was also dismissed. A little later, the appellant was seen stabbing the deceased with a clasp‑knife (Exh. P. 1), just outside the enclosure of the Commissioner's office. Those who witnessed the occurrence were Muhammad Shafi (p. W. 8), Sub‑Inspector Punjab Constabulary, Shahinchi Khan (P. W. 9), a tonga‑driver, Muhammad Ramzan (P. W. 10), another tonga‑driver, Khan Bahadur (P. W. 11), a member of the Tonga Union, and Ghulam Mahboob (P. W. 12), a shopkeeper. Muhammad Shafi P. W. was coming at that time from the railway station and going to the Constabulary Centre in the tonga of Shahinchi Khan P. W. Muhammad Raman and Khan Bahadur were standing at the tonga‑stand near the place of occurrence. The last‑mentioned P. W., Ghulam Mahboob, was going to the District Courts situated in the vicinity of the Commissioner's office to obtain a visa form. The attention of these witnesses was first attracted by the cries raised by the deceased who had already been given two or three blows by the appellant. Muhammad Shafi, Sub‑Inspector, seeing the attack, got down from the tonga and put the appellant under arrest. Later on, Muhammad Yusuf, Inspector Police, arrived at the spot and undertook investigation in the case, and besides taking into possession the bloodstained knife (Exh. P. 1), he removed bloodstained clothes from the person of the appellant. The deceased succumbed to his injuries on the spot and it is not necessary to refer to the post‑mortem examination report in detail except to notice that there were seven injuries on the person of the deceased out of which injuries Nos. 2, 3 and 7 resulted in the cutting of small intestines and left carotid vessels. All these injuries were individually and collectively fatal. The appellant admitted before the Committing Magistrate as well as at the trial that he had caused the injuries which resulted in the death of Mehraj Din deceased, but pleaded that he had acted on grave and sudden provocation in the following circumstances. On the day of the occurrence he came to the Court of the Commissioner in connection with the revision petition filed by his father, but the matter had already been decided and the order pronounced. After making inquiries from the office of the Commissioner, he went to the bus‑stop opposite to that office where the deceased also came and addressing him pointed towards his private part. At this he (the appellant) told the deceased that the matter was decided in his favour once for all whereupon the deceased remarked that the appellant had his mother and sister subjected to adultery by the Deputy Commissioner and Commissioner and now he should offer them to higher officers. At this, deprived of the power of self‑control, he stabbed the deceased with the knife (Exh. P. 1). One witness, Muhammad Hayat, was examined in support of this version, but his testimony has not been believed by the learned trial Court. Mr. M. B. Zaman, the learned counsel for the appellant, did not lay much stress on the statements of the convict and his defence witness, but argued his case on the dictum of the Federal Court in Safdar Ali v. The Crown (P L D 1953 F C 93). His main contention was that since no evidence was led to show how the attack originated, the attention of all the eyewitnesses having been attracted after the deceased had been given two or three blows, the prosecution had failed to make out a charge of murder. In support of this plea he relied on the following passage from the judgment of Mr. Justice Cornelius at page 107 of the report :‑ "The law as formulated by the learned Lord Chancellor has made material differences in more than one respect. Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) a voluntary Act of killing, (b) intention to kill, and (c) absence of provoca tion. Even where these conditions are satisfied, the Court will not judge the case for the defence (e.g., of accident, self‑defence, provocation) and the case for the prosecution irrespectively of each other, but the whole of the evidence will be regarded, and if then there be reasonable doubt as to whether the act of killing was either unintentional or Provoked, the benefit will go to the accused person". (The reference is to the law formulated by the learned Lord Chancellor in Woolmington's case (1935 A C 462). It was further argued that in spite of the provisions of section 105 of the Evidence Act the above principles laid down in Woolmington's case applied in this country. Before dealing with these weighty propositions of law, I would first address myself to the facts of the present case. First of all, we find that, as a result of the adverse decision of the Commissioner, there was a motive on the part of the appellant to commit the crime because he alongwith his father had been finally deprived of the premises of the shop to which they lay a claim as lessees. Secondly, there is evidence to show that in May 1955 the appellant and his father tried to assault the deceased in the course of a dispute regarding these very premises so much so that Muhammad Khan (P. W. 5), Head Constable, Police Station Saddar Rawalpindi, who happened to be present there, put them under immediate arrest and initiated security proceedings against them Thirdly, the crime took place outside the premises of the office of the Commissioner, presumably after the decision in the revision petition was announced in favour of the deceased and not at the bus‑stand, which is shown in the plan (Exh. P. F.) across the road at a distance of 76 feet from the place of occurrence. Fourthly, the appellant is 26 years of age while the deceased was an old man of 60 who would have ordinarily thought twice before making indecent gesture and hurling abuses on the appellant. Of course, this rule cannot be applied universally to every old man some of whom may be very foul mouthed and indecent in their behaviour but we have no evidence or even a remote suggestion regarding the deceased to that effect before us. Lastly, if the deceased in fact abused the appellant, the latter as a first impulse would have resorted to exchange of abuses before he whipped out a knife. In that case, the noise raised by the parties would have attracted the attention of the aforementioned eyewitnesses from the very beginning. The possibility of the deceased having whispered the abuses and the appellant having acted abnormally and instantaneously opening the attack with the knife, of course, cannot be altogether ruled out. These are, therefore, the possibilities for and against the plea of defence on which we have to decide this case in the light of the decision in Safdar Ali's case. As for the first plea of Mr. Zaman, at first glance it finds support from the observations of .Mr. Justice Cornelius reproduced above, but on closer analysis we find that they cover two separate subjects. In the first part, the material differences made in the English Law of culpable homicide amounting to murder as a result of the law formulated by the learned Lord Chancellor in Woolmington's case are noticed. But it is not stated that a corresponding change has taken place in the law of this country which is embodied in a Statute. The second part relates to general principles of appreciation of evidence in criminal cases and is certainly applicable in all countries where the system of jurisprudence recognises the innocence of the accused unless he is proved to be guilty beyond reasonable doubt and the onus to prove all the ingredients of the crime remains on the prosecution from the beginning to the end. What then are the ingredients of culpable homicide amounting to murder which the prosecution must prove under section 300, P. P. C. to gain verdict of guilty ? Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Then follow the four Exceptions which deal with cases of provocation, sudden fight in the heat of passion, right of private defence, etc. Under section 105 of the Evidence Act, when a person is accused of any offence; the burden of proving the existence of circumstances bringing the case within any of the General Excep tions in the Penal Code or within any Special Exception or proviso contained in any other part of the Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Does the onus then lie on the prosecution in the words of the learned Lord Chancellor in Woolmington's case to prove that the killing was with malice, i.e., (a) a voluntary act of killing, (b) intention to kill, and (c) absence of provocation ? Fortified with this third ingredient "absence of provocation", the learned counsel for the appellant contended that the burden being on the prose cution to prove it, in the absence of any evidence to show how the attack originated, the charge of murder must fail. In my opinion, the learned judges did not lay down any such proposition in Safdar Ali's case, but since it was vehemently urged by the counsel, I would like to state that whatever be the law in England, the law in this country is embodied in a Statute and has to be given its plain grammatical meaning irrespective of any considerations of "caution" or "prudence". I am not aware of any principle of interpretation of Statute which authorises departure from the plain language of the section merely because it applies to cases which involve the loss of liberty or the life of persons accused of criminal charges. I, therefore, hold that the absence of evidence regarding the origin of the attack by itself did not result in the failure of the charge under section 302 of the P. P. C. against the appellant. Next as to the interpretation of section 105 of the Evidence Act and the quantum of burden on the accused to prove affirmatively the plea of grave and sudden provocation or on the ingredients of the remaining three Exceptions to section 300, P. P. C., the position is a little complicated. In Safdar Ali's case, the learned Chief justice has, in his separate judgment. defined the scope of section 105 of the Evidence Act so as to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken by the accused and to prove that none of those defences would be of any avail to him. This is followed by the observation on which Mr. Zaman relied that the principles laid down in Woolmington's case were applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. Shahabuddin, J. was pleased to observe that the decision in Wooimington's case, far from being inconsistent with section 105 of the Evidence Act, served as a valuable guide for its interpretation. Cornelius, J, in his leading judgment held that there was no difference between the application of the standard Of proof required under section 105 of the Evidence Act and the rule of "reasonable doubt" which obtains in the English Courts. It will be seen that although the learned Chief Justice has stated that in spite of the provisions of section 105 of the Evidence Act, the principles laid down in Woolmington s case would apply in this country; the view expressed by the other two learned judges is that the decision in that case was in conformity with the relevant provisions of the Evidence Act. Can it then be argued that it would be the duty of the prosecution to prove absence of provocation, or, in other words, if the accused pleads provocation, does the onus shift on to the prosecution to prove its absence ? If one of the principles laid down in Woolmington's case is that malice, as an ingredient of murder, will not be presumed unless the prosecution proves absence of provocation, then in all humility I will say that in view of the observations of the learned Chief Justice that it is not for the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences will be of any use to him, the application of that principle to this country was implicitly excluded. It therefore follows that, as provided in section 105 of the Evidence Act, the burden to prove the existence of circumstances bringing the case within any one of the Exceptions to section 300, P. P. C. is on the accused and that while the Court shall presume they absence of such circumstances, there will be cases in which the accused might not have succeeded in affirmatively proving the existence of those circumstances, and yet on examining the prosecution case side by side with the defence a reasonable doubt might be created in the mind of the judge regarding the guilt of the accused. The benefit of it will go to the accused whether as a matter of right or prudence, for the burden to prove all the ingredients of a crime remains on the prosecution from the beginning to the end. Woolmington's case is an apt illustration of such a case. There was no evidence besides a note found on the person of the accused that he had caused the death of his wife by a voluntary act. The only person who could controvert the plea of the accused, that 4 was a case of accident, was dead arid her aunt had merely heard the report of the gun and seen the accused leaving the scene of crime. It is apparent that in cases of this nature in which all other necessary evidence of crime is given by the accused himself, the possibility that the plea of defence might be true cannot be reasonably ruled out. While weighing the prosecution case, there might, of course, be other circumstances which satisfactorily prove its falsity. Keeping in view our above interpretation of the decision in Safdar Ali's case, and the circumstances of this case referred to in the earlier part of the judgment, we find that the crime committed by the appellant was unprovoked and fully attracts the provisions of section 300, P. P. C. We accordingly maintain the conviction of the appellant, but alter his sentence to transportation for life for the reason that the murder was not planned or premeditated, but it was committed in the heat of a passion immediately or soon after the adverse decision was announced by the Commissioner in the case relating to the disputed shop premises. The sentence of death is accordingly not confirmed. SHABIR AHMAD, J.‑--I concur in the order that the sentence of death imposed on the appellant be replaced by one of transportation for life, because the plea of the appellant that he attacked the deceased on being abused by him may well be true. The behaviour ascribed to the deceased would not, however, amount to grave and sudden provocation but there was provocation and the lesser of the two sentences prescribed by law for an offence of murder will meet the ends of justice. A. H. Sentence altered.