P L D 1962 (W (PLP)

CONSTANTINE AND FARUQUI, JJ.‑The appellant in this case was found guilty by the learned Sessions Judge, Larkana, of intentionally causing the death of two persons under grave and sudden provocation and was sentenced to seven years' R. I. under section 304(h, P. P. C., Before our learned brother Wahid uddin, Mr. .A. A. Sharif, counsel for the appellant, did not question the finding of fact, but urged firstly, that on this finding the conviction under Part I of section 304 was wrong, and secondly, that the circumstances of the case justified a reduction in the sentence. The first point has been referred to a Full Bench by our learned brother, who formulated the following question :‑ "Whether a person cannot be convicted under section 304, Part I of the P. P. C. if he kills another under grave and sudden provocation in view of the decision of their Lordships of the Federal Court in P L D 1953 F C 93." The case cited (Safdar Ali's case) is immediately succeeded by Muhammad Aslam's case at page 115 in the same volume of P L D. In both cases the main and lengthy judgment was delivered by Cornelius, J. (as he then was), and short judgments were delivered by Abdul Rashid, C. J. and Shahabuddin, J. In Safdar Ali's case the High Court of Lahore in an acquittal appeal had convicted the appellant under section 302, P. P. C. Cornelius, J. discussed the evidence at length. At page 100 he said that the Appellate Court should have been slow to upset the conclusions reached by the trial Judge who both saw and heard the material witnesses. He then continued "however, the case is not ended by the mere rejection of the evidence of the spot- witnesses for there was a complete case set up in defence by the accused Safdar Ali, namely that of self‑defence." After dealing with the evidence on this point, he pointed out that the appellant was never asked to explain why he behaved, after the occurrence, in the manner which the learned Judges below held to be indicative of guilt. Then comes the part of the judgment which is most material to this case. It was argued for the appellant inter alia that it did not follow that if the appellant's story was disbelieved, a case of murder was made out. The argument was supported by reference to the well‑known case of Woolmington (L R 1935 A C 402) from which the following passage was quoted in extenso: "When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was uninten tional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing- up in the present case: if the Crown satisfy you that this woman died at the prisoner's hands then he has to show that there are circumstances to be found in the evidence which has been given from the witness box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident." The counter argument for the Crown was that section 105 of the Evidence Act casts a burden of proving any exception upon the accused, and it was also argued that the burden of proof lay no less lightly upon an accused to prove an exception than upon the prosecution to prove the charge. Cornelius, J. held that the plea of self‑defence is founded on the actuation of the accused by a totally different intention viz. to save his life from imminent danger of extinction. In such circum stances intention to kill would be wholly negatived by the instinctive reaction of self‑preservation. The law grants immunity to the extent that such reaction is not disproportionate to the immediate danger. There are, of course, other qualifications as well, which are specified in the Pakistan Penal Code. The Judg ment then proceeded to say "as similar immunity is granted where the act Is induced by grave and sudden provocation, and for a similar reason, namely, that under the stress of human feeling, an emotional reaction takes place which temporarily occludes the formation of intention", and quoted in support certain observations of the Lord Chancellor In Holmes' case (L R 1946 A C 588). The Judgment then stated that the Court should examine the Crown case and the defence case in juxta‑position in order to determine the ultimate single question : "What was the intention with which the accused acted". It is not easy to conceive of a person being actuated by more than one Intention, as the term is understood in criminal jurisprudence, in relation to a single act, and in the circumstances of this case, duplicity of intention may be ruled out altogether. If the Court Is unable to believe either side, then though the defence case may be questionable, but at the same time, its falsity is not probable in the decree for a pru dent man to found action on the basis that it is false, the defence must succeed. The provisions of section 105, Evidence Act, must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the res gestae, and must be proved by the prosecution, yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to a particular defence which the accused either sets up or may set up Accordingly the case must be re‑examined on the lines laid down in Woolmington's case, the fundamental principle being that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution. Upon the facts it was held that the plea of self‑defence had been established not so much because the prosecution case was doubtful, but because the defence had established matters creating a preponderance of probability in its favour. Abdul Rashid, C. J. stated "I have had the advantage of read ing the judgment that my learned brother Cornelius proposes to deliver. I am in general agreement with him, and therefore, wish to add only a few remarks of my own" "I am of the opinion that the decision In the case of Woolmington v. The Director of Public Prosecutions L R 1935 A C 462 is in no way inconsistent with the provisions of section 105 of the Evidence Act. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, that Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defence would be of any assistance to him. The principles laid down in Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. The general observations made by me above shall not be taken to apply to any question relating to insanity as no such question arises in the present appeal. After an examination of the entire evidence including the statement of the accused, I have reached the conclusion that the defence put forward on behalf of the appellant might reason ably be true. The appellant Is, therefore, entitled to an acquittal." Shahabuddin, J. stated "I am in general agreement with my learned brother Cornelius, J. and should like to add only a few observa tions". He like, Sir Abdul Rashid, C. J., dealt only with the relation between Woolmington's case and section 105, Evidence Act. He stated :‑‑ "To secure a conviction for murder, the prosecution had to establish in this case not only that the appellant inflicted on the deceased the injuries of which he died, but also that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder. If in determining whether this burden was discharged by the prosecution the version of the accused appears to be reasonably possible, then a reasonable doubt pervades the whole case and the appellant becomes entitled to an acquittal." It will be noticed that both qualified their agreement with Cornelius, J. by adding the word "general" and that both dealt only with the question of the relation between section 105, Evidence Act, and Woolmington's case, thus indicating the scope of their agreement. The next case of Muhammad Aslam proceeded on much the same lines. The main judgment was delivered again by Cornelius, J. He started by saying "This case raises a question which has been dealt with at length in the recent appeal of Safdar Ali viz. the correct mode of treatment of a circumstantial plea of self‑defence raised in a murder case, having regard to the onus of proof resting on the prosecution to establish its case, and the burden lying upon the accused to prove his special pleading. In Safdar Ali's case the principles laid down by the House of Lords in the well‑known case of Woolmington have been examined, and it has been found that in a material respects, those principles do not conflict with the rules derivable from the statute law of Pakistan, contained in the Evidence Act." He then summarised the conclusions in Safdar Ali's case, and then proceeded: "The essential consideration underlying this conclusion is that the accused person cannot be regarded as having acted in the ordinary case, with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder." Abdul Rashid, C. J and Shahabuddin. J. in this case did not express any agreement with Cornelius, J. but each delivered a short judgment again stating that the High Court had proceeded on the basis that the defence must establish its case, as Sir Abdul Rashid said "with the same rigidity and exactitude as the prosecution case" or as Shahabuddin, J. said "beyond reasonable doubt", and both held that this was the incorrect approach, and that Safdar Ali's case had laid down the true principle, and that the guilt of the appellant had not been established beyond reasonable doubt. There are undoubtedly expressions in the judgment of Cornelius, J. which may fairly be interpreted that if a man is acting under grave and sudden provocation or in exercise of the right of private defence, he has no intention to cause death. In Qadir Bakhsh's case (P L D 1953 Lah. 158), Muhammad Munir, C. J. said that he had not been able to assign to them any meaning other than that when a man acts in exercise of the right of self‑defence or under grave and sudden provocation, the intention to kill is either not formed at all or is negatived by the instinct of self‑preservation in cases of self‑defence, and the loss of self‑control in cases of grave and sudden provocation. He then set out various authorities to the contrary and referred various questions to a Full Bench. The Full Bench decision appears at page 588 of the same volume and it was hold that the rule to be deduced from Muhammad Aslam's case is that the existence of an intention to kill is negatived when the killing is In exercise of the right of self‑defence of person or under grave and sudden provocation. It is to be noticed that none of the questions referred raised the point whether the judgment of Cornelius, J. represented the judgment of the Federal Court. On the other hand it also appears that the learned Advocate‑General of Pakistan and other representatives of the Crown did not contend that the questions referred related to a judgment of a single Judge of the Federal Court and not to a judgment of the Federal Court itself. The learned Advocate‑General, though he thought that the principle laid down by the Federal Court was opposed to the statute law of this country and an uninterrupted series of decisions extending over almost a century, nevertheless maintained that the High Court of Lahore was bound by section 212 of the Constitution Act, irrespective of what the opinion of the High Court might be. The three Judges of the High Court agreed with the Advocate --General, Kayani, J. recording that a previous attempt of his in Ghulam Yusuf v. Crown (P L D 1953 Lah. 213) to reconcile the "statement of law" by Cornelius, I had failed. It was, therefore, decided by the Full Bench that a person cannot be convicted under Part (I) of section 304 bf the P. P. C. if he kills another under grave and sudden provocation, on the ground that the intention required by part one is lacking. Since then there have, however, been cases in the Federal Court and Supreme Court where appellants establishing the exceptions of grave and sudden provocation and exceeding the right of private defence have had their convictions maintained or converted under Part I of section 304, P. P. C. In Rafique's case (P L D 1955 F C 70) the appellant was convicted by the Sessions Court under sec tion 304 (1) and the Chief Court of Sind on appeal exercised its powers of revision in enhancing the sentence. This was a case in which grave and sudden provocation was found. The Federal Court, Akram, J. dissenting, considered that the Chief Court had enhanced the sentence on considerations applicable to a finding of murder and therefore restored the sentence imposed by the Sessions Judge. Cornelius, J. again delivered the main judgment Abdul Rashid, C J. and Shahabuddin, J, concurred. The question was not raised, so far as the report goes, whether the conviction under Part I was justifiable or not. In Akhtar Hussain's case (P L D 1958 S C (Pak.) 251) the judgment of the Supreme Court was delivered by S. A. Rahman, J. who, it may be noticed, had been a party to the Full Bench in Qadir Bakhsh's case, In the Lahore High Court. This was a case in which the Supreme Court altered the conviction under section 302 to a conviction under section 304 (I), finding that the appellant had exceeded the right of private defence, and also had acted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. On both counts it was held that the offence fell within the first part of section

304. This case, therefore, is much stronger for the State then the previous decision, for here the Supreme Court itself selected part one of section 304, P. P. C. for conviction. Lastly, we have Mashal Khan's case, an unreported decisions In Criminal Appeal No. 12 of 1959, where again the Supreme Court convicted the accused under section 304 (I) having found that he exceeded the right of private defence. I cannot consider that the Federal and Supreme Courts have acted per Incuriam in convicting these persons in the three cases cases above cited under Part I of section 304. , The convictions under Part I postulate a finding of guilty intention, and since in these cases private defence or grave or sudden provocation were found, the convictions are inconsistent with the remarks regarding negation of guilty intention made by Cornelius, J. in Safdar Ali's and Muhammad Aslam's case. It is true that logic does not bind the Courts‑a case is only authority for what it actually decides : per Lord Halsbury quoted with approval in Fazal Elahi's case (P L D 1953 F C 35 at p. 77) ; but this consideration can scarcely apply in the present case : I cannot conceive that the Supreme Court considers that a man may be punished for intending what he has not intended. I conclude, therefore, that the Supreme Court has treated in practice the observations of Cornelius, J. in Safdar Ali's case as obiter dicta, and not as forming part of the decision of the Federal Court, and has shewn by its practice that it does not agree with those remarks. I consider that, so far as we are concerned, the question referred to us has been determined by the Supreme Court itself, and that we are relieved, indeed occluded, from debating it further. Per curiaue We, therefore, return the reference to our learned brother with the answer that the decision in P L D 1953 F C 93, presents no bar to convicting under Part I of section 304, P. P. C. ELLAHI BAKHSH KHAMISANI, J.‑I agree with the conclusion. WAHIDUDDIN, J.‑I he circumstances under which the question under consideration was referred to the Full Bench are fully stated in the judgment of Sir George Constantine, which he proposes to deliver in this matter. It was urged before me by Mr. A. A. Sharif, the learned counsel for the appellant, in Criminal Appeal No. 190 of 1961, that the appellant could not be convicted under sec tion 304(I), P. P. C. on the finding of the learned Sessions Judge that he committed the offence under grave and sudden provocation. In this connection he relied on a decision of their Lordships of the Federal Court in Safdar Ali v. The Crown (P L D 1953 F C 93). This decision, was considered by a Full Bench of the Lahore High Court in Qadir Bakhsh v. The Crown (P L D 1953 Lah. 588). The learned Judges of the Lahore High Court In that case held that a person cannot be convicted under section 304(I) of the Pakistan Penal Code, if he kills another under grave and sudden provocation in view of the above decision of the Federal Court. The question, therefore, for consideration in this reference is whether the Federal Court has laid down any such law for the guidance of the Courts of Pakistan in this respect. It was urged before us that the observations, on the basis of which, the learned Judges of the Lahore High Court had arrived at the above‑mentioned conclusion, are only of one Judge of the Federal Court viz. Cornelius, J. (as he then was) and that cannot be considered to be the view of the other two Judges namely Abdul Rashid, C. J. and Shahabuddin J., composing the Bench of the Federal Court. This view has found favour with Constantine, J. also. In my opinion this contention cannot be accepted because both Abdul Rashid, C. J. and Shahabuddin, J. had concurred with the view of Cornelius, J. who delivered the main judgment is Safdar Ali's case. They have clearly said so in the opening part of their concurring judgment and have expressed that they are In general agreement with the observations of Cornelius, J. in the leading judgment. They have further added their remarks to the judgment of Cornelius, J., which in my opinion do not in the least depart from what Cornelius, J. has observed on the point under consideration in the above‑mentioned case. In my opinion, therefore, it cannot be said that the observations of Cornelius, J. in the leading judgment are not the observations of the Federal Court as a whole but his personal opinion. On the facts of Safdar Ali's case it is not possible to come to such a conclusion. I am therefore of the opinion that the view expressed by Cornelius, J. in Safdar Ali's case must be taken to be the view of the whole Court and would be binding in this case if the contention of the learned counsel for the appellant on the question under consideration is found to prevail. The question, therefore, for consideration in this reference is whether the observation of Cornelius, J. In Safdar Ali's case is the exposition of the whole criminal law on the subject of culpable homicide in Pakistan or is confined only to the case under section 300 before the Federal Court. In order to appreciate the point of view of the Federal Court It will be desirable to mention here that their Lordships in Safdar Ali's case were faced with the question whether in a case where an accused had failed to prove his special plea aiming at bringing his case within an exception succeeded, however, in creating reasonable doubt in respect of his guilt, Courts should give benefit of doubt to him after taking into consideration the entire evidence or to convict him as he had failed to discharge the burden under section 105, Evidence Act. In this connection their Lordships of the Federal Court considered the effect of Woolmington's case (L R 1935 A C 462) and came to the conclusion that it had made material difference in more than one respect and the same principles are applicable also to the cases that come up for decision before the Courts in Pakistan. Cornelius, J. in this connection made the following observations: "After careful consideration of these arguments, which being based upon the words of statute, have required very careful examination, I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of 'reasonable doubt' which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i.e. to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond 'reasonable doubt.' If then an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such intention may, of course, be established by proof of circumstances surrounding an evidence act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility of the defence plea . being true, in order to provide the preponderance of probability necessary for a 'prudent man' to act on the footing that the accused's act was performed with the sole intention of killing, or of causing a necessary fatal injury." It would thus be seen that his Lordship was dealing about the plea of defence of an accused person which may cast a doubt on the existence of the requisite intention or mens rea, a necessary ingredient of the offence. This is quite apparent from the words such as "the requisite intention in a case of murder" or "that the accused's act was performed with the sole intention of killing or of causing a necessary fatal injury". After making the above mentioned observations, Cornelius, J. then considered the foundation on which the plea of self‑defence and grave and sudden provocation is based. In this connection Cornelius, J. observed as under :‑ "The plea of self‑defence of the person, in a case of the present kind, is founded on the actuation of the accused by a totally different intention viz. to save his own life from imminent danger of extinction. On the facts alleged by the accused, he was so placed when the deceased delivered his opening blow, that evasive action would have been futile, and he had instantan eously to meet knife with knife if he was to come out of the encounter alive. In such circumstances, intention to kill would be wholly negatived by ‑the Instinctive reaction of self‑preser vation. The law grants immunity to the extent that such reaction is not disproportionate to the immediate danger. (There are, of course, other qualifications as well, which are specified in the Pakistan Penal Code.) A similar immunity is granted where the act is induced by 'grave and sudden provocation', and for a similar reason namely, that under the stress of human feeling, an emotional reaction takes place which temporarily occludes the formation of intention. As was observed by Viscount Simon L. C. in his speech in the case of Holmes L R 1946 A C 588 :‑ 'The whole doctrine relating to provocation depends on the fact that it causes or may cause, a sudden and temporary loss of self‑control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. " The italicised passage has been relied upon by the learned counsel for the appellant in support of his contention that on these observations a person who is found to have committed the murder under grave and sudden provocation cannot be convicted under Part I of section 304, P. P. C. The learned counsel for the appellant in support of his contention, has further relied on the following observations of Cornelius, J. at page 110: "For ultimately, a single question falls to be decided by the Court‑What was the intention with which the accused person acted ? It is not easy to conceive of a person being actuated by more than one intention‑as the term is understood in criminal jurisprudence‑in relation to a single act, and in the circum stances alleged by and against the appellant Safdar Ali, duplicity of intention may be ruled out altogether." I have given my anxious consideration to the appellant's counsel's contention and it is quite clear to me that the observations of Cornelius, J. referred to above are only with reference to the position in English law, which is the source of law of crimes in this country. Cornelius, J., while making the observations, had before him the observations of Viscount Simon in his speech in the case of Holmes (L R 1946 A C 588). It cannot be disputed that Viscount Simon with reference to the English law stated that the whole doctrine relating to provocation depended on the fact that it causes or may cause a sudden and temporary loss of self- control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. The learned Lord in the next sentence further observed: "Consequently, where the provocation Inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery." It is therefore quite clear that Cornelius, J. while dealing with this aspect of the question was only referring to the English law on the point under consideration. It cannot be denied that so far as the Pakistan Penal Code is concerned, it is also founded on the principles recognised in English law on the question of crimes It will be useful to reproduce here the following observations of the authors of the Pakistan Penal Code. "We agree with the great mass of mankind, and with the majority of jurists, ancient and modern, in thinking that homi cide, committed in the sudden heat of passion, on great provoca tion, ought to be punished ; but that in general It ought not to be punished so severely as murder. It ought to be punished In order to teach men to entertain a peculiar respect for human life ; it ought to be punished in order to give men a motive for accustoming themselves to govern their passions ; and in some few cases for which we have made provision, we conceive that it ought to be punished with the utmost rigour. In general, however, we would not visit homicide committed in violent passion, which had been suddenly provoked, with the highest penalties of the law. We think that to treat a person guilty of such homicide as we should treat a murderer would be a highly inexpedient course,‑course which would shock the universal feeling of mankind, and would engage the sympathy on the side of the delinquent against the law." I may point out that under the English law, two kinds of offences are recognised ; one is murder and the other is manslaughter. If any person causes the death of another person under grave and sudden provocation, the offence is not capital murder but manslaughter. Similarly, in our law also this position has been maintained. The definition of culpable homicide in section 299 covers both the case of murder and culpable homicide not amounting to murder. In section 300 the offence is murder unless it falls within one of the Exceptions. In Exception I of Section 300 It is clearly stated that if a person causes the death of another person or causes bodily injury to any person whilst deprived of the power of self‑control by grave and sudden provocation, then the offence is not of murder but of culpable homicide not amounting to murder. The case before the Federal Court was in respect of a matter where the accused has taken the plea of self‑defence and it was in that context that their Lordships of the Federal Court were considering the question of Intention, knowledge and other things. The observations of Cornelius, J. also must be confined and limited to the context in which they were used and cannot be generalised so as to apply to a case which falls within section 304, F'. P. C. In my opinion, the observations of Cornelius, J. in respect of intention or duplicity of intention referred in Safdar Ali's case are to be considered in this limited sense and not beyond it. This view is fortified by the observations of Cornelius, J. in the next case of the Federal Court in Muhammad Aslam v. The Crown (PLD 1953 FC 115). Cornelius, J. in that case has summarised the conclu sions arrived at in Safdar Ali's case in the following manner:‑ "The conclusions arrived at in Safdar Ali's case may be stated as follows. Under the law of Pakistan the burden lies upon the prosecution, when it lays a charge of murder against an accused person to establish, by evidence such as a prudent man would require for the purpose of founding action thereon, that the killing was attended by one or other of the intentions which are specified in section 300, P. P. C. Where no such intention is established, but the killing is admitted, the highest charge which can be preferred is that of culpable homicide not amount ing to murder. In either case, If the accused person replies by the special pleading of self‑defence, it will be for the accused to prove, by evidence which should be sufficient to satisfy a prudent man that he can safely act thereon; that the homicide was committed in such circumstances as gave to the accused the right to cause death in defence of property, or of the person, which Is the case here. (The limitation upon the exercise of the right of self‑defence are stated with the precision in a number of sections of the Pakistan Penal Code commencing with section 96). Yet in order to give a verdict on the whole case, it is not enough for the Court to be satisfied only as to whether the special pleading of the accused has been established or otherwise. It is not correct to say that in such a case, the prisoner must discharge the burden of proving his Innocence. Having put forward a special pleading, it is undoubtedly for him to prove it by evidence of a quality and character such at will satisfy the conditions of the definition of the expression `proved' contained in the Evidence Act. But should he fail to prove his special pleading, that is not the end of the case, for the verdict of the Court must be given upon and as the result of the whole of the case. And it remains the duty of the prosecution from first to last, to establish that the offence charged, or some other offence for which under the law of Pakistan, the accused may upon the same evidence be convicted, has been proved, by the same standard as aforesaid. Therefore, the duty of the Court is, before it gives its verdict to apply its mind to the whole of the evidence and the circumstances appearing from the record, whether adduced by the prosecution or by the defence, and if upon such a review, the Court is left in a state of reasonable doubt whether the killing was accompanied by one or other of intentions which are necessary ingredients of the offence of murder or, whether the accused acted with the single intention of saving his own life, then, the accused is entitled to be acquitted, unless, upon consideration of the whole case, the Court is satisfied that he exceeded the right of self‑defence vested in him, in which case there may be a conviction and sentence for culpable homicide not amounting to murder." The learned Judge in the next paragraph further explained the position in the following words: "The essential consideration underlying this conclusion is that the accused person cannot be regarded as having acted in the ordinary case, (to which category the present case belongs) with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder. For the determination of this question it is necessary that the Court should take into account fully all the facts and circumstances appearing on the entire record, including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the oppos ing evidence led for the prosecution, since ex hypothesa it relates to the same incident. The effect, in such a case, maybe to create the state of reasonable doubt indicated above, of which the Court is bound to give the benefit to the accused." It is perfectly clear from the above observations that Cornelius, J. In this case has made a distinction between the offence of murder and the offence of culpable homicide not amounting the murder. This explanation leaves no doubt in my mind that the question of Intention referred to in Safdar Ali's case is only confined to the offence which constitutes murder and not to the ingredients of the offence which falls for consideration in a case of culpable homicide not amounting to murder. In these circumstances, with profound respect, it is not possible for me to agree with the view of the Lahore Full Bench that on the observations of Cornelius, J. in Safdar Ali's case an accused cannot be convicted under sec tion 304(1), P. P. C. In my opinion it depends on the facts of each case whether a person should be convicted under sec tion 304(1) or under section 304(11). In order to convict him under these two Parts, the ingredients referred to in this section will have to be taken into consideration. The fact that a person by losing his self‑control could not form the intention to constitute the offence of murder will not come in the way of holding that he had committed an offence without any of the two Parts of section 304, P. P. C. The view expressed by me is consistent with the observations of the Federal Court in the case of Fazal Elahi and others v. The Crown (P L D 1953 F C 35) to the following effect at page 77: "We emphasise the golden words of Lard Halsbury, already quoted :‑ . . . a case is only an authority for what 1t actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it.' Our judgment in the case of Ali and Bashir is authority for what it decides, and no Court in Pakistan can be permitted to question the facts we have found and the declarations of law based thereon." In my humble opinion the observation of Cornelius, J. should be confined to a case under section 300, P. P. C. since his Lordship was not considering the case of section 304, P. P. C. Besides, as pointed out by Constantine, J., both the Federal Court and the Supreme Court in cases which came up for decision before them after the decision of Safdar Ali's case, where the appellants had established the plea of grave and sudden provocation or had exceeded the right of private defence, had either maintained or converted their convictions under Part I of section 304, P. P. C. These are referred in detail in the judgment of Constantine, J., and it will be of no use to refer to them again. It shows that the Federal Court and Supreme Court have not interpreted Safdar Ali's case in the manner in which appellant's counsel pressed us to interpret. I am satisfied that the observations of Cornelius, J. referred to above cannot be extended to cases failing under section 304, P. P. C. Such cases must be considered on their own merits and conviction under this provision of law must be based on the facts proved on the record according to the principle governing it. I will, therefore, answer the question as proposed by Constantine, J. BASHIR AHMAD, J. ‑‑I agree with the conclusion reached by my brothers, but would like to add only a few words of my own.

2. I will rest my conclusion solely on the fact that in the later pronouncements of the Supreme Court noticed in their judgment, the Supreme Court itself has modified its previous view. I find myself unable, with respect, to accept the view that the reasons on which Cornelius, J. (as he then was) based his decision in the case of Safdar Ali and later in Muhammad Aslam's case was not the law laid down by the Federal Court and merely represented his individual opinion which the other members of the Bench need not necessarily have shared with him. It is no doubt true that in the brief orders passed by the other Judges, there is no express statement of the law as propounded by Cornelius, J. The fact still remains that the other Judges did not feel called upon to expressly dissent from that view and if they have chosen not to do so, I do not feel competent as constituted, to supply that need. K. B. A. Reference answered.