P L D 1953 Lahore 158 (PLP)

Further on in the same judgment the learned Judge proceeded to remark:‑ "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 under stood in criminal jurisprudence‑in relation to a single act, and in the circumstances alleged by and against the appel lant Safdar Ali, duplicity of intention may be ruled out altogether." In another case, Muhammad Aslam v. Crown (Cr. App. No. 16 of 1952 = P L D 1953 F C 115), that very learned Judge reiterating the same view observed:‑ "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." These passages are specially relevant to the present case which is one of killing under grave and sudden provocation for which act the three appellants have been convicted under section 304, Part I of the Penal Code. I have pondered over these passages for several weeks, but have 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 provo cation, 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. Now this is a proposition which consistently with my oath of office which requires me to discharge the duties of my office to the best of my ability, knowledge and judgment, I cannot persuade myself to accept, and left to myself, and in the absence of any constitutional obligation, I would not act on the psychological phenomenon described by the learned Judge as an actuality. However unexpected the occasion for striking in self‑defence and whatever the loss of self‑control under provocation, a person who causes the death of another by smashing his skull with repeated blows on the head with a club must be taken to intend causing death or such bodily injury as is likely to cause death, and the same intention must be attributed to a person who kills another by stabbing him in the heart or by blowing his brains out by voluntarily exploding a gun, unless under the influence of some peculiar psychological or psychological phenomenon other than insanity, which I am not aware of, the killer is transformed into a striking or firing automation. It has always been so held and I know of no instance to the contrary. In English law killing in exercise of the right of private defence, called justifiable homicide, is always inten tional and so is killing under grave and sudden provocation, called intentional or voluntary manslaughter (vide Odgers on the Common Law, Vol. 1, page 27, 3rd Edidon by Roland Burrows ; Outlines of Criminal Law by Kenny, pages 116 and 117). The quotation from Viscount Simon's speech in the case of Holmes which the learned Judge cites as an authority for the proposition propounded by him expressly refers to malice which, in so far as it means the formation of an inten tion to kill or to inflict bodily harm, is equivalent to what in English law is called "malice aforethought, express" and if the learned Judge had read that noble Lord's speech a little further, he would have found him expressly saying that the intention to kill is formed where a husband, finding his wife flagranto delicto, kills her or her paramour. Despite vigorous search I have not been able to find any authority or precedent in support of the view taken by the learned Judge except a Ceylon case, Attorney‑General of Ceylon v. Kumaraslnghege Don John Perera (P L D 1953 P C 9), where the Court of criminal appeal said in reference to English law:‑ "If it is established or clear from the evidence that though provocation of howsoever grievous a kind may have been offered, nevertheless, if it could be shown that the accused caused the death with an intention to kill, the offence is one of murder and not manslaughter. This is one of the fundamental difference between our law and that of England ..In the case of murder there must be an intention to kill, in the case of manslaughter no such intention can exist." The case was, however, taken by the Attorney‑General to the Privy Council and Lord Goddard delivering the judgment of the Board disillusioned the learned Judges of the Court of Criminal Appeal by remarking:‑ "With all respect that is not the law of England. In Eng lish law no doubt there is a distinction between what is gene rally called involuntary and voluntary manslaughter. The former expression is used to describe that class of manslaughter where the death is caused by gross and culpable negligence, the most common example of which is death caused by the dangerous driving of a motor vehicle. In such a case there is, of course, no intention either to kill or to cause grievous bodily harm and no question of provocation can arise in such a case. The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self -control by reason of Provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour and the law has always regarded that, although an intentional act, as is amounting only to man slaughter by reason of the provocation received although no doubt the accused person intended to cause death or grievous bodily harm." I am, therefore, in this dilemma. If the passages quoted above from the Federal Court's judgments contain a statement of the law, namely, that the intention to kill is not formed or is negatived where a person kills under grave and sudden provocation, I would, under section 212 of the Constitution Act, be bound to set aside this and other similar convictions which for almost a century have always been recorded under part I of section 304, which requires as a necessary ingredient of the offence the intention to kill or cause such bodily injury as is likely to cause death. Some twenty similar convictions are just at present under appeal in this Court in Single French alone and the number of such cases in the lower Courts must indeed be considerable. I am aware of the observations of the Earl of Halsbury in Quinn v. Leathem (1901 A C 495), that every judgment is only an authority for what is actually decides and that it cannot be quoted for a proposition that may seem to follow logically from it, but I do not see how I can treat the ratio decidendi in two judgments of the Federal Court as irrelevant to this case in which the point requiring determination is precisely the point on which the Federal Court expressed itself so clearly. I cannot, therefore, sitting alone take the responsibility of deciding the question, and in view of its great importance and the course adopted in Hakam v. Crown (I L R 21 Lah. 242), where in consequence of certain observations made by the Privy Council the question whether section 27 of the Evidence Act was repealed protanto by section 162 of the Code of Criminal Procedure was referred to a Bench of seven Judges, I refer the following questions to a Full Bench

1. Is the rule laid down by the Federal Court in the passages quoted above in the case of Safdar Ali v. Crown and Muhammad Aslam v. Crown the "law declared" within the meaning of section 212 of the Constitution Act?

2. If so, is it binding on this Court in cases of killing under grave and sudden provocation which, have so far been held punishable under section 304, part I of the Penal Code?

3. If the answer to question No. I to in the negative, does the rule amount to the statement of a principle which this Court, on the authority of the Privy Council decision in Mata Parshad's case (1926 P C 272) and the Federal Court's recent judgment in Fazai Illahi's case cannot call into question?

4. If so, does it affect convictions under section 304, Part I of the Penal Code where the killing has taken place in the cir cumstances mentioned in question No. 2 above?

5. When a principle, rule, proposition, generalization or observation, which is opposed to a statutory provision, is stated in a judgment of the Federal Court without any reference to such provision, are Courts entitled for reasons to be recorded by them to question the correctness of such principle, rule, etc.?

6. If on a, particular point there be a conflict between a judgment of the Privy Council and a judgment of the Federal Court, which of the two judgments is to govern the case?

7. Is a statement of the English law on a particular point by the Federal Court, with which the High Court does not agree, "law declared" within the meaning of section 212 of the Constitution Act' A copy of this order will go to the Central Government in the Ministry of Law with the request that since an important provision of a Central Penal enactment is affected by this refer ence, the Advocate‑General of Pakistan may be requested to appear at the hearing to assist the Court. I understand Mr. Brohi, the learned Advocate‑General of Sind, has made a special study of the constitutional position in such cases and I should be grateful if he could spare a day to address the Court as amicus curiae. The Court would expect him to enlighten them only on two questions. (1) what is the meaning of the word "law" in the expression law declared" in section 212 of the Constitution Act? and (2) how does the generalization in question, if it be not a declaration of law, differ from several other generalizations which have been treated by the Federal Court in Fazal Illahi's case as declarations of law, and whether the High Court, if it does not agree with the generalization in question, can give reasons for its view without violating the Constitution and incurring the penalty of having its judgment expunged? I have framed these questions only in Criminal Appeals Nos. 891 of 1952 and 12 and 13 of 1953, but since the point was raised by Khawaja Nazir Ahmad and seems to be relevant to his and Mr. Hamidud Din's case, Cr. Appeal No. 677 of 1952, they will both be permitted to take part in the arguments before the Full Bench. A. H. Questions referred.