P L D 1975 Quetta 18 (PLP)

AGHA ALI HYDER, J.--‑The appellant was convicted by the learned Sessions Judge. Quetta, for an offence under section 302, P. P. C. ands sentenced to be hanged by the neck till he be dead. There was also a fine of Rs. 100 imposed on him. There is a reference before us as required under section 374 of the Code of Criminal Procedure, and there is also an appeal. Both, reference and the appeal will be disposed of by this judgment.

2. The appellant was a police constable. On 12‑10‑1973, be was on Guard duty at the Governor's House, Quetta from 1 p. m. to 4 p. m. The prosecution story in brief is that on the day in question, at about 3‑45 p. m. Malik Qurban Hussain, who was the in charge of the guard at Governor' a House had come there on a round and found the appellant picking up walnuts from the trees, leaving his service rifle on the ground. Malik Qurban Hussain had asked him to report at the Guard Room, and it is alleged that he had slapped the appellant there, and imposed a punishment of three hours, extra drill for which an entry was ordered to be made. He had also reprimanded Shaukat Ali, the incharge of the beat for not exer cising proper supervision. Fifteen minutes after the change of duty, the appellant had taken a service rifle from Atta Muhammad saying that he needed the same for doing the extra drill at beat No.

9. At the gate he made inquiries about Malik Qurban Hussain and on learning, that he had just left, he followed in the direction pointed out, and spotting Malik Qurban Hussain walking near the residence of the Home Minister, fired from his, rifle. Malik Qurban Hussain fell down on the ground. The appellant had thereafter fired eight more shots. Malik Qurban Hussain died at the spot. A number of policemen had been attracted by the repeated firing and eventually the appellant was apprehended at the spot. Ata Muhammad had proceeded to the Police Station Civil Lines and lodged the F. I. R. City Inspector Muhammad Sharif had thereafter repaired to the vardat. He sent the dead body to the Civil Hospital ; secured the empties lying there and also prepared a mashirnama of the vardat. The next day, the appellant made a judicial confession which was recorded by Mr. Muhammad Hussain, Extra‑Assistant Commissioner, Quetta. The case, after due investigation was sent up to the Court of a Magistrate First Class, at Quetta.

3. The appellant in his statement at the Court of inquiry admitted that Malik Qurban Hussain had been to the Guard Room, and had made an entry against him in the Daily diary, and also awarded three hours extra drill. He admitted that he had fired 9 shots thereby killing Malik Qurban Hussain, and that he was apprehended at the spot by the policemen on duty. He also admitted that leaving his rifle at the Guard Room at the end of his duty, he had taken another one from there, which had been used by him in mowing down Malik Qurban Hussain. He went on to say, that on the day in question, gusty wind was blowing. There were some electricians at the Governor's House, who had started throwing stones at the walnut trees. A stone bad fallen near him and he had gone in that direction to stop them, lest the pebbles might damage the windows of the Governor's House. Near about that time, Malik Qurban Hussain appeared at the scene, and asked him to come to him in the night. He wanted to know the reasons, but Malik Qurban Hussain did not come out with the details, and extended threats of dire consequence. On his refusal to comply with his demands, he had taken the appellant to the Guard Room where he was deprived of the rifle and the bandolier, and ordered him o leave in a "hands down position." Malik Qurban Hussain had then given him a number of kick blows and forced him to "hands down position". As though it was not enough, he also ordered three hours extra drill by way of punishment. After he was off duty, the appellant borrowed service rifle from P. C. Ata Muhammad to complete the extra duty of three hours at beat No.

10. At the gate, he inquired about Malik Qurban Husain and the sentry informed him that, he was going towards the bazzar. On coming out of the gate, he saw Malik Qurban Hussain going in front of the Governor's House and accosted him. Malik Qurban Hussain abused him and again inquired as to whether he would visit him in the night. The appellant lost self‑control and fired at Malik Qurban Hussain. Thereafter he was apprehended by Sepoy Dad Karim and taken to the Police Lines.

4. At the trial he admitted firing nine shots. He also admitted that he had made the judicial confession before the Special Railway Magistrate. He went on to say that he had killed Malik Qurban Hussain as he was pestering him with demands of sexual intercourse against the order of nature and had further humiliated him at the Guard Room a little before the incident. He also examined two witnesses by the names of Mohammad Ishtiaq and Abdul Khalil. Both of these were ex‑constables and deposed about the overtures made by Malik Qurban Hussain to the appellant about which a complaint had been made to them by the latter.

5. The autopsy had been performed by Dr. Ali Khan, who found the following injuries on the person of the deceased :‑-- "(1) Bullet entry wound anterior fold exella and emit left pectoral region portion of bullet recovered from exit wound. (2) Entry of bullet left latero Medical aspect of upper arm re‑entering left middle enlateral chest exit through abdominal wall. Contents (omentum) protruding out. (3) Entry of bullet above right elbow‑joint on posterior side, fracturing right humerus and exit medial, middle part of right forearm, re‑entering right chest at corresponding level and final exit left pectoral region. (4) Pleurae and lungs at corresponding sites of injuries Nos. 2 and 3 also injured. Cavity full of blood. (5) Bullet entry wound left lower abdomen sub-castal area and exit on epigastern and contents of abdomen (small intestines) protruding. (6) Tip of glass penis bear irregular margins with part of it completely destroyed. (7) Entry of bullet right middle back, right thigh and exit from and medial aspect of right thigh. (8) Entry wound of bullet right lateral aspect right upper arm and exit medial aspect forearm. According to the Medical Officer, the skull had been destroyed and the head injury had caused destruction of vital centres. The death according to him was instantaneous.

6. The eye‑witness account had been furnished by P. Ws. Ata Mohammad, Ghulam Rabbani, Abdul Majid, and Mukhtar Ali. They were constables on duty at the Governor House or at the residence of than Home Minister. Since the appellant also admits the killing of Malik Qurban Hussain, it is not necessary to dilate on their testimony.

7. It was contended by Mr. Karam Illahi, learned counsel for the appellant, that the appellant had been pestered by the deceased for quite some time, with demands of an immoral kind, and was very unhappy due to the same. The demand had been repeated even minutes before the actual tragedy. The deceased had also slapped him at the Guard Room to his great charging at the best, Malik Qurban Hussain could impose any punishment for the dereliction of duty. If any, on the part of the appellant, and he had awarded the same. He had, however, no justification to slap, and what was worse, he made lewd suggestions, to add insult to the injury even thereafter. The fact, however, remains, that the appellant had made a judicial confession a day after his arrest and he has struck to the same. He had not a word to say therein in regard to the accusation hurled by him in his statements at the Court of Inquiry and also at the trial, which had been repeated, on a deriva tive version from him, by the two defence witnesses examined by him. On his own showing, he had never succumbed to the demands, and it is rather surprising that the deceased should have chosen to repeat the same at the street and, that too from quite a distance notwithstanding what had been done by him at the Guard Room. This attempt on the part of the appellant, to say the least, is just preposterous. If the demand was not repeated on the road just before the incident, and it hardly requires much imagination to believe that it was not done, the earlier advance, if any, made would not constitute grave and sudden provocation. It is an admitted position that the appellant bad been slapped for the dereliction of duty and had further been punished with an extra drill of three hours. The appellant would naturally have felt mortified. There is also no denying the fact that he had been relieved of his rifle at the change of duty, and he bad borrowed a service rifle from P. C. Ata Mohammad. When he was at the gate, he had inquired about the deceased from the sentry. No sooner had he found him going on the road, he had fired at the deceased, and seeing him prostrate on the ground, went on firing as many as eight shots and had stopped only when he made certain of the fact that he wreaked his revenge. I agree with Mr. Karam Illahi that the deceased was not justified in slapping the appellant. P. C. Ata Mohammad denied at the trial that the deceased had also hurled a stone at the appellant. However, he had so stated at the Court of Inquiry. That is demonstrably an embellishment as he had not so mentioned in the F. I. R lodged by him. The other witnesses had nothing of the sort to say. The appellant had talked about his being made to walk in "hands down position", but again that has not found support from any where and that is not to be found in his judicial confession. So all that is established from the record is that the deceased had slapped the appellant at the Guard Room for which he had no lawful authority. The test to see whether an accused acted under grave and sudden provocation is whether the provocation given, was in the circumstances of the case, likely to cause a normal reasonable man to lose control of himself, to the extent of inflicting the injury or injuries that he did inflict. If it appears that the action of the accused was out of all proportion to the gravity or magnitude of the provocation offered the offence will not fall under Exception I to section 300, P. P. C. To kill the deceased in the cold calculated fashion, as was done by the appellant, for the slap received by him, would hardly be an adequate cause. It shows the effect of a brutal and diabolical malignity than of human frailty ; the true symptoms of what the law denominates malice.

8. Mr. Karam Illahi referred us to the cases of Mirza Afzal v. State (1972 P Cr. L J 1025). Mohammad Raza v. State (1972 P Cr. L J 33), Mashal Khan v. State (1975 S C M R 80), The State v. Darajuddin Mondal and another (P L D 1962 Dacca 424), and Nusrat and others v. The State (P L D 1967 S C 18). A case, as repeatedly observed, is an authority only for what it decides. I am afraid, none of these would be of any assistance in bringing the offence within Exception I to section 300, P. P. C. I agree with the learned Sessions Judge that the offence made out against the appellant is one under section 302, P. P. C.

9. The next question for consideration would be in regard to the sentence awarded to the appellant. It appears that the appellant, who is a Pathan by caste, at the time of the incident was about 20 years or so. For some dereliction of duty, apart from the punishment that could be legally given to him, he had also been slapped by the deceased. It was just half an hour earlier that he bad been humiliated before his colleagues. He felt sore and in his misconceived way, decided to avenge the humiliation through this gruesome tragedy. Mr. Karam Illahi has referred to the case of Farid Khan v. State (P L D 1969 Pesh. I), where the accused, who killed his father while offering his prayer in a mosque, within a few minutes of the filthy abuses given, was given the lesser penalty under the law. In Mohammad Raza v. The State the death sentence was commuted to transportation for life, as the accused had been subjected to filthy abuses and threatened by the deceased to go away, though the latter, before he was stabbed, was unarmed. Mr. Karam Illahi has also Scited Ayoob v. State (P L D 1974 Kar. 1 ), Mohammad Azim Khan v. The State (P L D 1967 Pesh. 119), The State v. Tasiruddin (P L D 1962 Dacca 46), and some other cases in that context.

10. After due consideration, I am of the opinion that, in the circumstances disclosed, the appellant should not be visited with the supreme penalty under the law. I will therefore, alter the sentence of death awarded to the appellant, to imprisonment for life, and also remit the fine imposed on him. The reference is, therefore, not accepted. With this modification, the appeal stands dismissed. MUSHTAK ALI KAZI, J.‑

I agree. K B A Appeal dismissed. Sentence modified.