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Criminal Appeal No. 203 of 1964, decided on 7th April 1967.

----Ss. 300, Exception I, 302 & 304, Part I-Grave and sudden provocation-Benefit of Exception to be given on facts of each case-No hard and fast rule can be laid down--Depends upon effect of provocation on accused or persons of similar class ; upon mental set up of each individual, his environments, family traditions and religious susceptibilities Provocative act must be "Illegal or Improper"-Insult to or defile ment of Holy Quran conducive to total loss of self-control by every Musalman -Direct evidence of defilement lacking- Accused's word believe--Benefit of doubt-Conviction of accused altered from S. 302 to one under S. 304, Part I-Sentence reduced from trans portation for life to imprisonment already undergone.

In considering the applicability of Exception I (grave and sudden provocation) to S. 300, Penal Code, 1860 the deter mining factor has been whether the provocation given is sudden as well as grave enough to be an extenuation or the offence. It is an effect of the provocation upon the person provoked and probability of its producing a similar effect upon persons of similar class which is material consideration for attracting this Exception. The provocative act must either be illegal or one which, though legal is improper. There have been cases where an abuse to an individual has been held to be sufficiently provoca tive so as to entitle the person abused to the benefit of Exception I to section 30", P. P. C. There have been cases where an insult to religious susceptibilities of persons has been held to be sufficient for the purpose of attracting Exception I to section 300, P. P. C. The provocation which can bring a case within Excep tion I to section 300, P. P. C., will therefore not be governed by any hard and fast rule. It will depend upon the mental set up of each individual, his environments and family traditions in which he bas been brought up.

Every Musalman, therefore, considers the Holy Quran to be the penacea for all evils. Any insult or defilement of it will certainly be conducive to total loss of self-control by every person.

In the instant case, apart from a prosecution under S. 295, Penal Code (XLV of 1860) pending against the deceased, in which the allegation was that he bad defiled the Holy Quran, there was no direct evidence as to what transpired between the appellant and the deceased on account of which the appellant lost his equilibrium of mind and killed the deceased.

On this aspect of the case the Court observed: "The only thing available on the record is the word of the appellant himself which in the total absence of any other evidence has to be accepted. The appellant has stated that a woman came there and whispered something to the deceased on which the deceased told her to come hack after taking meals when he would do the needful for her. This talk between Sain Gharibu (the deceased) and the woman had confirmed the suspicion of the appellant that the deceased was guilty of having defiled the Holy Quran and was not even hesitating to defile it even at that time. For aught we know Sain Gharibu may have defiled the Holy Quran during this interval in the presence of the appellant himself and the appellant out of respect for the Holy Book may not have thought proper to say so. The evidence of the witnesses throws a considerable light on this aspect of the case.

The entire evidence does not by any stretch of imagination show that the appellant had done the deceased to, death on account of his past misdeeds. The evidence brought on the record can well be interpreted to mean that the appellant had killed the deceased because he had seen him defiling the Holy Quran. The benefit of doubt of every thing has in law to go to the accused."

In these circumstances it was held that the appellant had caused the death of the deceased because the deceased did some thing in his presence on account of which he lost his self-control and gave him injuries. The case of the appellant on these considerations was covered by Exception I to section 300, P. P. C. and will fall under section 304, Part I, and not under section 302, P. P. C.

Conviction was altered accordingly, and appellant's sentence was reduced from transportation for life to imprisonment already undergone (more than three years).

Ajun Shah v. State P L D 1967 S C 185 and Channan Khan v. Emperor 44 Cr. L J 595 ref.

R. A. Jeremey for Appellant.

K. M. Pasha for the State.

Date of hearing : 3rd April 1967.

The appellant, Abdul Ghafoor, has been convicted by the Additional Sessions Judge, Lyallpur, under section 302, P. P. C., and sentenced to transportation for life. He has filed this appeal.

2. The facts of the prosecution case briefly are that one Sain Muhammad Gharib alias Gharibu lived in Chak No. 374 J. B. with Shah Muhammad P. W. 9. He lived with him for a period of 20 years and during this time he used to teach the Holy Quran to the children of the village. He also used to give amulets to the people. He, however, left the village of Shah Muhammad and went to Chak No. 317 and lived there for about nine years. He then shifted to Chak No. 316 in village Talwandi where also his avocation was to teach the Holy Quran to the children of the village and also give amulets to the people. During the period he was in village Talwandi he was accused of having defiled the Holy Quran. First Information Report No. 39 was consequently registered against him under section 295, P. P. C., at Police Station Gojra, on the 11th of April 1963. This report, Exh. P. L. was lodged by Ismail and has been brought on record through Manzoor Ali, A. S. I., P. W. 4. The deceased Gharibu was, however, released on bail after he was challaned in Court. Shah Muhammad P. W. 9 had stood surety for him. After his release on bail, he stayed again with Shah Muhammad in Chak No. 374 J. B. The appellant by this time came to know that Sain Gharibu had been accused of desecrating the Holy Quran. He, therefore, went to the Station House Officer, Gojra, and inquired from him about the details of the case registered against the deceased. The S. H. O. informed him that he had been challaned under section 295, P. P. C., but because the offence was bailable and was punishable maximum with R. I. for two years, be had been released on bail. The appellant then came to his village, took up a Chhurt from his house, got it sharpened and went to the village of Shah Muhammad to ascertain whether Sain Gharibu was really defiling the Holy Quran and if so whether he had shown his penitence for it. He came to the Dera of Barkat Ali P. W. 10 and inquired from him about the whereabouts of Sain Gharibu. He was informed that Sain Gharibu was sitting under a Shahtoot tree in the land of Shah Muhammad. The appellant, therefore, anent to that place and to his great surprise found Sain Gharibu lying prostrate on his hands with his feet towards Kaaba probably with a view to drive away the evil spirits which were affecting Nazir Hussain. After Sain Gharibu finished his job, the appellant asked him as to whether the accusation against him that he was defiling the Holy Quran was correct. Sain Gharibu did not bear what the appellant had told him as he was hard of hearing and as such Nazir Hussain explained to him what the appellant had asked. Satn Gharibu instead of denying the accusation placed his hands on the ground and bowed his head. Nazir Hussain thereafter left the place. A woman then came there and whispered something to Sain Gharibu on which Sain Gharibu told her to come back after having her meals when he would do the needful for her. Sain Gharibu then got up and was probably going to the place where he was staying when the appellant follow ed him, felled him on the ground and cut his throat. On the cries raised by Sain Gharibu, Abdul Hafeez and Ata Muhammad, who were on their respective fields nearby, saw the appellant sitting on the chest of Sain Gharibu. They came to the scene and after removing the appellant, snatched Chhuri from him. On inquiry the appellant told them that he had killed Sain Gharibu because he had defiled the Holy Quran. In the meantime, Sultan Ali and Muhammad Yousuf came on the scene. They were informed that the appellant had done Sain Gharibu to death for having defiled the Holy Quran. Even the appellant on inquiry told them the same thing. Shah Muhammad also came on, the scene. The appellant and the Chhuri snatched from him wee handed over to him. The appellant informed Shah Muhammad also that he had killed Sain Gharibu because he had defiled the Holy Quran. Muhammad Yousuf was thereafter deputed to go to the police station to lodge his first information report. He, however, met Hameed Ali, A. S. I., at Janiwala Railway Station, which was at a distance of two and a half miles from the scene of offence and made a statement, Exh. P.J. before him. This statement was registered as first information report Exh. P. J./1, at Police Station Toba Tek Singh; at 5 p.m.

3. The police during the course of investigation visited the scene of offence and prepared its memo. They also arrested the appellant and secured Chhuri Art. P. 1, under memo. Exh. P. A. Blood-stained clothes (shirt and loin cloth) of the appellant were also secured under memo. Exh. P. C. The statements of the witnesses were also recorded. After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, admitted having killed Sain Gharibu. The case put forward by him in Court Has that Sain Gharibu used to place big feet on the Holy Quran at the time when he gave amulets to the people probably to make exhibition of his supernatural powers. According to him, the moment he found that the appellant had defiled the Holy Quran he lost his self-control and did Sain Gharibu to death. He has examined no witness in defence.

5. The question whether Sain Gharibu sustained injuries and died on account of them is not disputed. The evidence of Dr. Abdul Ghafoor also shows that there were two injuries on the neck of the deceased which were ante-mortem and sufficient in the ordinary course of nature to cause death. The doctor also opined that the death of the deceased was on account of shock and haemorrhage resulting from the injuries sustained by him. The evidence of the witnesses coupled with the admission made by the appellant has also established this issue beyond doubt.

5. The question whether the appellant caused injuries to the deceased which resulted in his death stands also established conclusively by the evidence of Abdul Hafeez P. W. 11, and Ata Muhammad P. W. 12 supported by the evidence of Sultan Ali P. W. 8, Shah Muhammad P. W. 9 and Muhammad Yousuf P. W. 13. The circumstances of blood-stained Chhrri Art. P. 1. having been secured from the appellant under memo. Exh. P. A. and his shirt and loin cloth having been recovered from him under memo. Exh. P. C. also lend considerable support to the evidence of the prosecution witnesses. The blood on the knife and the clothes was also detected by the Serologist to be human blood. More than everything else even the appellant has admitted that he had caused injuries to Sain Gharibu which brought about his death.

7. The only question that needs consideration in this appeal is whether the appellant is entitled to the benefit of Exception I to section 300, P. P. C., of grave and sudden provocation as pleaded by him in Court. Normally a person who causes the death of someone is guilty of murder under section 302, P. P. C. unless his case falls under one of the Exceptions to section 300, P. P. C. Exception I to section 300, P. P. C., is directed to give benefit to the person responsible for the death of someone on account of certain exceptional circumstances. The benefit sought to be given under this Exception is within the sole discretion of the Court and the principle under which the discretion in respect of this Exception has to be exercised is whether the provocation which is pleaded in the case is such as would be likely to move a person of an ordinary temper to violent passion. The deter mination of the question whether the provocation pleaded entitles the person pleading it to its benefit depends upon various considerations and varies with the facts of each case. A Judge, may reject the plea of provocation in one case and accept it on the same considerations in another case if a person is shown to belong to a class sensitive to provocation of that kind. Even the framers of the Penal Code said as under :-

"We agree with the great mass of mankind, and with the majority of jurists-ancient and modern-in thinking that homicide committed in the sudden heat of passion on great provocation ought to be punished, but that in general it ought not to be punished so severly 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 law. We think that to treat a person guilty of such homicide, as we should treat a murder, would be a highly inexpedient course-a course which would shock the universal feeling of mankind and would engage the public sympathy on the side of the delinquent against the law."

It is well-settled by now that "the indulgence which is shown by law in some cases to the first transport of passion, is a condescen sion to the fraility of human nature, which, while frenzy lasts, renders man deaf to the voice of reason". In other words Exception I is attracted only in cases where on the happening of some event the faculties of prudence and reason are occluded. The law has in such cases respected the infirmities and imbecilities of human nature for, given sufficient provocation, men will act in defiance of law. And the law would be cruel and unjust if it attempted to punish men for acts done when they were themselves the victim of an irresistible impulse. Numerous cases, can be cited to indicate that even the slightest things in life have weighed with Courts in giving the people benefit of Exception I to section 300, P. P. C. The determining factor in all the decided cases has been whether the provocation given is sudden as well as grave enough to be an extenuation for the offence. It is as effect of the provocation upon the person provoked and proba bility of its producing a similar effect upon persons of similar class which is material consideration for attracting this Exception. It has also been held that the provocative act must either illegal or one which, though legal, is improper. There have been cases where an abuse to an individual has been held to sufficiently provocative so as to entitle the person abused to the benefit of Exception I-to section 300, P. P. C. There have been cases where an insult to religious susceptibilities of persons h been held to be sufficient for the purpose of attracting Exception to section 300, P. P. C. The provocation which ran bring a case within Exception I to section 300, P. P. C., will therefore no be governed by any hard and fast rule. It will depend upon the mental set up of each individual, his environments and family traditions in which he has been brought upto substantiate, the case of Ajun Shah v. State (P L D 1967 S C 185) can be cited as an instance. In this case the appellant being a Pathan had committed murder in retaliation of the murder of his father and brother several years after the incident. Their Lordships of the Supreme Court took the view that retaliating the murder of the father and brother being a matter of tradition and family duty in Frontier Province, the appellant would be entitled to a lesser penalty provided under section 302, P. P. C. In other words, their Lordships took a view that time that elapsed between the murders of the brother of the appellant and the present incident would not be held to have assuaged the feelings of the appellant keeping in view the traditions of his family and his upbringing. There is another case of Muhammad Saleh v. State (P L D 1965 S C 366) which is relevant. In this case their Lordships took the following view:

"We are unable to see anything in the circumstances to justify the view of the learned Judges that by going in search of his sister, whom he did not find on her cot, when be awoke for Sehri, the appellant can be said to have done anything to cause, or to provoke his sister to give cause for grave and sudden provocation to himself. Under village conditions, and even in many other parts of society in this country, the right of the male members of a family to control the actions of their womenfolk, particularly in the field of sexual relations, is fully recognized and is forcefully maintained. The idea that a young unmarried girl in a village family is entitled to leave her bed during the night and go where she pleases, and that a male member of the family going in search of her is only asking for provocation if be finds her misbehaving in a sexual way, simply cannot be entertained. The taking of a hatchet can be explained by the fact that it was still dark, that is, for self protection, and it may be the accused expected to have to chastise his sister for misbehavior if that was found. Hut upon the admissible evidence in this case, there is no ground for thinking that the appellant expected to find his sister in an act of intimacy with a stranger. He must be allowed, on the evidence, the benefit of a shock on making the discovery, such as is fully recognised in law as furnishing grave and sudden provocation within the meaning of Exception I to section 300, P. P. C., sufficient to cause loss of self-control."

In the third case of Channan Khan v. Emperor (44 Cr. L J 595) the view taken was as under:

"In is impossible to lay down a hard and fast rule as to when a person who has received provocation should be said to have had time to cool down and thus to be deprived of the benefit of Exception I to section 300, I. P. C. Much depends on the individual characteristics of the accused and that element cannot be ignored in the determination of this matter. Information received from a reliable person and believed to be credible as to the existence of a provocating act, which is being done in the immediate neighbourhood and the existence of which is instantaneously verified, can within the meaning of that exception be said to be provocation given by the person committing that act, just as much as if the person provoked had seen it in the first place with his own eyes."

8. All the above cases have been cited merely to stress the point that a hard and fast rule cannot be laid down for invoking Exception I to section 300, P. P. C., for giving benefit of grave and sudden provocation to an. accused. What I have to consider in the present case is, as I have already said, whether the appellant is entitled to the benefit of grave and sudden provocation as pleaded by him. The admitted facts on the record are that the deceased Sain Gharibu was accused of having defiled Holy Quran. This is borne out by the record in that a complaint filed against him with the police has been brought on record. The evidence also discloses that he had been challaned for an offence under section 295, P. P. C. The Holy Quran, as we all know, to Musalmans, is a revealed word of God. Every Muslim holds it to be sacred. The Holy Quran itself contains a command

(do not touch it if you are not clean). It also says

(I have brought Quran to you which is both (Shafa) and (Rahmat) for all Musalmans). Even the Holy Prophet in his last will said that he was leaving Holy Quran and his descendants as the sources of guidance for Musalmans for all times to come. Every Musalman, I therefore, considers the Holy Quran to be the penacea for all evils. Any insult or defilement of it will certainly be conducive to tots loss of self-control by every person more so by an Alim who definitely is brought up in different environments and has receive totally a different training. The evidence on the record establishes that the appellant had approached Sain Gharibu to verify whether the accusation against him of having defiled the Holy Quran was correct. It is in evidence that on meeting the deceased the appellant asked him if the accusation made against him was correct. Despite the fact that the deceased did not deny the allegation, the appellant did not resort to violence. This happened in the presence of Nazir Hussain sometime before Sain Gharibu was actually killed. The appellant was also alone with Sain Gharibu for sometime after Nazir Hussain had left. There is no evidence on record as to what transpired during this time between the appellant and Sain Gharibu on account of which the appellant lost his equilibrium of mind and killed Sain Gharibu. Something must have happened as otherwise if the appellant had come prepared to kill Sain Gharibu for his past misdeeds he would not have waited. He should have used his Chhuri immediately on seeing him and killed him. He also did not resort to violence even when he was alone with him. The only thing available on the: record is the word of the appellant himself which in then total absence of any other evidence has to be accepted. The appellant has stated that a woman came there and whispered something to the deceased on which the deceased told her to come, back after taking meals when he would do the need for her. This talk between Sain Charibu and the woman had confirmed the suspicion of the appellant that the deceased was guilty of having defiled the Holy Quran and was not even hesitating to defile it even at that time. For ought we, know Sain Gharibu may have defiled the Holy Quran during the, interval in the presence of the appellant himself and the appellant out of respect for the Holy Book may not have thought proper to say so. The evidence of the witnesses throws a considerable light on this aspect of the case. The first witness who has talked about this is Shah Muhammad. He has stated as under

"On my inquiry the accused had told me that he had murdered the deceased because he had defiled the Holy Quran."

The second witness on the point is Abdul Hafeez. He has stated as under:

"I had enquired from the accused as to why be murdered the deceased. He told me that he had defiled the Holy Quran and as he had been let off on security he could not bear the insult done to the Holy Quran and therefore he killed him."

The third witness is Ata Muhammad. He stated as under:

"He said only this much that as he could not bear the insult done by the deceased to Holy Quran be had killed him.

The fourth witness is Muhammad Yousuf. His statement is as under:

"I also enquired from the accused who told me that as the deceased had placed his foot on the Holy Quran and a case had been registered against him at Police Station Gojra, but as he had not been punished, therefore, he had murdered him."

The entire evidence brought on the subject has been reproduced above and it does not by any stretch of imagination show that the appellant had done the deceased to death on account of his past misdeeds. The evidence brought on the record can well be interpreted to mean that the appellant had killed the deceased because he had seen him defiling the Holy Quran. The benefit of doubt of every thing has in law to go to the accused. In these circumstances, I am of the view that the appellant had caused the death of the deceased because the deceased did something in his presence on account of which he lost his self-control and gave him injuries. The case of the appellant on these considerations will be covered by Exception I to section 300, P. P. C. and will fall under section 304, Part I, and not under section 302, P. P. C. I consequently alter the conviction of the appellant from one under section 302, P. P. C. to one under section 304 Part I, P. P. C. The appellant was convicted by the judgment dated the 17th of February 1964. He has remained in Jail for more than three years. Considering the nature of provocation received by the appellant, my view is that the sentence undergone by him will be sufficient in the circumstances of this case, to meet the ends of justice. The sentence of the appellant is therefore reduced from transportation for life to the sentence already undergone.

9. With the modification mentioned above, the appeal filed by the appellant stands dismissed. He, however, will be released forthwith if not required in any other case.

Order accordingly.

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