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Appeal No. 891 of 1952, (Reference answered on 23rd June 1953), from the order of Masud Ahmad, Additional Sessions Judge, Multan, Camp Muzaffargarh, dated the 28th October 1952.

(This case was referred to the above noted Full Bench by Muhammad Munir, C. J., for decision of certain questions of law arising in the case, vide His Lordship's order, dated the 17th March 1953‑‑P L D 1953 Lah. 158.)

Government of India Act, 1935, S. 212-‑Declarations of law by Federal Court‑Binding nature of‑---Killing in right of private defence or under grave and sudden provocation‑Conviction cannot be bad under S. 304 (1), P. P. C.

--The obligation of a Judge to follow the judgment of a superior Court does not disappear merely because his own view of the law is different or because the judgment of the superior Court was given per incuriam, e.g., in ignorance of a statutory provision. The application of the doctrine of per incuriam to precedent decisions is limited to precedents of the same Court or a Court of co‑ordinate jurisdic tion and with the exception of Drummond v. Drummond L R 2 Equity Cases 335 which holds that what has a statutory force and effect must prevail against most authoritative decision of even the Supreme Judge in the Court of the Chancery, I am not aware of any decision where that doctrine might have been applied to decisions of a superior Court. Apart from all this, the English Common Law rules governing authority precedents are not strictly applicable to Pakistan where by a constitutional direction the law declared by the judgment of the Federal Court is given a binding effect.

The rule to be deduced from Muhammad Aslam's case P L D 1953 P C 115 is that the intention to kill being an in gredient of the offence of murder, any doubt as to the existence of that ingredient makes a conviction for murder impossible in law and that the existence of any such ingredient is negatived when the killing is in exercise of the right of self‑defence of person or under grave and sudden provocation. Thus the principle laid down is the ratio decidendi of the case and not merely a dictum which we cart distinguish or disregard . . . . . . whatever our own view of the correctness or otherwise of the rule in question or of its consequences and implications may be, a matter on which I express no opinion, we are bound under the Constitution Act to act upon it. We therefore agree . . . . . . that a person cannot be convicted under section 304 (1) of the P. P. C., if he kills another under grave and sudden provocation.

Mato Parshad's case 1925 P C 272, Fazal Ilahi's case P L D 1953 F C 35 and Attorney‑General of Ceylon v. Kuma rasinghege Don John Perura P L D 1935 P C 9 rel.

Maung Kun v. Ma Chi A I R 1931 Rang. 113, Chamrabaghwalla v. Parpia A I R 1950 Born. 230 and Anand Parkash v. Narain Das‑Dori Lal A I R 1931 All. 162 ref.

Safdar Ali v. Crown P L D 1953 .F C 93, Muhammad Aslam v. Crown P L D 1953 F C 115 and All and Bashir v. Crown 1952 F C R1=P L D 1952 F C 71 ref.

Nemo for Appellant.

Fayyaz Ali, Advocate‑General, Pakistan and Abdul Aziz, Advocate‑General, Punjab for Respondent.

The circumstances leading to this reference to a Full Bench are stated in detail in my order of reference (P L D 1953 Lah. 158), dated the 17th March, 1953, which may be read as introductory to this opinion. It is necessary to mention at the very outset that though some of the questions referred might at first sight appear to be abstract questions, they were not at all intended to be subjects of general discussion and were framed in anticipation of the arguments that were bound to be addressed on the main question.

The prisoner was un-represented at the hearing but we have heard Mr. Fayyaz Ali. the learned Advocate‑General of Pakistan, on behalf of the Central Government, while the Crown, as respon dent, was represented by Mr. Abdul Aziz Khan, the learned Advocate‑General of Punjab. Mr. Hamid‑ud‑Din appeared on behalf of another prisoner in a connected case. The leading arguments were addressed by Mr. Fayyaz Ali and these were adopted by Mr. Abdul Aziz Khan and Mr. Hamid‑ud‑Din.

Before I answer the question, I might clear the ground by stating the position as to which there has been no dispute at the bar at any stage of the proceedings. Mr. Fayyaz Ali accepts that the true import of the passages cited in the referring order from the judgments of the Federal Court in Safdar Ali v. Crown (P L D 1953 F C 93) and Muhammad Aslam v. Crown (P L D 1953 F C 115) has been rightly stated in the order of reference. Nor is it disputed by him that the generalisations in question amount to the statement of a principle which is capable of formulation as a general proposition. The question that falls for decision therefore is whether the principle enunciated by the Federal Court is a legal principle which is binding on this Court as a declaration of law under section 212 of the Constitution Act or on the authority of the Privy Council decision in Mata Parshad's case (1925 P C 272), and the Federal Court judgment in Fazal Illahi's case (P L D 1953 F C 35). Mr. Fayyaz Ali's argument is that the question whether killing in exercise of the right of private defence of person or under grave and sudden provocation is intentional, is a part of the law of homicide and that therefore the rule laid down by the Federal Court that when a man acts in exercise of the right of private defence of person 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 case of self‑defence and the loss of control in cases of grave and sudden provocation, is the statement of a legal principle. I had at first some doubt on this point but after hearing the arguments of Mr. Fayyaz Ali have come to the conclusion that the stand taken by him is correct and is supported by the judgment of the Privy Council in Attorney‑General of Ceylon v. Kumaraslnghege Don John Perara (P L D 1953 P C 9), where the Court of Criminal Appeal in Ceylon having made some observations similar to those made by the Federal Court in Safdar Ali's case, the Privy Council took those observations as relating to the law of homicide. Certain observations made by the Federal Court in the case of Ali and Bashir v. Crown (1952 F C R 1=P L D 1952 F C 71), were held by that Court in the subsequent case of Fazal Ilahi as declarations of law, and jud ed b standard which seems to have been applied in that he t cage the observations in question in the present case are undoubtedly a statement of the law. It is true that not only the facts of Safdar Ali's case in which the observation, in question were made by the Federal Court were entirely different from the of the present case but the occasion for the observations was also wholly dissimilar. For that reason alone, however, I cannot follow the course suggested by Allen, an orthodox writer on English Law ( Law in the Making' by Allen, 1927 Edition, page K4) that the humblest judicial officer can disregard the most authoritative declaration of the House of Lords unless he consider that the precedent cited is on all fours, nor do I consider as convincing the example given by that learned author of a House of Lords' decision given in ignorance of an applicable statute not being binding on the lower Courts because it is not a correct state ment of the law. The obligation of a Judge to follow, the Judg ment of a superior Court does not disappear merely because his own view of the law is different or because the judgment of the superior Court was given per incuriam, e.g., in ignorance of a statutory provision. The application of the doctrine of incurium to precedent decisions is limited to precedent of the same Court or a Court of co‑ordinate jurisdiction and with the exception of Drummond v. Drummond (L R 2 Equity Cases 335), which holds that what has a statutory force and effect must prevail against the most authoritative decision of even the Supreme Judge in the Court of Chancery. I am not aware of any decision where that doctrine might have been applied to decisions of a superior Court. Apart from all this, the English Common Law rules governing authoritative precedents are not strictly applicable to Pakistan where by a constitutional direction the law declared by the judgments of the Federal Court is given a binding effect.

Mr. Fayyaz Ali thinks that the rule laid down by the Federal Court is opposed to the statute law of this country and an un interrupted series of decisions extending over almost a century and that it is not correct. He, however, maintains that we are bound by the rule under section 212 of the Constitution Act, irrespective of what our own opinion about it may be, I do not think that the rule in question expressly conflicts with any statutory provision and I do not feel called upon to express my own opinion about its correctness or otherwise. Nor do I wish to indulge in the subsidiary inquiry whether a result that cannot be intended can be held to be within the knowledge of the party not intending that result or whether a person to the extent that he acts in exercise of the right of self‑defence cannot intend the result of his action but that the moment the act exceeds the limits of justification he begins to intend the result, but only to the extent that it exceeds those limits. If the rule in question amounts to a declaration of law within the meaning of section 212 of the Constitution Act or the statement of a principle within the meaning of the Privy Council decision in Mata Parshad s case, we will be bound to follow it as the law of the land and inquiry into its correctness will be irrelevant and a waste of public time and money. Just as it is a contradiction in terms to say that a law made by the Legislature is wrong, no Court in refer ence to the law declared by a Court whose declarations are binding on other Courts can say that the declaration is wrong blinding plain duty of the other Courts is to take the law as declared and it is the business of the Legislature to set right the position if the declaration is considered to be inconvenient or calculated to lead to injustice.

Mr. Fayyaz Ali cited the cases of Maung Kun v. Ma Chi (A I R 1931 Rang. 113 (F B)), Chamarbaghwala v. Parpia (A I R 1950 Bom. 230) and Anand Parkash v. Narain Das‑Dori Lal (A I R 1931 All. 162 (F B)) regarding the duty of a Court in this country when it was confronted with some pronouncement by the Privy Council which was contrary to settled law. In the first of these cases a rule of customary law of inheritance, which was being followed by the Courts in Burma without question was for the first time upset by the Privy Council. On the question arising whether the judgment of the Privy Council which had upset the accepted and settled opinion on the subject should be followed, Page, C. J., observed:‑

"The truth is that the judgment of the Judicial Committee "delivered by Lord Shaw in Ma Hnin Bwin v. U. Shwe Gon (A I R 1914 P C 97), completely upset and revered what had been the accepted and settled opinion on the subject. It was for this reason that the learned Advocate for the respondents, notwithstanding protests from the Bench, for some time persisted in contending that the judgment in Ma Hnin Bwin v. U. Shwe Gon was not in conso nance with the principles of the Burmese Customary Law of Inheritance. But that is a matter with which the Court is not concerned, and if the law as expounded in that case needs correction the remedy lies with Legislature, and not with the Courts. It is the duty of the Court loyally to follow the decisions of the Judicial Committee and to accept the principles of law laid down by that Tribunal."

In the second case it was held by the Bombay High Court that where there is an express provision contained in a statute enacted by the Legislature, even the weighty pronouncements of their Lordships of the Privy Council must give way to such enactment. The case is not very much in point because the obiter dictum of the Privy Council which was supposed to be in conflict with the statute of the country occurred in a case from the State of South Australia where the rule which had the force of the law was different from our own law. In the third case, it was held by a Full Bench of the Allahbad High Court that Courts in India must not depart from a long consistent course of decisions simply on the basis of a dictum or a supposed dictum of their Lordships of the Privy Council or a matter on which it was not directly necessary for their Lordships to decide in the case. Mr. Fayyaz Ali distinguishes this case on the ground that it merely deals with the authority of a dictum by the Privy Council and not with the ratio decidendi of the case. He contends that though the general rule, as laid down by Lord Halsbury in Quinn v. Leathem (1901 A C 495), is that a case is an authority only for the proposition that it decides and not for every decision that may appear to follow logically from the decision because the law is not always logical, there is no occasion in the present case of drawing any logical conclusion from what has been ruled by the Federal Court because the point in issue in the present case is precisely the point upon which the Federal Court has expressed itself in terms too clear to be misunderstood. He maintains that the observations by the Federal Court contain an underlying principle which being the ratio decidendi of the case forms its authoritative element and has thus the force of law, the correct ness of which we are not entitled to question. The rule to be deduced from Muhammad Aslam's case is that the intention to kill being an ingredient of the offence of murder, any doubt as to the existence of that ingredient makes a conviction for murder impossible in law and that the existence of any such ingredient is negatived when the killing is in exercise of the right of self -defence of person or under grave and sudden provocation. Thus the principle laid down is the ratio decidendi of the case and not merely a dictum which we can distinguish or disregard. I think Mr. Fayyaz Ali's contention is sound and that whatever our own view of the correctness or otherwise of the rule in question or of its consequences and implications may be, a matter on which I express no opinion, we are bound under the Constitution Act to act upon it. We therefore agree with Mr. Fayyaz Ali that the answer to questions Nos. 1 and 2 is in the affirmative and that a person cannot be convicted under section 304 (I) of the P. P C. if he kills another under grave and sudden provocation. That' being my view, it is unnecessary to return an answer to the remaining questions.

---I agree with my Lord the Chief Justice and have nothing to add.

---I must give an explanation before expressing agreement. In Ghulam Yusuf v. Crown (P L R 1953 Lah. 409) I had occasion to examine these remarks of Cornelius J. in connection with the burden of proof in cases of insanity and had come to the conclusion that Safdar Ali v. Crown had made no difference to the burden laid by section 105 of the Evidence Act on the accused. In connection with the observation of Cornelius, J. that if "there be reasonable doubt as to whether the act of killing was either un‑intentional or provoked, the benefit will go to the accused person" I remarked 3

"When using this word Cornelius, J. had obviously in his mind the observation of Lord Sankey that malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked'. For in the Penal Code of Pakistan the proof of intention for the purpose of proving murder, does not go hand in hand with the dis proof of provocation. That Code first defines culpable homicide in section 299 and murder in section 300 as acts committed with a certain intention or knowledge and then expressly makes provocation the subject of an exception namely Exception I, to section 300, which states that culpable homicide is not murder if death has resulted from grave and sudden provocation. And on that basis alone can the first part of section 304 have any meaning, for the accused must, in the first instance, have intended to cause death, if he could be held guilty of culpable homicide, and if then he can show that he was gravely and suddenly provoked, he will have the benefit of the first part of section 304. It is for that reason apparently that, when in item (2) His Lordship applied the Woolmington Principle to the Pakistan Law, he made no reference to the element of provocation. It is true that as stated in item (3) of the summary. Cornelius, J. further observed that the plea of self‑defence is founded on the actuation of the accused by the intention to save himself, not by the intention to kill, and that there can be no duplicity of intention; but His Lordship, so far as I can see, had in his mind the observations of Viscount Simon relating to provocation in Homles case (L R 1946 A C 588) and those observations are based on the fact that 'malice' of the British variety comprises both (i) intention and (ii) want of provocation. Self‑preservation is an instinctive action, as that term is understood in modern psychology, while intention is a volitional phase of the mind, referring to an executive function of the will, an intelligent purpose to do a criminal act. When the wind blows litter and dust, we close our eyes instinctively without any volitional effort. That His Lordship was using the word intention as suggestive of an instinctive action is supported by the following further remarks in the same context: 'In such circumstances, intention to kill would be wholly negatived by the instinctive reaction of self-preservation'. But if I have failed to understood the true import of these observations, then since they do not lay down any principle nor refer to section 304, P. P. C. they must be understood as referable to English Law and applicable to the particular facts of Safdar Ali's case and the particular state of Safdar Ali's mind".

In cases of apparent conflict, the first duty of a Judge, as Mr. Fayyaz Ali said, was to reconcile the conflict, if possible. When writing the judgment of Ghulam Yusuf v. Crown, I was persuaded to think that a reconciliation was possible in view of the fact that Cornelius, J. was most of the time referring to English Law and did not particularly refer to section 30, P. P. C. at all. Mr. Fayyaz Ali, however, argued, and I think rightly, that a Judge particularly of a Court of super‑eminent jurisdiction, must be presumed to carry in his mind the existing law, a presumption that demolishes one‑half of the foundation upon which I built my previous view. Notwithstanding these arguments, I could not persuade myself to think that the mere statement of a mental fact‑that the intention to save is inconsistent with the intention to kill, or that self‑preservation is a volitional rather than an instinctive phase of the mind‑is a declaration of the law until I learnt from the judgment of the Federal Court Fazal Elahi v. Crown (P L D 1953 F C 35) that statements of opinion were statements of law. It will be instructive to reproduce the following passage from that judgment:‑

"The second reason is not less important. It is relevant to the following observation appearing in the judgment of Kayani, J.:‑

'For the same reason, I am not impressed by the argument that questions put by the Court of Appeal should not be in the nature of cross‑examination. If the power to call in evidence lies with the Court, and the Court exercises it, I do not understand why it should sometimes have to say to the prosecutor 'I am not going to cross‑examine the witness lest I should betray an anxiety to bring out the truth if indeed the object of cross‑examination is to bring out the truth.'

The passage appears to have reference to certain clear statements of opinion, which were statements of law contained in this Court's judgment in the case of All and Bashir, of which that from the judgment of Akram, J. has been quoted above. It will be observed that Akram, J. regarded he fact that some of the questions put (scilicet by the Court) were in the nature of cross‑examination which had the effect of nullifying the benefit of what may have been stated by the witness earlier in favour of the appellants as being plainly wrong procedure‑--a violation of the fundamental rules of practice necessary for the safe administration of criminal justice.' In one of the other judg ments a number of the questions put by the Court to the Tehsildar were produced, and the following observation was made:‑

"The criticism that these questions were of the nature of cross‑examination, and as such improper questions to be put by the Court was found difficult to meet. In all the circumstances, it would have been much better in every way, if the Court had not put these questions itself. The Crown was represented by an Assistant Advocate‑General who cross‑examined the witness at some length a little later."

----The passage quoted above from the judgment of Kayani, J. can be read in no other sense than that the learned Judge did not consider himself bound by these statements of the law relating to the matter of cross‑examina tion by a Court of Appeal which has the effect of 'nullifying the benefit of what may have been said by the witnesses earlier in favour of the appellants.' Allowing that the view of the learned Judge is based upon his own conception of his duty to advance the interest of justice, it is nevertheless impossible to understand how he could have felt justified indirectly, and if the words employed be an index to his attitude at the time, almost casually, overruling the clear pronouncement of law on the subject by this Court."

To understand these remarks, it is necessary to point out that while the theme of Akram, J.'s criticism was such cross -examination by the High Court as "had the effect of nullifying the benefit of what may have been stated by the witnesses earlier in favour of the appellants," Cornelius J. objected to the questions being at all of the nature of cross‑examination "and as such improper questions to be put by the Court," irrespective of their effect on the defence. Akram, J. in a later judgment S. M. Hag v. The Judges of the High Court (P L D 1953 F C 247) pointed out that the earlier judgment had lost sight of the following sentence in this particular context: "At the same time the prayer for an opportunity to adduce evidence in rebuttal made by the defence was rejected"‑a circumstance which reduces his criticism merely to a denial of opportunity to rebut the new case. Now since my opinion was that the Court of appeal had power to put questions in the nature of cross‑examination. I had in mind the provisions of section 165 of the Evidence Act and section 375 of the Code of Criminal Procedure and the doctrine of per incuriam‑arid the Federal Court pointed out in the above passage from Fazal Ilahi v. Crown that I should have considered myself bound by "these statements of the law relating to the matter of cross‑examination by a Court of Appeal which has the effect of nullifying the benefit of what may have been said by the witnesses earlier in favour of the appellants," and so far as my judgment went, it said nothing in respect of the words in italics. I must understand the learned Judges to be concerned about by being of the view that a Court of appeal can put to a witness questions in the nature of cross‑examination and to co‑relate my remarks to the observation contained in the judgment of Cornelius, J. not to those in the judgment of Akram, J. In that case, the following opinion of Cornelius, J. would in their Lord ships' view be a "statement of law", not by Cornelius, J. alone but by the entire Court.

"The criticism that these questions were of the nature of cross‑examination, and as such improper questions to be put by the Court was found difficult to meet. In all circumstances, it would have been much better in every way, if the Court had not put these questions itself."

If that be a statement of law relating to cross‑examination, a fortiori is this a statement of saw relating to self‑defence, that the plea of self‑defence is founded on the actuation of the accused by the intention to save himself, not by the intention to kill and that there can be no duplicity of intention. I say a fortiori because that was an opinion expressed only by one of the three Judges, while in the present case the other two Judges have "generally" agreed with the findings of Cornelius J.

I, therefore, respectfully concur in t e view o 'my Lord the Chief Justice, based as it is on the opinion of the two Advocates- General and the counsel for the accused there being no third party not without a feeling of sorrow that my feeble effort at reconciliation has failed.

A. H. Reference answered.

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