' SAAD SAOOD JAN, J.---The appellant, Abdul Haque, was convicted by the Additional Sessions Judge-III, Quetta, under section 302, (as amended), Pakistan Penal Code, for causing the death of Muhammad Shafique deceased, and was sentenced to suffer imprisonment for life and payment of fine. He filed an appeal against his conviction and sentence. The State also preferred an appeal seeking imposition of the sentence of death upon him. The complainant party too came up with a revision petition seeking the same relief as was prayed for by the State. The three matters were, in the first instance, heard by a Division Bench: During the hearing the State did not pursue its appeal.
The Bench was thus left only with the appeal of the appellant and the revision petition filed by the complainant the learned Judges comprising the Division Bench upheld the conviction of the appellant on the charge under section 302 but disagreed on the question of sentence that could be lawfully passed upon him. Consequently, the matter was referred to a third Judge. The learned third Judge enhanced the sentence of the appellant to death. The appellant has preferred this appeal against his conviction and sentence under Article 185 (2)(a) of the Constitution.
2. The deceased was being tried by the Additional Sessions Judge, Quetta for causing the death of the appellant's father. On 10-2-1993 the judgment was to be announced by the Court. At 11-00 a.m.
On that day the deceased was brought to the court-room in police custody. The appellant was sitting by the door of the court-room. As the deceased passed by the appellant there was some exchange of words between them. The appellant who was carrying a pistol shot four times at the deceased and thus fatally wounded him. The appellant was arrested at the spot with the weapon.
A case was registered at Police Station Civil Lines on the same day at 12-25 p.m. On the statement made by Abdul Hadi, brother of the deceased.
3. At the trial, the appellant pleaded not guilty to the charge against him. He stated: "I was sitting towards northern side on the last chair of the last row of chairs while the accused Abdul Haleem was sitting along with me on the chair towards southern side. As soon as deceased Muhammad Shafique came near me, he abused me with low voice and said that he will fuck my wife. He further said that he would fuck my wife and the wives of my tribe, if he is acquitted. When deceased Muhammad Shafique was abusing me, at that time Abdul Aziz Constable and Yar- Muhammad N/Q were standing near me. I learnt about the names of Abdul Aziz Constable and Yar Muhammad N/Q later on. When deceased Muhammd Shafique called me names about my wife I felt darkness before my eyes and I lost balance of my mind and thereafter I did not know as to what I did."
' He examined two witnesses in his defense.
4. There was reliable ocular testimony available on the record to hold the appellant responsible for causing the death of the deceased. The appellant alleged that while entering the court-room the deceased had sworn at him, saying that, if acquitted, he would commit Zina with his wife and with the wives of the other members of his tribe. The evidence led by the prosecution is not inconsistent with his version. There can he little doubt that these abuses, obnoxious as these were, could cause grave and sudden provocation to a man whose father had been killed by the person uttering the same. Under the former provisions of the Pakistan Penal Code, the case of the appellant would have squarely fallen under Exception 1 to section 300 thereof and the appellant could have been convicted only of culpable homicide not amounting to murder.
5. Now section 300 stands replaced by a new section by the Criminal Law (Second Amendment)
Ordinance, 1990. The Ordinance has been kept alive by a series of subsequent Ordinances. The new section 300 defines Qatl-iAmd: "Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such persons, is said to commit Qatl-i-Amd."
' Unlike the old section, it contains no exception. The new section 302 provides the punishment for Qatl-i-Arvid in the following terms: "Whoever commits Qal-i-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to th.:i facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Visas is not applicable."
The majority of the Judges in the High Court were of the view that as the new section contained no exceptions, the plea of diminished liability on account of grave and sudden provocation was no longer available to an accused person. The view of the majority has been challenged on behalf of the appellant before us.
6. The plea of diminished liability in respect of offences relating to human body committed under grave and sudden provocation has been well-recognized in the sub-continent for more than a hundred years. There is a good reason for that: a person who commits culpable homicide out of compulsions, ethnical or otherwise, not brought about by himself, cannot in the matter of punishment be placed on the same footing as a cold-blooded murderer or a hired assassin. A serious question for consideration arises whether the Criminal Law (Second Amendment)
Ordinance, 1990, was intended to do away with the preferential treatment that had always been accorded to a persons who took another person's life under circumstances where he had lost all self-control. The question is of a great fundamental importance not only for the reason that it will affect a large number of pending cases but also because it has a bearing on the attitude and reflexes of the people under the most testing circumstances when their natural reactions compel them to act in a certain manner. It is, therefore, necessary that the question should be considered by a larger Bench consisting, preferably, of seven Judges. The matter may be placed before the learned Chief Justice for necessary orders.