' In a trial held by the Sessions Judge, Multan, appellant Muhammad Shafi son of Mohammad Aslam aged 30 years, was convicted and sentenced, on 4-5-1976, to life imprisonment and a fine of Rs, 1,000. In default of payment of fine he was to suffer further one year's R. I. The amount of fine, if realized, was ordered to be paid to the heirs of the deceased. He has appealed.
2. Prosecution case briefly stated is that both, the appellant and the deceased were having religious education in a mosque in Chak No, 112/10-R, Tehsil Khanewal. Appellant was resident of Ahimadpur East, District Bahawalpur. The deceased, on a monthly remuneration of Rs, 10 also, used to clean the mosque. A few days before the occurrence, the appellant was assigned the job of cleaning the mosque and the deceased was relieved of this duty. This annoyed the deceased and the two quarrelled over the matter, but on the intervention of Maulvi Ata Muhammad P. W., the situation was saved.
' On 26-4-1974 at about 4-00 p. m. Ata Muhammad. P. W. 5, Faizullah P. W. 6 and Muhammad Nawaz (given up) were standing at the gate of the mosque. They heard an alarm from the hujra of the mosque. They rushed to it and saw the appellant inflicting blows on the head of the deceased with an iron handle (P. 3) of a hand-pump. The deceased was bleeding profusely. They apprehended the appellant. Many more persons gathered there in the meanwhile. Ata Muhammad P. W. 5 and some other persons took the deceased in an injured condition to the Civil Hospital, Jahanian, where he was medically examined. On the advice of the doctor, the deceased was taken to Nishter Hospital, Multan, where he succumbed to the injuries on the following morning.
Ata Muhammad P. W. Reported the incident to the police where on his statement F. I. R. Exh. P. A.
Was lodged at 6-15 p. m.
3. Necessary investigation was conducted by S. I. Maqbul Elahi Cheema P. W.
11. On 27-4-1974, Masoodul Hasan A. S. I. (P. W. 9) prepared the inquest report Exh. P. F. In respect of the dead body of Abdul Ghaffar (deceased) and despatched the same to the mortuary for post- mortem examination.
4. Dr. Ikramul Haq P. W. 2, Medical Superintendent, Civil Hospital, Multan, performed post-mortem examination and the deceased was found to have four contused wounds on his head. The death in the opinion of the doctor, occurred due to shock, haemorrhage andlaceration of brain due to the compound communited fracture of skull involving left temporal, parietal and occipital bones. The injuries weresufficient to cause death in the ordinary course of nature
5. The appellant, at the trial, pleaded not guilty. In his statement under section 342, Cr. P. C. He stated :- "On the day of occurrence, I came to my residential room which was inside the mosque compound.
I saw that the deceased was committing sodomy with Rafique, another fellow student of tender age. Holy Book and other religious books were lying nearby. I took it as sacrilegious to the mosque and the religious books and I blew up in anger and lost self-control and under grave and sudden provocation, I attacked the deceased with the handle P. 3 which was lying nearby."
6. Ata Muhammad P. W. Admitted in cross-examination that at the time the appellant was apprehended he had told him that since the deceased was committing sodomy with Rafique, he had caused the injuries,
7. The learned trial Judge on this plea of the appellant, recorded a finding :- "The accused has pleaded that he caused injuries to the deceased because he saw him committing sodomy with Rafique, another fellow student of tender age in a residential room inside the mosque compound. This plea does not smack of fabrication and is not an afterthought. Maulvi Ata Muhammad has admitted in his cross-examination that when he apprehended the accused at the time of occurrence, he inquired from him as to why he had attacked the deceased and he told him that since the deceased was committing sodomy with Rafique, another student, he had caused him injuries. There is no direct evidence on record as to in what circumstances the accused attacked the deceased. The only explanation offered in this behalf is by the accused himself which in the total absence of any other evidence cannot be discarded altogether particularly in view of the statement of Maulvi Ata Muhammad made in his cross-examination. I, therefore, hold that the plea raised by the accused that he attacked the deceased because he was committing sodomy with a fellow student does not appear to be improbable."
8. The occurrence in the case is not in dispute. Before the learned trial Judge the appellant's case was that on the facts proved he was entitled to the benefit of Exception Ito section 300, P. P. C. And therefore, liable to be punished under section 304(1), P. P. C. Reliance was placed on Abdul Ghafoor v. The State (1). In that case the accused was given benefit of this exception as he had killed the deceased on seeing that he was defiling the Holy Qur'an. The learned trial Judge was of the view that the case cited was distinguishable. Any Muslim on seeing the Holy Qur'an being desecrated could be provoked to a degree where he can be said to have acted in total loss of self-control.
According to the trial Judge however, in the instant case, no such situation prevailed. The act of sodomy was being committed in a room which, though situated in the compound of the mosque, was not mosque itself and therefore the act of sodomy in that room was not such an act as could lead the accused to a total loss of self-control and mental equilibrium." The appellant was thus convicted for the offence or murder under section 302, P. P. C. {{FOOT NOTE}}
(1) 1968 P Cr. L J 119 {{FOOT NOTE}}
9. Learned counsel for the appellant has raised the same plea before me. It was argued that the learned trial Judge has not fully appreciated the case cited before him.
10. Learned State Counsel, on the other hand, argued that the view taken by the trial Court is not open to any exception. He reiterated the reasoning of the trial Court in support of the argument.
11. The only aspect of the case therefore, to be seen is if on the finding given by the learned trial Judge a case of grave and sudden provocation is made out so as to extend the benefit of Exception I to section 300, P. P. C. To the appellant. The indulgence which is shown by law in such cases is a condescension to the frailty of human nature to the furor brevis, which while frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the A fact which he would extenuate is committed. In recognizing provocation as a mitigation of the crime law respects the infirmities and imbecilities of human nature. It recognizes it as a frailty because it is beyond its power to check or regulate. For, given sufficient provocation, men will act in defiance of the law. And law would be cruel and unjust if it attempted to punish men for acts done when they were themselves the victims of an irresistible impulse. These are some of the basic principles which have received statutory recognition couched in Exception I to section 300, P. P. C.
12. In accepting such a plea as an extenuation, recognized principles are that the offender receives-
(i) grave and sudden provocation ; (ii)in consequence of which he is deprived of the power of self-control.
13. In the case cited these principles were appreciated thus : "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 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. It has also been held that 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 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 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 Exception I to section 300, P. P. C., will therefore not be governed by any hard and fast rule."
The question whether the offender acted under the impulse of grave and sudden provocation, is a question of fact and has to be established or inferred like any other fact. However, in forming the view whether the accused acted under such an impulse many factors, such as the age of the accused, his environments, his occupation, are to be kept in view. No hard and fast rule can be laid down in such cases. Much depends Upon individual character of an accused person and that element cannot be ignored in the determination of this matter. The case when examined in the light of these principles, does not pose any difficulty. It is an admitted fact that the appellant had come from a far flung place for receiving religious education and so also the deceased. Both were living in the mosque. The hujra is in the vicinity of the mosque. Copies of the Holy Qur'an were also kept in that room. In these environments any person like the present appellant, could reasonably be led to lose self-control at the sight of the fellow student committing sodomy in the hujra of the mosque. I am therefore, of the view that the appellant had caused the death of the deceased under grave and sudden provocation and was entitled to the benefit of Exception Ito section 300, P.
P. C. His case therefore, would fall under section 304(I), P. P. C. And not under section 302, D P. P. C.
Consequently, I alter the conviction of the appellant from under section 302, P. P. C. To one under section 304(1), P. P. C. He was convicted on 4th May, 1976. He remained in jail for some titre.
Considering the nature of the provocation received by him, my view is that the sentenc already undergone would be sufficient to meet the ends of justice. Accordingly his sentence is reduced to the period already undergone by him. Keeping in view the fact that the appellant was a student, I also reduce the, sentence of fine to Rs, 500 (Rupees five hundred only). In default of payment of fine, he will have to undergo six months' R. I. The fine if realised, shall be paid to the heirs of the deceased. The appellant shall be released forthwith if he is not required in some other case, subject to the payment of the amount of fine.