P L D 2020 Supreme Court 201
Penal Code (XLV of 1860)---
----Ss. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), S.342---Qanun-e-Shahadat (10 of 1984), Art.121---Qatl-i-amd---Re-appraisal of evidence---Defence plea of sudden and grave provocation---Admission or confession by accused in his statement under S. 342, Cr.P.C, in circumstances where prosecution on basis of its own evidence had failed to prove its case---Whether such statement of accused could be relied upon for convicting the accused---Held, that prosecution on basis of its evidence had failed to prove its case beyond reasonable doubt as presence of eye-witnesses at scene of occurrence was doubtful and contradictions were found between their statements on material aspects---However, the accused had admitted in his statement under S.342, Cr.P.C. that he killed his sister and her paramour (deceased) under grave and sudden provocation when he saw them committing zina---Such statement of the accused made under S.342, Cr.P.C was to be accepted in its entirety without requiring the proof under Art.121 of Qanun-e-Shahadat, 1984---Said statement, when taken as a whole, established sudden and grave provocation, and it was not improbable or unbelievable, nor was it inconsistent with the overall facts and circumstances of the case; therefore, it could safely be relied and acted upon (for convicting the accused)---Case of accused to the extent of deceased paramour fell within the scope of S.302(c), P.P.C, instead of S.302(b), P.P.C and his conviction was modified as such with a sentence of 15 years rigorous imprisonment, whereas his conviction to the extent of murder of his sister had already been set aside in lieu of a compromise with the legal heirs---Order accordingly.
Criminal trial---
----Prosecution---Burden of proof---Scope---Burden, in a criminal case, to prove the guilt of the accused was always on the prosecution---Court, in the first instance, was to discuss and assess the prosecution evidence, in order to arrive at the conclusion as to whether or not the prosecution had succeeded in proving the charge against the accused on the basis of its evidence.
Qanun-e-Shahadat (10 of 1984)---
----Art. 121---Criminal trial---Defence plea---Shifting of burden from prosecution to the accused---Scope---Burden shifted upon the accused under Art.121 of the Qanun-e-Shahadat, 1984 to prove his defence plea, only when a prima facie case was made out against him by the prosecution on the basis of its evidence---If the prosecution failed to prove its case against the accused, the question of shifting of burden on the accused did not arise.
Criminal trial---
----Defence plea---Examination of such plea by the court---Scope---Burden of proof---Scope---In a case where the accused had not taken any specific plea (e.g. self defence, grave and sudden provocation etc.) or had not produced any evidence in his defence, the court was to decide the question of success or failure of the prosecution in proving the charge against the accused on the basis of the prosecution evidence alone---Where the accused had taken a specific plea or had produced evidence in his defence, then the court was to appraise the prosecution case and the defence version in juxtaposition, in order to arrive at a just conclusion---Even in such situation the burden remained on the prosecution to prove the necessary ingredients of the offence charged against the accused, and it did not shift upon the accused merely by taking a defence plea or producing evidence in his defence.
Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Defence plea of sudden and grave provocation---Court was not to examine such defence plea in isolation from the prosecution evidence---Approach adopted by court of not appraising the prosecution evidence at all and convicting an accused, under S. 302(b), P.P.C., on the basis of its finding that he had failed to establish his defence plea of grave and sudden provocation was contrary to the law declared by the Supreme Court in the cases of Wali Muhammad v. State 1969 SCMR 612 and Ashiq Hussain v. State 1993 SCMR 417---Accused could not be convicted on the ground that his defence plea appeared unconvincing---Prosecution was duty bound to prove its case against the accused beyond reasonable doubt on the basis of its own evidence and was not absolved of this duty even if the accused had taken a defence plea.
Penal Code (XLV of 1860)---
----S. 302 ---Qatl-i-amd---Defence plea---'Grave and sudden provocation' and 'honour killing'---Distinction---In case of honour killing the act of murder was well thought out, calculated and pre-mediated, while in case of grave and sudden provocation the act was committed on the spur of the moment without any pre-planning or deliberation---Family honour may be at the root of both the acts, still there was a difference between the two.
Penal Code (XLV of 1860)---
---S. 302---Qatl-i-amd---Defence plea---'Grave and sudden provocation'---Meaning and scope.
Expression "grave and sudden provocation" was used by the Legislature in Exception-1 to the erstwhile section 300 of P.P.C. as: "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation." It is clearly spelt out from the said provisions that the provocation offered by the act of the victim must be so grave and sudden that it would deprive the offender of the power of self-control. Provocation in law thus consisted mainly of three elements: (i) the act of provocation, (ii) the loss of self-control, and (iii) the retaliation/reaction proportionate to the provocation. The relationship of these elements to each other, particularly in point of time, was of the foremost importance to determine whether there was time for passion to cool and reason to resume.
Doctrine relating to provocation depended on the fact that it causes, or may cause, a sudden and temporary loss of self-control,whereby malice which was the formation of an intention to kill or to inflict grievous bodily harm, was negatived.The proportionality of the reaction to the provocation was tested on the touchstone of the reaction expected from a reasonable person. What a reasonable man would do in certain circumstances depended upon various factors including the customs, traditions, social and cultural values, and way of life of the society to which he belonged. No abstract standard of reasonableness could be laid down, in this regard.
Criminal Procedure Code (V of 1898)---
----S. 342---Power of Court to examine the accused---Scope and purpose.
Primary purpose of section 342, Cr.P.C. was to enable the accused to know and to explain and respond to the evidence brought against him by the prosecution. It was essential that attention of the accused must be brought to all the vital parts of the evidence brought against him by the prosecution, especially if he was an ignorant person who could not be expected to know or understand what particular parts of the evidence were or were likely to be considered by the Court to be against him. The purpose was to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain.
Criminal Procedure Code (V of 1898)---
----S. 342---Admission or confession by accused in his statement under S.342, Cr.P.C.---Probative value---Admission or confession which was improbable or unbelievable, or was not consistent with the overall facts and circumstances of a case may not have any probative value and thus could not be relied upon by the court for reaching to a conclusion.
Criminal Procedure Code (V of 1898)---
----S. 342---Prosecution failing to prove its case---Admission or confession by accused in his statement under S.342, Cr.P.C.---Evidentiary value---Where prosecution had failed to prove its case, the statement of accused under S.342, Cr.P.C., could be taken into consideration by the court (for convicting him) but in its entirety---Reliance could not be placed on only inculpatory part of such statement---Principles.
If the prosecution failed to prove its case against the accused, the court could take into consideration the statement of the accused under section 342, Cr.P.C. whether in favour of or against the accused; but it must take into consideration such statement in its entirety and could not select and place reliance on the inculpatory part of the statement only. However where there was prosecution evidence which disproved the exculpatory part of the statement of the accused under section 342, Cr.P.C., then reliance could be placed on the inculpatory part of the statement by excluding the exculpatory part, but not otherwise. In other words, if the prosecution had proved a case against the accused beyond reasonable doubt, the court may, if it deemed expedient to get further support, take into consideration also the inculpatory part of the statement of the accused under section 342, Cr.P.C., only if the prosecution evidence negated the exculpatory part of the statement and it could be safely severed from the inculpatory part but not otherwise. Even if this exercise was not undertaken the conviction of the accused stood as the prosecution had already proved its case against the accused beyond reasonable doubt, on the basis of its evidence. The inculpatory part of the statement was not being considered to fill up gaps in the case of the prosecution but simply to draw support in a case already established by the prosecution and no more.
Once the prosecution evidence was disbelieved, rejected or excluded from consideration, the facts explained by the accused in his statement under section 342, Cr.P.C. were to be accepted in their entirety without requiring their proof. The court was then to examine the said facts to give due effect to the statement of the accused, under the law, whether in favour of or against the accused. The object of such examination was to determine whether or not the facts narrated by the accused constituted an offence under the law or fit into any exception of the offence provided under the law.
S. 302(c)---Qatl-i-amd---Illicit sex with a female family member---Defence plea of sudden and grave provocation---Scope---Supreme Court observed that our culture and social values reflected in the jurisprudence developed so far was that an act of illicit sex with a female family member of the offender was considered sufficient to cause provocation so grave and sudden that it would deprive the offender of the power of self-control.
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