Law: Pakistan Penal Code, 1860

Section: 100,304,PartI

Self-defence--- Causing death in exercise of right of, or under grave and sudden provocation-Accused should be taken to have intended to cause death-Penal Code (XLV of 1860), Ss. 100 and 304, Part I. However unexpected the occasion for striking in self defence and whatever the loss of self-control under provo­cation, a person who causes the death of another by smashing his skull with repeated blows on the head with a club must be taken to intend causing death or such bodily injury as is likely to cause death, and the same intention must be attributed to a person who kills another by stabbing him in the heart or by blowing his brains out by voluntarily exploding a gun. In English law killing in exercise of the right of private defence, called justifiable homicide, is always intentional and so is killing under grave and sudden provocation, called intentional or voluntary manslaughter (vide Odgers on the Common Law, Vol. I, page 27, 3rd Edition by Roland Burrows 1 Outlines of Criminal Law by Kenny, pages 116 and 117). The defence, however, relied on the of the Federal Court in Safdar Ali v. Crown (P L D 1953 Federal Court 93), in support of the contention that if it be found that the appellant acted in exercise of the right of private defence of person, the offence committed is not punishable under section 304, Part I of the Penal Code even if such right be held to have been exceeded. Consequently a set of seven questions bearing on the issue raised was referred to a Full Bench. ORDER OF REFERENCE MUHAMMAD MUNIR, C. J.---These three appeals have been pending with me since 9th February, the delay in their disposal being due to a difficulty created by a judgment of the Federal Court. In Criminal Appeal No. 738 of 1952 Khawaja Nazi r, Ahmad relies on the judgment of the Federal Court in Safdar Ali v. Crown (P L D 1953 F C 93), n support of the contention that if it be found that the appellant acted in exercise of the right or private defence of person, the offence committed is not punishable under section 301, Part I of the Penal Code even if such right be held to have been exceeded. The passage or which reliance is placed by the learned counsel occurs in the…

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