HOMICIDE,
GRAVE PROVOCATION: NEED FOR LAW REFORM
By:
USMAN QUDUUS
LL.M., International Islamic
University,
Research and Reference Officer Islamabad High Court,
The law in
Exception
to Section 300
When culpable homicide is not murder. Explantion 1. 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 or causes the death of
any other person by mistake or accident. The above exception was subject to the
following provisos:
First- that the provocation is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to
any person.
Secondly- that the provocation is not given by
anything done in obededience to the law, or by a
public servant in the lawful exercise of the powers of such public servant.
Thirdly- That the provacation
is not given by anything done in the lawful exercise of the right of private defence.
Explanation:
whether the provocation was
grave and sudden enough to prevent the offence from amounting to murder is a
question of fact.
The punishment for death caused under
provocation was provided in Section 304:
304
The exceptions to 300 were emitted in the law
of Qisas and Diyat as per
the directions given in Federation of Pakistan Vs Gul
Hasan Khan PLD 1989 SC 633. The judgment was
substantiated with various assumptions justifying homicide as a result of grave
provocation as intentional murder. This was contended by Mr
Justice Taqi Usmani that
Islam does not recognize grave provocation as mitigating circumstance. It was
postulated that Islam does not recognise murder
inconsequence of grave provocation and various dedecuction
were drawn to uphold thesis.
The view of islamic law is quiet different on the issue, as can
be gleaned from various traditions of the Holy Prophet Muhammad (P.B.U.H).
Ibn Abi Adi related to us from Uthman al Shahmim from 'Ikrama that aman had an umm walad (slave
mother of the master's child), who constantly used bad words about the
Messenger of Allah (P.B.U.H). The man used to stop her from doing this, but she
persisted. He, therefore, killed her (one day) and the matter was reffered to the Messenger of Allah (P.B.U.H). He deemed the
sheddinng of her blood as lawful.
This is manifest from the traditions that
provocation has been approved in the above mentioned circumstances by the Holy
Prophet (P.B.U.H).
In Ghulam Yaseen versus The State (PLD 1994 Lahore 392), Justice Khalil ur Rehman
Ramday, judge held a Qatl committed on account of ghairat is not the same thing as Qatl-e-Amd pure and simple and the persons
found guilty of Qatl
commited on account of Ghairat
do deserve concession which must be given to them. The least that can be done
in the present stage of law is to convict such like persons, guilty of Qatl e Amd
committed on account of ghairat, under clause (c) of
section 302, P.P.C, as such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam."
Further the Honorable judge opined injunctions
of Islam in the form of 'Ahadeeth'
relating to Qatl
on account of Ghairat does not find any reflection in
the specific provisions relating to Qatl which now stands incorporated in the Pakistan Penal
Code. The omission is understandable as the process of bringing the old
provisions of the law on the subject in conformity with the injunctions of
Islam, is still in its infancy and the subject in conformity with the injuctions of Islam, is still in its infancy and attaining
expertise about the law which has now been put into practice is likely to take
some time. There is not dearth of Ahadeeth
recognizing the right of an individual to defend himself against any aggression
against him or his property or the right to defend other individuals, but
present law on the subject makes no specific mention of giving any allowance to
persons causing injuries or even Qatl in the exercise of such right. It is hoped that by the
present legislation on the subject, which is presently only in the form of an
Ordinance, is laid before the legislature, due notice will be taken of these
omissions and others in the law presently in force."
Islam does infact recognise mitigating circumstance as a case for reduction
in punishment as dicernable from the tradition:
The anamoly of
amended Qisas
legislation is perceptible from the fact that presently, the Superior Courts
have recognised provocation as a mitigating
circumstance towards lesser punishment. 2011 SCMR 593 prescribes the law as:
"Plea of grave and sudden provocation on account of abusive language can
be treated as a mitigating circumstance in awarding sentence under Tazir, even if such plea is not available and does not get
any protection in the law".
The fallacy of the existing legislation is also
evident on the touchstones of Shariah from the
following amended Section 303, of Pakistan Penal Code which says,
"Qatl committed under 'ikrah-i-tam’ or 'ikrah-i-naqis' Whoever
comits qatl,________
(a) under
ikrah-i-tam shall be
punished with imprisonment for term which may extend to twenty-five years but
shall not be less than ten years and the person causing 'ikrah-i-tam' shall be punished for the kind of qatl committed as consequence of his ikrahi-tam;
or
(b) under
'ikrah-i-naqis' shall be punished for the kind of qatl committed by him and the person causing 'ikrah-i-naqis' shall be punished with imprisonment for a
term which may extend to ten years".
This section concedes duress as a mitigating
circumstance towards lesser punishment contrary to the reasoning of Honorable
Judge Mr Justice Taqi Usmani in case, 'Federation
of
The development of law on lessor
punishment as a mitigating circumstance as perceivable from cases 'Ahmad Nawaz and
another versus State (2011 SCMR 593) and Ghulam Yaseen versus State (PLD 1994 Lahore
392)' manisfests that the previous law on homicide
was more nigh to Islam and Shariah. Present law needs
reformation inaccordance with the decisions 2011 SCMR
593 and PLD 1994 Lahore 392 so that culpable homicide committed inconsequence
of grave provocation finds mention in the law, this has been argued by Mr Nyazee in his exercises in intrepretation on grave and sudden provocation dated:
December 9, 2000 that, a wifes paramour who is killed
in retaliation, if a ghar-muhsan, his blood is
protected and he is a masum ud
dam. This may be partly true as his punishment is hundred lashes but if a
murder is comtited in grave provocation than this
would not be absolvable rather subject to lesser punishment of Qatl under Tazir as was
previously the case in the Anglo Saxon Law. The writer further argues that days
of shubah fi’d dalil are over as everyone is presumed to be guilty until
proven by law. This argument also does not hold good as the person commiting murder in consequence of grave provocation does
not act as a Court of law. Imran Nyazee
Khan further says that in case such a right is recognised
than it would also be available to women. This argument is also not tenable as
law recognises equal protection for both men and
women. A woman committing murder in consequence of gave provocation can be
extended this right which will do no harm as the society is structured on
patriarchal foundations, the Prophet has said:’ the liability for three things
has been lifted from my ummah: mistake,
forgetfulness, and duress.' another tradition also narrated in the article reffereed above reads" the pen has been lifted for
three things: mistake, forgetfulness and duress." Imran
Ahsan Khan Nyazee himself
elucidated in his article, ' each one of these terms can be interpreted to
include cases of grave provocation. There is no reason why the jurists should
interpret "forgetfutlness" for forgetting
to pray or for eating during a fast out of forgetfulness. What about a person,
who in a rage of passion has forgotten his self control."
References:
1. Ahmed Nawaz and another VS The State, 2011 SCMR 593 P.603 F
2. Federation of
3. Gulam Yaseen and to
other VS The State PLD 1994
4. http://www.nyazee.org
(exercises in intrepetition)
5.