P L D 1981 Lahore 83 (PLP)

In a nutshell, Muhammad Rafique appellant was tried alongwith his father Abdul Hameed for the murder of Mazhar Ali d sed under section 302/34 said to have been committed by them in furtherance of common intention on the allegations that the appellant had at 10/11-00 p.m. on the night of incident taken the deceased from Hujra f one Sher Rehman on the pretext that the appellant had some business with the deceased. Riaz Hussain and Rafaqat Hussain (P. W. 6/7) who were also present in the Hujra accompanied the appellant and the deceased to the house of the former. The father of the appellant was already inside the house and exhorted the appellant to do away with the deceased, for he had brought insult to them. The appellant and his father caused one injury each to the deceased in the chest and abdomen with chhuris. The appellant as well as his father repudiated the charge as false. However, the appel­lant admitted that he had stabbed the deceased with a different version that the .deceased had tresspassed into his house at midnight to commit rape on his wife Mst. Zareena. Ire had killed the deceased in exercise of his right of private defence of body.

2. Learned Additional Sessions Judge before whom trial was he)# rejected the prosecution case with the finding that the story put forth by the prosecution did not appeal to common sense. The occurrence had taken place in entirely different circumstances. It was likely that the deceased had an affair with Mst. Zaceena and had visited the house of the appellant on an invitation by her. The allegation that father of the appellant had also, caused injury to the deceased was also turned down. Right of private defence of body was conceded in favour of the appellant but it wan held that he could have avoided taking the life of the deceased and had caused more harm than was necessary. Consequently, father of the appellant was acqditted and the appellant alone was held guilty for the offence of culpable homicide not amounting to murder under section 304(I), Pakistan ;Penal Code with award of sentence of rigorous imprisonment for seven years plus a fine of Rs. 1,000.

3. Mr. Zam,eer Hussain learned counsel for the appellant had repeated the argument already noted in the order admitting the petition to hearing. It is wrong to say that learned Additional Sessions Judge had not accepted statement of the appellant that he had right of private defence of body. As indicated above learned Additional Sessions Judge had, however, held that the appellant head exceeded the said right in causing fatal injuries to the deceased. The question whether or not the accused had exercised the right of private defence within the limits permissible in law or had caused more harm than was necessary has to be determined in the context of overall circumstances of the case and not merely on. the statement of the accused.

4. It wars next urged on behalf of the appellant that the case can be looked at from a different angle for the purpose of disposal of the instant application. Assuming, but not conceding that the deceased had entered the house at midnight in furtherance of adulterous relations with the wife of the appellant, the case will be also covered by Exception (I) to section 300 Pakistan Penal Code. Presence of a stranger inside the house at midnight obviously for committing adultery should be revolting to sense of decency and common ;moral values of the society and should constitute grave and sudden provocation and deprive a person of any indifferent substance of the power of self-control. Imposition of penalty in such cases is regulated by different considerations and the accused are generally let off with nominal sentences.

5. A against it learned counsel for the State contended that the appli­cation was liable to be rejected on the short ground. that the case whether covered bye Exception I or Exception II of section 3,00, Pakistan Penal Code fell within the prohibition of subsection (1) of section 497, Cr. .P. C. Power to grant bail under section 426, Cr. P. C., was not wider than the power under section 497/498, Cr. P. C. A bare reference to the judgment of Supreme Court in Abdul Ghaffar v. Anwarul Hassan (1978 S C M R 149) should suffice to reject this contention. It was ruled in this case that appellate Court's discretion to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed -on the appellant by the; trial Court. But like all discretions vested in the Courts, discretion in this section has to be exercised judicially. The contention that the sentence imposed on the appellant may call for suitable interference by this Court if it were accepted that the case also fell under Exception I to section 300, Pakistan Penal Code appears to Justify the demand for exercise of discre­tion in favour of the appellant. Bail allowed in the sum of Rs. 10,000 with two sureties with personal bond in the like amount to the satisfaction of Assistant Commissioner (Saddar)/Duty Magistrate, Attock. .6. The appeal involving short questions of fact and law shall be fixed for hearing on 13th May 1980. Petition allowed.