1991 PLP 1949 (MLD)

Jehanzeb Rahim for Respondent. Khalid Khan, Asstt. A.G. for the State. Date of hearing: 13th April, 1991. Vide F.I.R. No.527 Police Station Kabli, Peshawar dated 2-11-1990 Abdur Rashid brother of Khushdil deceased reported to Muhammad Ijaz Khan, A.S.I. on patrol duty on the spot that he was present in his house when he heard the, report of fire-shots at which he came out of his house and went towards the Park Hotel that he saw his brother the deceased firing and Khadim Hussain accused-respondent, chowkidar of Park Hotel altercating with him that meanwhile Khadim Hussain accused had also opened fire with a Double Barrel Shotgun, as a result Khushdil deceased was hit and died on the spot. He further stated that as a result of the fire-shots of the deceased 2/3 passers by were also injured who were taken to hospital for treatment. He reported his ignorance about the motive.

2. Vide F.I.R. No.528 Khadim Hussain accused had charged Khushdil deceased for making noise in intoxicant condition and carrying a pistol in his hand that he alongwith others had come out of the hotel and the deceased started firing with his pistol at them, as a result of his fire-shots Haji Said Muhammad and Muhammad Ali Afghan the servants of the hotel and another person were hit and injured and accordingly in defence of his person and the other persons he had opened fire at the deceased with his shotgun, as a result he was hit and fell on the ground. He charged the deceased for murderous assault on him and the injured. The two F.I.Rs. were read by the learned Additional Sessions Judge, Peshawar as to prima facie hold the deceased an aggressor and the accused an aggressed and accordingly released the latter on bail.

2. The deceased's father has filed an application for the cancellation of respondent's bail on grounds of direct charge, accused's admission of effective firing at the deceased but claiming self-defence, not allegedly supported by other evidence on record and that in either case the act of the accused-respondent was to fall under section 303, P.P.C. punishable with imprisonment for life. However, at the Bar the learned counsel for the petitioner confined his arguments to the prohibition of bail in the case with reference to section 303, P.P.C. where under Qatl' committed under Ikrah-i-tam or Ikrah-i-naqis was considered an offence, respectively punishable with imprisonment up to 25 years and not less than 10 years and with punishment prescribed for the kind of Qatal committed by him. He contended that the accused-respondent's case was covered by the prohibitory clause of subsection (1) of section 497, Cr.P.C. and he was not, therefore, to be released on bail in the facts and circumstances of the case. In fact, the learned counsel for the petitioner has referred to and relied on a wrong provision of law. It is not a case of coercion that the accused had committed the act without a consent and choice under a threat and duress but the accused has reportedly committed the Qatl-i-Amad of the deceased, the aggressor in his own defence as well in the defence of others. Under Islam all defensive acts are lawful and the defender does not incur a criminal liability for such acts. True if the act of the defender exceeds the lawful limits it would be a crime and he would be accountable for his act. The Sharia, however, warrants the defence of one's own life, property or honour against the aggressor and also authorises the protection of life and honour of others against the onslaught of the aggressor.

3. Under section 338-F, P.P.C. in the interpretation and application of the provisions of Qisas and Diyat law the Court shall be guided by the Injunctions of Islam as laid down in the Holy Quran and Sunnah. Section 97, P.P.C. vests a right of private defence in. every person subject, no doubt, to the restrictions contained in section 99, P.P.C. to defend his own body, and the body of any other person, against any offence affecting the human body and so to defend the property, whether movable or immovable, of himself or of any other person, against any act amounting to an offence covered by the definition of theft, robbery, mischief or criminal trespass, or an attempt to commit such offences. In Islam too all the jurists are agreed that the defence against the aggressor is lawful to save not only one's own life, property and honour but also those of other persons from being wronged. In support reference is made to 2:194 of the Holy Quran "And one who attacked you, attack him in like manner as he attacked you". There are also the traditions of the Holy Prophet (P.B.U.H) to the same effect. Hazrat Abdullah Bin Umar quotes the Holy Prophet (P.B.U.H) as saying "A person whose property is being grabbed wrongfully fights to save it and if slain dies a martyr". There is another tradition of the Holy Prophet (P.B.U.H). "Help your brother whether he is a wrongdoer or is done wrong to". Again says the Holy Prophet (P.B.U.H). "The believers co-operate with each other to combat those causing corruption." In fact man-made laws have very late conceded the defence the position of a right and still not duty, while the Sharia in most of the cases treats the defence as a duty to be discharged and in all cases as a right.

4. In short this Court is to be guided by the Injunctions of Islam as laid down in the Holy Quran and Sunnah in the interpretation of `Qisas' and `Diyat' law. In Sharia the right of defence extends against one's person, property and honour and also against the person, property and honour of others and in most cases it has been made obligatory on Muslims to discharge it as a duty. Thus, after finding the accused-respondent's case prima facie covered by the exercise of right of defence against his own person and other persons at the hands of the deceased involved in indiscriminate firing there shall be tentatively extended the benefit of defence to the respondent and accordingly bail granted to him by the Sessions Judge is not cancelled. Bail cancellation application is hereby rejected. MAX/1219/P Application rejected.