1997 PLP 3045 (MLD)

9. The appellant when examined under section 342, Cr.P.C., denied the prosecution allegations and professed innocence. In answer to the question why this case against him, he submitted as under:‑ "As a matter of fact on 29‑6‑1992 at Isha vela I was coming back from my field and when I reached near the field of sugarcane owned by Maseetay Khan I heard whispring. I went inside the field and saw my unmarried daughter Naseem Bibi and Suleman Khan in a compromising position. I was armed with a hatchet at that time which I keep with me usually. I lost my control and senses. Under grave and sudden provocation, I killed both of them there and then and went to the Police Station where I narrated the whole incident and also produced the hatchet. "

10. The learned trial Judge holding that the appellant committed the murder of two persons on account of "Ghairat" convicted and sentenced the appellant, as indicated above.

11. Learned counsel for the appellant contended that once the learned trial Court held that the murder was committed due to "Ghairat", he should have acquitted the appellant instead of awarding him the sentence specially when according to report of the Chemical Examiner, the swabs taken from the body of Naseem Bibi (deceased) were stained with semen. The accused appellant is none else than the real father of Naseem Bibi, the deceased.

12. Learned counsel for the State did not seriously support the judgment of the learned trial Court rather conceded that he would have no objection if the sentence of the appellant is reduced to one already undergone.

13. I have heard the learned counsel for the parties at length and have gone through the record with their able assistance. The learned trial Court having come to the conclusion after appreciation of the evidence on record that the "Qatl" of the deceased was committed on account of "Ghairat", has not adverted to the provisions of sections 96, 97 and 100 of the Pakistan Penal Code, 1860 (XLV of 1860) which are reproduced as under:‑ "

96. Things done in private defence.‑‑Nothing in an offence which is done in the exercise of the right of private defence."

97. Right of private defence of the body and of property.‑‑Every person has a. right, subject to the restrictions contained in section 90, to defend: First. His own body, and the body of any other person, against any offence affecting the human body; Secondly. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition, of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

100. When the right of private defence of the body extends to causing death.‑‑The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions herein after enumerated, namely: Firstly Secondly Thirdly. An assault with the intention of committing rape;' Fourthly Fifthly The statements of Bashir Ahmad P.W.2 and Muhammad Shaft P.W.3 coupled. with the report of the Chemical Examiner Exh.PC which says that the vaginal swabs of Mst. Naseem Bibi were stained with semen leave no room for doubt that at the relevant time Suleman Khan deceased was committing Zina with Mst. Naseem Bibi deceased who was the real daughter of the accused‑appellant. In such a situation the appellant being father of Mst. Naseem Bibi one of the deceased was overpowered by the wave of his family honour and "Ghairat" and killed both the deceased at the spot. In my opinion he has committed no offence liable to punishment.

14. Resultantly, I do not uphold the judgment of the learned Additional Sessions Judge, Sheikhupura and acquit the accused‑appellant. He shall be released forthwith if not required in any other case. Order accordingly. N.H.Q./S‑122/L Appeal accepted.