1994 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), Ss.302/324/34, 338-F, 76 & 79

Bail, grant of

Accused was stated to have killed the deceased and seriously injured his own sister with a Chhuri on seeing both of them in pari-delicto

Such act of the accused, prima facie, was in furtherance of the pure moral and ethical Islamic atmosphere in society, as a Muslim on seeing a person committing Zina with a woman and that too in his own house

Accused was allowed bail in circumstances. Ghulam Yascen and 2 others v. The State P L D 1994 Lah. 392 ref. Ch. Waheed-ud-Din Virk for Petitioner. Malik Fiaz Ahmad for the State. Liaqat Ali petitioner is involved in case of Qatl-e-Amd under section 302/324/34, P.P.C. and seeks bail after arrest having been sent up to the Court of Sessions for trial.

2. The occurrence took place at about 7-00 a.m. on 4-7-1993 and matter was reported to the police, the same day at 8-50 a.m. by Mst. Saira complainant, the mother of Abdul Hameed deceased. According to her version when she and her deceased son were going, the latter was assaulted by the petitioner alongwith Muhammad Asif and Muhammad Zafar all armed with Chhuris. It is also there that innumerable Chhuri blows were given by the three as a result of which he died at the spot. The petitioner and his co-accused left and later on it was learnt that on reaching his house the petitioner had also given Chhuri blows to his sister Iqbal Bibi. The motive alleged is the dispute about the mending of "Wat" between the uncle of the deceased and the petitioner a few days before the occurrence in which the deceased had helped his uncle. ,

3. Learned counsel for the petitioner pointed out that during investigation after having recorded the statement of Iqbal Bibi under section 161, Cr.P.C. Muhammad Asif and Muhammad Zafar had been found innocent by the police and got discharged. Only Liaqat Ali petitioner was challaned to the Courk and his plea of having acted in "Ghairat" in a fit of grave and sudden provocation, according to him, is supported on the facts brought on the record. He frankly conceded that the plea of grave and sudden provocation as provided in Exception (1) to the earstwhile section 300 of the P.P.C. was not now available to him in view of the change in law.

4. Chapter XVI of the Code (offences affecting the human body) has been substituted by Criminal Law (Amendment) Ordinance (No.l of 1992). He refers to section 338-F to argue that while interpreting and applying the provisions of the Chapter and in respect of all matters ancillary or akin thereto the Courts are to be guided by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. He relies upon Ghulam Yaseen and 2 others v. The State P L D 1994 Lah.

392. The Chapter has been substituted in the Code recently and it seems that in the rush of events and exuberance for the introduction of Islamic law, the Legislature could not do full justice while defining "Qatl-i-Amd."

5. Learned counsel has raised a very pertinent plea that while interpreting the provisions of the Chapter, the overall moral, ethical and legal milieu of Islamic society has to be kept in view. He contended that Abdul Hameed deceased in the present case was seen by the petitioner in paridelicto with his sister Iqbal Bibi and taking a Chhuri ran after him, finished him and also seriously injured the sister. According to him the deceased was not "Massom-ud-Dam". In the general scheme of Islamic society and moral atmosphere one who indulges in Zina and that too in broad daylight deserves to be finished then and there. The learned counsel goes on to supplement his argument that in such an eventuality the murder of the deceased was rather a religious duty than an offence. Prima facie I am inclined to agree with him. This conclusion gets support from the Ahadees (Sayings of the Holy Prophet Peace be upon Him) reproduced in Ghulam Yaseen's case. Not only this but I am inclined to go a step further.

6. Chapter IV (General Exceptions) of the Code is to be read inl conjunction with substituted Chapter XVI. Section 76 provides that nothing is an offence which is done by a person in good faith believing himself to be bound by law to do it. Extending the analogy to the facts of the case in hand, one can prima facie say that the act of the petitioner in finishing Abdul Hameed deceased was rather in furtherance of the pure moral and ethical Islamic atmosphere in society when he proceeded to do away with the life of a Zani. Section 79 ibid also lays down that nothing is an. offence which is done by any person who is justified by law to do it or in good faith believes himself to be justified by law in doing it. A Muslim on seeing a person committing Zina with a woman and that too of his own house, under Islamic law, is justified to do away both.

7. Accepting the contentions, therefore, the petitioner is allowed bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./L-73/L Bail allowed