1996 SCMR 69 (PLP)

Date of hearing: 11th October, 1995. SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the order of the learned Judge in Chamber, whereby bail was granted to Amanat Ali respondent No. 1.

2. One Mst. Zubaida wife of Muhammad Aslam lodged an F.I.R. on 19‑8‑1994 alleging that she had four sons and two daughters. At the time of occurrence her husband had gone to Sahiwal to see his sister. During the night of 18/19‑8‑1994 while she, her sons Pervez Aslam, Ghulam Murtaza and the brother of her husband Ghulam Mustafa were sleeping on the roof, at about 4‑30 a.m., she noticed that respondent No. 1 Amanat armed with 7 MM rifle and Mirza Khalid armed with .222 bore rifle came at the roof top. Amanat fired on the chest of Pervez Aslam. When other P.Ws. woke up Khalid fired in the air and both of them crossed over to the roof of Khalid. The complainant, Ghulam Mustafa and Ghulam Murtaza followed Amanat and saw from the roof that on entering the courtyard he fired at Nusrat Bibi, his sister, who was standing there. They returned back and found Pervez Aslam dead. The motive was alleged that for the abduction of Nusrat Bibi a case had been registered against Pervez Aslam under Hudood Ordinance in which he had been challaned and was on bail. The defence plea during hearing of the bail application was that the prosecution story completely is a fabricated one as respondent No. 1 had acted under grave and sudden provocation. It was also alleged that the prosecution has changed the venue of offence and further that the semen was found. on the swab taken from the vagina of Nusrat Bibi deceased. Respondent No. 1 thus took the plea of grave and sudden provocation in the name of the honour of the family. The learned Judge in Chamber while taking into consideration these facts and the judgments cited namely, Ghulam Yasin and others v. The State (PLD 1994 Lahore 392) and Muhammad Siddique v. State (PLD 1994 Lahore 129) formed the view that respondent's case was open to further inquiry and that there were reasonable grounds to believe that he had not committed the offence punishable with Qisas.

3. The learned counsel for the petitioner contended that bail has been granted on completely illegal grounds and that in a case of double murder by raising plea of grave and sudden provocation which is not justified by the circumstances and evidence bail cannot be granted. While granting bail, the learned Judge seems to have been impressed by the judgment reported in Muhammad Siddique (supra) where it was observed as follows:‑‑ "It is a principle too well established by now that the defence plea, if any, can be considered for the purpose of grant or otherwise of bail. The state of law as it exists in our country does make a definite allowance for the people acting under grave and sudden provocation." After quoting various Ahadeeth, Muhammad Siddique (supra) the learned Judge observed as follows:‑‑ "Siddique petitioner claims to have acted under Ghairat. His plea, as has been noticed above, is not implausible. In the circumstances I do not feel justified in grudging (granting) the concession of bail to Siddique petitioner who has been in custody for about a year."

5. In Ghulam Yasin it was observed as follows:‑‑ "From the above‑quoted Ahadeeth, it is obvious that 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 committed on account of Ghairat do deserve concession which must be given to them. The least that can be done in the present state 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."

6. The aforestated observations go a long way to affect the administration of criminal justice. It also involves interpretation of sections 300 A and 302, P.P.C. which requires consideration and authentic judgment by this Court. Leave is granted. AA./Z‑207/SC Leave granted.