DOST MUHAMMAD KHAN, J.---This appeal, filed from Jail by Mst. Gul Naz, questions the legality, propriety and vires of the judgment dated 6-9-2010 given by Mr. Muhammad Sabir, Additional Sessions Judge-II Mardan, convicting her under section 303(a), P.P.C., awarded her sentence of fourteen (14) years R.I for the murder of Shafiq Ullah, deceased. Benefit of section 382-B, Cr.P.C. was granted.
2. Arguments heard and record perused.
3. The appellant namely, Mst. Gul Naz, herself reported the crime on 25-9-2009 at 03-45 hours, wherein, she gave the following story:-- "(1) that her husband was away to Lahore to win bread for the family. In his absence, the deceased namely, Shafiq Ullah, started making amorous advances towards her and consistently harassed her sexually through mobile phone. She complained to his parents against his obnoxious conduct but no effort was made to stop him from the detestable adventure.
(ii) It was on the fateful night that the deceased trespassed into her house when the appellant along with her grown up daughter Mst. Sumera aged 15/16 years and his sons namely, Ibrahim aged 8/9 years and Ismail aged 4/5 years were present there. The deceased directed her to leave the room, as he wanted to commit "Zina-bil-Jabar" with Mst. Sumera, the appellant's daughter. All craving supplications of the appellant fell on deaf ears, as the deceased had become blind, driven by wanton sexual lust, to outrage the modesty of the young daughter of the appellant. To thwart the detestable action of the deceased, the appellant put Holy Quraan in his fold but that too did not work to prevent him of his nefarious and curseful designs, who then caught hold of Mst. Sumera after removing his shirt and putting his pistol on a bed. Confronted with immense painful and miserable affair, the appellant, to pre-empt the action of the deceased, picked up the pistol and shot him dead. The pistol along with two empties with five (05) live rounds were produced to the police by the appellant at the time of report."
4. On the strength of this report, case F.I.R. No, 687 was registered by. Police Station Shehbaz Garh District Mardan under sections 302/449/34, P.P.C. read with section 13 Arms Ordinance.
5. After more than a week time, Mst. Sawan Bibi, mother of the deceased, recorded her statement, charging the appellant along with Rashid alias Fauji and Israr alias Bacha, both real brothers, for the murder of the deceased. This was followed by the statement of Hazrat Ullah, brother of the deceased, recorded, under section 164, Cr.P.C. After completion of investigation, charge-sheet was filed in the trial Court, where, the prosecution examined twelve (12) witnesses in all.
6. The appellant was examined under section 342, Cr.P.C, where, she has acknowledged the liability in the same words, the F.I.R. was shaped and in line with confessional statement, she had made before the Judicial Magistrate on 25-9-2009.
7. The Investigating Officer drawn the site plan Exh.PB and from point-3 thereof, blood of the deceased was secured, the same was inside the bedroom of the appellant while at point-2 Mst.
Sumera, daughter of the appellant, is shown. This factual position, undeniable in nature has never been challenged by the prosecution at any level and stage. At a later stage, another site plan was prepared at the instance of mother of the deceased, however, no incriminating article of any legal worth was found therefrom.
8. The appellant appeared in defence, as her own witness, as D.W.1, where, she narrated the same facts and did not make a slight attempt, giving twist to the story which she had put forth in the F.I.R. and in her confession.
9. In her cross-examination, she stated that one Mst. Mehtab Begum was known to her, who was mother of renowned film actresses namely, Sangeeta and Kaweeta. She explained, that, her husband was personal guard in the house of the two actresses at Model Town Lahore and because of that fact she knew the two ladies. She was subjected to unreasonably gruesome cross- examination, the trial Judge did not take a little care that accused person cannot be subjected to such type of harassm ent at the hands of unscrupulous prosecution counsel.
10.Besides herself, she also produced her daughter Mst. Sumera aged 17/18 years, who endorsed her mother story word by word. She too, was subjected to be labouring and taxing cross- examination, the learned trial. Judge again remained oblivious of its duty to regulate and control the same. In any case, the prosecutor failed to get any benefit of the tactics, employed by him.
11.The fire arm expert's report Exh.P.W.9/4 is in positive, corroborating the confession of the appellant. Similarly, the blood secured from the bedroom of the appellant and the one on the trouser and white under-waste was found to be human blood and of the same group, which has further confirmed the truthfulness of the confession made by the appellant.
12.Admittedly, the deceased was not related to the appellant or her daughter Mst. Sumera within the prohibited degree. His intrusions/criminal, trespass into her house at odd hours of night by itself is a strong pointer towards the facts divulged by the appellant in her confession and her daughter's version, given in defence.
13.Despite of all the above established facts, the learned' trial Judge, ignoring the centuries old principle of law and also the statutory law on the subject, decided in his wisdom to punish the appellant, as above.
14.On the introduction of famously known Qisas and Diyat laws, incorporated in Chapter XVI of the P.P.C. 1860, some radical changes were brought about with regard to the punishment of certain crimes with reduced penalty, keeping in view the concept of Islamic law of "Tal aziraat". However, the legislature did not amend nor has repealed the provisions of Chapter IV, relating to general exceptions, wherein, right of self defence of person and property has been kept intact and is still well operative in the field. The provisions of section 97 of the Pakistan Penal Code, still intact and effective in the field reads as follows:-- "S-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.
' Again, to define the scope of right of private defence, the legislature enacted section 100 of the Pakistan Penal Code which reads as follows:-- "S-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 hereinafter enumerated, namely:- ' First.---Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly.---Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; ' Thirdly.---An assault with the intention of committing rape; ' Fourthly.---An assault with the intention of gratifying unnatural lust; ' Fifthly.---An assault with the intention of kidnapping or abducting; ' Sixthly.---An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release.
15.In the instant case, the deceased, a complete stranger, driven by strong desire and lust to sexually assault the grown-up daughter of the appellant, Mst. Sumera, after arming himself with deadly weapon, made criminal trespass into the house at past midnight, and further, forced his entry into the bedroom of the appellant. This obnoxious act of the alien intruder alone was sufficient to provide right of self defence to the poor lady and her daughter, causing his death more so, when he did not make retreat after he was asked to do so. The matter went further as the deceased undressed himself half way, caught hold of the young girl when under the law and Islamic injunctions, he was strictly prohibited from, even to touch any part of the body of young girl, not related to him within the prohibited degree. At the same time, he proclaimed and asserted to commit rape on the girl and that too, in the presence of the mother, the only guardian of her, present there.
16.The divine force of nature has infused and gifted every mother with a strange quality of love and affection, for her child, the same is placed on a very high pedestal and incomparable with any other relationship in this mundane world. Every mother, who has brought up her child in her lapse, feeding him/her with breast milk, develops indefeasible love and affection for it, always irresistible in nature. Mother is next to God is a universal principle. Her purest and holy bond of relation commences at birth, subsists during infancy, childhood and even upto adulthood. The rearing of child is every mother's solemn and committed duty. This heavenly bond of relationship between mother and child is even the natural instinct of animals. Even fox turns into ferocious lioness in distress to repel attack of killer jaws and wild claws on its kiddy.
17.In this case, it was more than imperative for the trial Judge to have realized that occasion and the emotional sentiments of the appellant. Being a mother, in a situation when her grown-up daughter was being ravished within her view, in all probabilities, she must have been driven by an impulse of emotional sentiments of anger and revenge, irreversible in nature, her blood must have gone to a boiling point and her passions must have gone out of control and her mental faculties must have been so paralyzed, in abling it to regulate, conduct and control her actions and reactions, notwithstanding the right of defence, given by the statutory law which she could not imagine by then, being an illiterate lady. She was required and supposed to act in the manner, as she did, to save her daughter from being wolfishly ravished, thus, firing at the deceased, in the given circumstances, was wholly justified in law. The making of two (02) fire shots do not make any difference because in case of a semi-automatic weapon and in a situation of panic and distress, pressing of the triggers once or twice would be of no legal consequence, more so, when the deceased has sustained only one entry wound with an exit.
18.The learned trial Judge while drawing the impugned judgment did not stop nor took a pause to think with a judicial mind that the appellant with her young daughter and two (02) minor sons were entrapped in a situation, where, they could not find any other way to wriggle out or thwart the abominable attempt the other way but to incapacitate the man, marching towards the girl to ravish her, thus, the learned Judge has failed to do justice in the matter. He has unnecessarily and without just cause laboured in drawing a judgment in favour of the prosecution, ignoring all the above facts. The appellant stood firm to her stance, taken in the F.I.R., in her confession and at the trial and despite of availability of legal advice, she did not retrace rather, told the whole truth to assist the Court for reaching at a just conclusion, however, she was given altogether undesirable treatment, punishing her for no wrongful act.
19.This Court, in the case of "Ziarat Khan v. Khadim Hussain" (1991 MLD 1949) rightly held, that it is obligatory for a Muslim to avail the right of self defence in the case of intended "Qatl-e-amd" by causing the death of the aggressor. The right of defence becomes available to the accused even if the intended criminal act on the body of a person or property has not yet consummated but has been launched or initiated. This principle of law is well settled since long.
20.In the case of "Ashiq v. The State" (1973 PCr.LJ Lahore 387) the right of defence of wife by the husband was extended to him when the deceased was assaulting the wife of the accused with intention to commit rape upon her.
21. It is also rock-bed principle of law and justice that in the heat of moment/passions, the accused alone is the judge of his own actions, unless it is established beyond any shadow of doubt that he has exceeded his right of self defence. The Court of law is not supposed to modulate his actions step by step or to weigh the same in golden scales, more particularly, in the case of defenceless lady, like the appellant.
22. Even if the Islamic concept of penal laws is pressed into service, the principles applicable are more wider in scope than those, laid down under the English law. The Hon'ble apex Court in the case of "The State v. Muhammad Hang and 5 others" (1992 SCM R 2047), (the relevant para eleven
(11) at page 2055) while explaining the private defence under the Islamic law, enunciated the following principle of law:-- "The amplitude of right of self-defence under Injunctions of Islam is far wider than is available under the Pakistan Penal Code. This is borne out by the following illustrations appearing in Mishkat-al-Masabih English Translation by James Robson (Volume II) in Book XV-Retaliation, Chapter III;- (i).Abu Huraira told that he heard God's messenger say, "If any one were to look into your house without receiving your permission and you were to throw a pebble at him and put out his eye, you would be guilty of no offence". (Bukhari and Muslim).
(ii).Sahl B. .Sa'd said that a man looked through a hole in God's messenger's door when God's messenger had a spike with which he was scratching his head, so he said, "If I knew that you were seeing me, I would poke it in your eyes, for asking permission has been appointed only on account of what people may see". (Bukhari and Muslim).
(iii).Abu Dharr reported God's messenger as saying, "If anyone removes a curtain and looks into a house before receiving permission and sees anything in those within which should not be seen, he has committed an offence which it is not lawful for him to commit. If a man confronted him when he looked in and put out his eye, I would not blame him; but if a man passes a door which has no curtain and is not shut and looks in, he has committed no sin, for the sin pertains only to the people inside." (Tirmidhi transmitted it, saying this is a gharib tradition".
23. Judged and considered from all angles, in my humble view, the learned trial Judge has caused patent injustice to the appellant and committed grave error of law by convicting and sentencing her, in view of the above factual and legal position thus, it has failed in its mandatory judicial obligation to do justice rather, her conviction has been based on hollow assumption and whims.
This fact adversely reflects upon the legal knowledge of the learned Judge about the concept of right of private defence both under the English and Islamic law. The impugned judgment being in disregard of law and principle of justice, thus, is not maintainable on any premises whatsoever, hence, the same is set at naught.
' Accordingly, this appeal is allowed. Conviction and sentence of the appellant, Mst. Gul Naz, recorded by the learned trial Judge vide impugned judgment dated 6-9-2010 under section 303(a), P.P.C. are set aside and she is acquitted of all the charges levelled against her. She be set free forthwith, if not required in any other case.
' These are the detailed reasons for short order of the even date.