The appellant-petitioner in this case was convicted under section 304, Part II, Pakistan Penal Code for causing the death of one Muhammad Nawaz and was sentenced to seven years' rigorous imprisonment. He was also directed to pay a fine of Rs. 2,000. In default of payment of fine he was to undergo further one year's rigorous imprisonment.
2. The basic question raised in the bail application which was fixed for today was that it appeared from the contents of the judgment, particularly, paras. 7 and 16 that the petitioner appellant had caused the death of Muhammad Nawaz under grave and sudden provocation or in the alternative under circumstances which suggested that the deceased wanted to rape his wife Mst. Mumtaz.
After hearing the learned counsel on both sides I asked them whether the appeal could be disposed of on this sole point. Both of them agreed that it could be done. I, therefore, proceed to dispose of the appeal.
3. The story of the prosecution, as put before the trial Court, was that the appellant and his three co-accused had assaulted the deceased with a view to avenge the molestation of Mst. Mumtaz Bibi wife of Ashiq appellant and sister of Zahoor his co-accused. This molestation by the deceased was done in order to show his resentment against the alleged liaison between Zahoor Ahmad the co-accused and brother-in-law of the appellant and Mst. Azizan wife of Bashir Ahmad the brother of the deceased.
4. The learned trial Court disbelieved the eye-witness account produced in this case and acquitted the co-accused of the charge but convicted, the appellant. He, however, based the con--viction of the appellant on his own statement.' The gist of the statement of the appellant has been reproduced by the learned Additional Sessions Judge in para. 7 of the judgment. The relevant portion reads as follows:---- "At about 2 or 2-30 p.m. He and his wife lull for their house. She went ahead of him and he followed a little later. There was no one near about their path nor anyone present in the Basti within sight as it was frill harvest time and every body was out in the fields either cutting wheat or gleaning.
Suddenly he heard a shriek of his wife and on looking ahead saw that the deceased had backed her into his own house. He followed into the house and found that the deceased had removed the Burqa of his wife and torn her clothes and was molesting her. He lost all self-control and fired at the deceased with his revolver."
5. It appears that two pleas were raised by the learned counsel for the accused which have been dealt with to para. 16 of the judgment. It was observed'-by the learned Additional Sessions Judge that he was of the view that the appellant had killed the deceased when he saw his wife Mst.
Mumtaz being molested by Nawaz deceased at about 2 or 2-30 p.m. Dealing with the argument of the learned defence counsel that since the deceased wanted to commit rape with Mst. Mumtaz the accused had a complete right of self-defence and could not be convicted for any offence, the learned Additional Sessions Judge observed that under section 100, P. P. C. The right of private defence of body extended to the woman who had been assaulted with the intention of committing rape but the husband could not get the benefit of that under clause 3 of section 100, P. P. C. He, therefore, held that Ashiq appellant had committed the murder of the deceased under grave and sudden provocation and proceeded to convict him as described above.
6. I feel that the learned Additional Sessions Judge took entirely erroneous view of the law of defence of body and property. He perhaps had not read section 97 of the Pakistan Penal Code which may be quoted here for his advantage:---- "Every person has a right, subject to the restrictions contained in section 99, to defend.
First.-His own body, and the body of any of 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 as offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
A husband or any body for matter of that has a right to commit the death of a person who makes an assault with the intention of committing rape. The learned trial Court has not found that the intention of the deceased was not to commit rape en the woman. The trend of the Judgment factually does not controvert the charge but the Sessions Judge was of the view that the husband could not go to the extent of committing murder of the deceased who had assaulted his wife with the intention of committing rape.
7. The learned counsel for the State does not contest this proposition of law and concedes that the finding of the learned Additional Sessions Judge is legally unsustainable.
8. Haling found that the deceased had made an assault on Mst. Mumtaz the wife of the appellant with an intention to commit rape; the learned Additional Sessions Judge should have acquitted the appellant. I, therefore, allow this appeal and set aside the conviction and sentence of the appellant.
He shall be released forthwith unless he is required to be lawfully detained in some other case. The fine, if already paid, shall be refunded. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.