' This judgment shall dispose of Criminal Appeal No,1089 of 1991 and Criminal Revision No,712 of 1991 as in both the same judgment dated the 16th of September, 1991 passed by the learned Additional Sessions Judge, Sargodha has been impugned, whereby he had convicted the appellant under section 304-I, P.P.C. And sentenced him to undergo 7 years' R.I. And fine of Rs,20,000 (Rupees twenty thousand' only) in default of payment of fine to further undergo R.I. For three years. Benefit of section 382-B, Cr.P.C. Was also given to the appellant. He, however, acquitted the remaining accused, namely, Muhammad Aslam, Muhammad Hayat, Sher Muhammad and Ata Muhammad (respondents Nos.2 to 5 in Criminal Revision), from the charges.
2. Appellant Ali Muhammad has filed this appeal against his conviction and sentence and the complainant has filed criminal revision for enhancement of sentence awarded to All Muhammad and for dealing with the respondents Nos.2 to 5 in accordance with law.
3. The prosecution story as per F.I.R. Is that on the fateful night All Muhammad complainant alongwith his deceased brother Ramzan went out of their house at about 1-30 a.m. To irrigate their lands as turn of water was to commence at 4-00 a.m. Sher Muhammad P.W. (given up) and Muhammad Sharif (P.W.7) also joined them on the way as they were going to their own houses.
They all had hardly reached the land of Iqbal Maikan that All Muhammad appellant alongwith his acquitted co-accused, namely, Aslam; Hayat; Sher Muhammad and Ata Muhammad all armed with Dandas, emerged. The appellant caught hold of deceased and put cloth around his neck whereas others lifted him from his legs and arms and took him to the Dera of the appellant where he was strangulated to death and was also belaboured with the Dandas. The motive of the offence was that the appellant suspected the deceased for his immoral liaison with his wife.
4. The appellant and his co-accused faced the charges under section 364/302/148/149, P.P.C. For abduction and murder of Ramzan deceased. All the accused persons denied the charges levelled up against them except Ali Muhammad who took up the plea to have committed murder under grave and sudden provocation when he found the deceased in compromising position with his wife in the dead of night. The learned trial Court accepted the plea of the accused and acquitted them except the appellant who was convicted and sentenced under section 304-I, P.P.C. The learned trial Court, however, had not cited correct provision of law under which the appellant was convicted and sentenced. And so probably because he was oblivious of Criminal Law (Second Amendment) Ordinance, 1990 (Qisas and Diyat Ordinance), which had come into force on the 12th day of Rabi-ul-Awwal which fell on the 5th of September, 1990. The occurrence had taken place on the night intervening the 23rd/24th of October, 1990. The conviction can be construed to have been recorded under section 302(c), P.P.C. Whereunder sentence up to 25 years could be awarded. The misapplication of law does not carry miscarriage of justice or any material bearing on the case.
5. Reverting to the evidence of the case I may refer to medical evidence before taking up the ocular account and other items of evidence.
6. Dr. Malik Muhammad Khan (P.W.1) had conducted autopsy on dead body of Ramzan on the 24th of October, 1990 at 11-45 a.m. And found the following injuries:--
(1) A ligature mark on upper most part of neck on front and going two sides, 1 c,m. Broad and 16 c.m. In length.
(2) A lacerated wound top scalp back part 5 x 2 c.m. Into bone deep.
(3) A lacerated wound back and middle occipital region 2 x 1 c.m. x bone deep.
(4) Two contusions back and middle and lower part chest in an area of 10 x 8 c.m. With swelling around.
7. Injury No,1 was opined sufficient to have caused death in ordinary course of nature as cause of death was asphyzia by strangulation. The other injuries were caused by blunt weapon. The reports are Exh.P.A. And PA./1.
8. In view of defence plea, recovery of Sota, not blood-stained, from the appellant and version of motive are of no substance. The case turns on the question as to if the murder had taken place in the manner set out by the appellant or was it a preconcerted murder as detailed by eye-witnesses, namely, Muhammad Sharif (P.W.7) and Ali Muhammad (P.W.8). The latter is a real brother of the deceased whereas Sharif (P.W.7) belongs to his Bradari. They deposed that the appellant and 4 acquitted co-accused had caught hold of the deceased while he alongwith the witnesses at about 1-30 a.m. Was going to the lands to irrigate, dragged and abducted him away to the Dera of the appellant where he was strangulated and beaten to death by Danda blows. This version was rightly disbelieved by the learned trial Court for various reasons. Admittedly time of turn of water was 4 a.m. But the deceased and his brother All Muhammad had left the house for their fields at 1- 30 a.m. And that too in company of Sharif (P.W.7) and Sher Muhammad P.W. (given up) who had no reason to be there at that time. P.W.7 had admitted that he resided at a distance of 5 miles from the place of occurrence. Explaining his presence with the complainant (P.W.8) the witness stated that he was there for consultation about the votes. 1-30 a.m. Is hardly a time for making consultation about the votes especially when the election was not taking place next day. The complainant and deceased were going to irrigate their land from the turn of water but admittedly they were not carrying Kassis. The conduct exhibited by the witnesses is also not in consonance with the natural course of human affairs. They did not try to rescue the deceased from the clutches of the appellant and his co-accused although they were only armed with Sotas. Nay, they had not even raised alarm although the deceased had been dragged from the fields right up to the house of All Muhammad complainant. According to P.W.7 the accused had dragged through fields of sugarcane for about 3/4 acres. This also stands in contrast to medical evidence as the Doctor had not found any such marks on the back of the deceased. Dragging through sugarcane field must have caused serious bruises. And if there was no such bruise or mark that only goes to belie the version of dragging. Not only Sharif (P.W.) but even the presence of complainant at the place of occurrence is also highly doubtful. The complainant resided in the Abadi of village Chakrala at a distance of 8/9 acres from the place of occurrence while his lands are at a distance of 5/6 squares further away. According to the complainant all the five assailants had inflicted injuries to the deceased and the assailants continued beatings for 15/20 minutes. 4 injuries by 5 assailants hardly fit in with what the witnesses stated. The statements of the witnesses also bristle with serious contradictions, improvements and embellishments over their previous statements recorded under section 161, Cr.P.C. The complainant, admitted that he knew about illicit relations of Mst. Maqsoodan wife of All Muhammad appellant with the deceased. The Investigating Officer Shahnawaz Khan (P.W.10) has also admitted that right from very start of the investigation the appellant had taken up plea that he had put the Chadar of the deceased around his neck and inflicted Danda blows on him when he found him disgracing his wife in his Dera at the night time. The other Investigating Officer (P.W.11) had also admitted the said facts besides pointing to an important circumstance which is that the police on its first visit had found the dead body in the house of the appellant and at that time it was covered with Chadar of the deceased. All these factors highlight the truthfulness of the appellant's version which is that after hearing commotion, he got up and surprised the deceased who was lying with his wife in compromising position in the other room. He picked up the Chadar of the deceased lying nearby and he put it around his neck to drag him out of the room and also inflicted Danda blows on him. The deceased died there and then. Thus, the murder was committed by the appellant under grave and sudden provocation. This version is quite in accordance with the medical evidence which speaks of lagature mark on the neck of deceased and also three injuries by blunt weapon. Conversely the prosecution story of dragging of the deceased by the appellant for 3/4 acres through sugarcane field and other rough spots and infliction of Sota blows by 5 accused, stands contradicted by medical evidence, besides being unappealable to common sense. The learned Additional Sessions Judge in the circumstances was perfectly right in upholding the defence plea of the appellant. The statement of the accused in the circumstances has to be accepted in totality and without scrutiny as also recently ruled by the Supreme Court in the case of The State v. Muhammad Hanif and 5 others 1992 SCMR 2047.
9. Now next question that falls for determination is as to what offence the appellant has committed. Whether it was "Qatal Amd" liable to Qisas; Qatal Amd not liable to Qisas or Qatal Amad liable to Tazir. Qatal Amd liable to Qisas takes place only when the person murdered is not liable to be murdered and is Masoom-ud-Damm. Apparently the offence of the appellant attracts section 302(c), P.P.C. Whereunder imprisonment could be up to twenty-five years, because "Qisas is not applicable".
10. Learned counsel for the appellant has postulated the theory that criminal administration of justice in Islam regards the Qatal Amad not liable to Qisas or Tazir when the muderer whilst deprived of the power of self-control by grave and sudden provocation causes death of the person who caused the provocation---a situation just comparable to exception 1 of old section 300, P.P.C.
Learned counsel, however, could not go beyond placing reliance upon the Supreme Court case The State v. Muhammad Hanif which for the first time explored the proposition under Islamic Law in the following words:-- "(11) 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 illustration appearing in Mishkat- al-Masabin 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) 2.
11. The Supreme Court, therefore, upheld the sentence under section 302(c), P.P.C. For causing murder under grave and sudden provocation. The Supreme Court decision, however, has excited certain questions which call for at least a bid to resolve them. For instance if peep of a trespasser into the privacy justifies even throwing a pebble at him which may put out his eyes, as in the cited Hadith, then why murder of a trespasser who also commits Zina with the wife of owner of a house would not be immune from even Tazir. Sanctity of privacy has been enjoyed by the Holy Qur'an to the extent that entry into a house without permission is forbidden as laid down in Verses 27 and 28 of Surah Al-Noor:-- "(27)0 ye who believe! Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful.
(28) And if ye find no one therein, still enter not until permission hath been given. And if it be said unto you: Go away again, then go away, for it is purer for you. Allah knoweth that ye do."
' And to enter a house without permission at night and commit Zina with wife/daughter/sister of owner of a house was obviously a vice which could be stopped with force. There is Hadith supporting this view:- "Help your brother may be aggressor or aggressed", said the Holy Prophet (p.b.u.h.). On query by companions of Holy Prophet (p.b.u.h.) as to how to help the aggressor, the Holy Prophet (p.b.u.h.) was pleased to observe: "By restraining him from aggression (URDU TEXT) (Bukhari: Kitab-ul- Mazaalim V.I., P. 331)". This is reinforced by another Hadith "Stop the vice by your hands (force) and if not possible, then. Orally challenge him to desist and if you cannot do this much, at least denounce in your heart. But this is sign of weak faith (Eeman)."
' What is commendable, however, is to stop the evil by force. And the defence of the person/property and honour is so virtuous an act that: "He who lays down his life while defending his person or property is a Shaheed", says Hadith (Bukhari: Kitab-ul-Muzalim and Muslim; Kitabl-ul-Eeman). Person would mean injury to body.
12. I do not visualize Islam would turn table on the person who instead of losing life takes life of another while defending his person, property etc. In fact Islam does extend the right to the aggressed to take life of the aggressor in such a situation. I have it from the famous book "Umar Bin Khatab" by Tantaavi translated by Abdul Samad Sarem at page 242, that during days of Caliph Umar, a person from Yazmal tribe when attempted to disgrace the daughter of his host in her house, the girl hurled a stone at him in her defence which hit his abdomn and punctured his liver and he died. In appeal, Hazrat Umar ruled that the act was not liable to Diyat and cleared the girl of any offence.
13. I have dug out more instances on the subject from Kitab-ul-Ikhtiar translated by Maulana Salamat Ali Khan, paragraph 619 recites:-- "If any person has seen committing Zina with wife of a person, then the latter can kill him if he does not desist from the act after a call or shout."
' Next paragraph lays down:-- "If any person sees a stranger committing Zina, with his wife, then it is desired (URDU TEXT) for him to kill him."
' Then paragraph 623 quotes 16 exceptions where Qatal Amd is not liable to Qisas and the sixteenth mentions:-- "If any person sees the other committing sodomy with his child or Zina with his woman, then his murder is not liable to Qisas."
14. The right to defend the honour to the extent of even killing the aggressor, if need be there, is not only available to the aggressed lady but also to her husband, Mahram or the person in whose lawful custody she is residing on the basis of Qur'anic ' Injunction in Verse 34 of Surah Al-Nisa starting with:-- "Men are incharge of women."
15. There is further vers of Holy Qur'an touching the subject-matter of Homicide. It reads:-- "And slay not the life which Allah hath forbidden save with right." (Verse 33: Bani Israel).
' It clearly permits taking life of another in assertion of Haq (right) in exceptional circumstances like protecting person, honour etc. Which in this case is appellant's exclusive entitlement to avail person of his wife and if this entitlement ( Y") is traversed he would be within his limits to go to the extent of Qatal-bil-Haq.
16. Even our law as contained in section 97, P.P.C. Recognizes right of private defence of the body and property. The right under section 100, P.P.C. Extends to voluntary causing of death or of any other harm to the assailant if the assault is with the intention of committing rape. Although the consequences arising out of exercise of the right of defence to the extent of causing death have not been incorporated in sections 300 and 302, P.P.C. As amended by Criminal Law (Second Amendment) Ordinance, 1990, but still the Courts have to be guided by the Injunctions of Islam as laid down in Holy Qur'an and Sunnah. Section 338-F, P.P.C. Expressly permits the Court to assess the culpability of the guilt of the accused not only under the statutory provisions of law but also under the Injunctions of Qur'an and Sunnah.
17. In the instant case, the deceased entered into the house of the accused without his permission and at the dead of night and while the deceased was violating the honour of his wife, he surprised him, picked up his Chadar which was lying nearby and put it around his neck to expel him out of room and the deceased died of asphyzia. The appellant could do it. He had to stop him by force. He could also inflict Danda blows as he did. He, therefore, had committed no offence. He was left with no other course. He could not watch the sex act in peace without violating Qur'anic order to him.
"Help not one another unto sin and transgression." (Verse 2, Surah AlMaida).
' Then another Verse covering the situation aptly is: "But he who is driven by necessity, neither craving nor transgressing it, is no sin for him." (Verse 173, Surah Al-Baqarah).
' This Means in weak moments of provocation anything otherwise forbidden may be done with impunity.
18. Had the deceased run away from the place then the situation would have been different and the appellant could not kill the deceased after chase because the urgency to desist him from commission of the offence of Zina by force would have evaporated.
19. For reasons aforementioned, I am of the view that the appellant as custodian of honour of his wife had the right to kill the deceased while he was engaged in sex act with his wife and he had not earned liability of Qisas or Tazir or even Diyat, and is hereby acquitted. The appeal accordingly stands accepted and revision rejected.