' Vide F.I.R. No, 537, Police Station East Cantt., Peshawar dated 15-11-1992 a case was registered at the instance of Subedar Stoori Gul against Khan Dad sepoy under section 302, P.P.C. On the charge of the murder of Saheb Khan sepoy by firing inside the Governor House and one Dolai Khan sepoy was stated to be the eye-witness of the occurrence while motive was given that the deceased had threatened the accused to commit sodomy with him that night that the accused killed him due to the said threat.
2. So far the Investigation Agency has collected relevant evidence in the judicial confession of the accused, police statements of Dolai Khan and Fazal Khan Lance-Naik and Subedar Stoori Gul besides recovery of two crime empties from the spot and the crime weapon G-3 rifle from the possession of the accused. The judicial confession recorded on the following day reads:-- "Stated that preceding night the accused was washing his face and hands at the water pump in the Governor House Building at 8-00 p.m. That at the time sepoy Saheb Khan the deceased of his unit was also washing his box who on seeing him asked him for committing sodomy on him at which he got up and gave good beating to him in anger and afterwards he went for his duty while Saheb Khan deceased went to his barrack. At night after his duty ended at 10-05 hours he was returning towards line that Saheb Khan reached there for his duty and when they confronted each other Saheb Khan once again repeated the same overture and invitation and also ran towards him for his disgrace that he could not bear his disgrace and fired two shots at him with his official rifle that both the shots hit him and he died on the spot."
' The other evidence is the statement of Dolai Khan, Lance-Naik recorded under section 161, Cr.P.C.
Who stated that he was bringing Saheb Khan deceased for his duty to commence at 22-00 hours at point No, 15 in the Governor House and that Saheb Khan deceased was going ahead of him by few paces that as soon Saheb Khan sepoy reached near accused Khan Dad sentry he fired two shots with his G-3 official rifle at him that as a result Saheb Khan was hit and he fell on the ground and that he himself immediately overpowered accused Khan Dad sepoy and informed Subedar Stoori GuI who disarmed him and took the G-3 rifle into his possession.
3. Fazal Khan Lance-Naik stated before the police that he was present at point No, 16 in the Governor House on his duty along one Majeed Khan sepoy that he heard a report of two fire-shots from the direction of point No, 15 and on reaching there he found sepoy Saheb Khan lying dead in his uniform and Dolai Khan, Lance-Naik having caught hold of sepoy Khan Dad accused. On his enquiry sepoy Khan Dad accused told him that he has murdered the deceased with his official G-3 rifle.
4. Learned counsel for the accused petitioner argued that the petitioner's case was covered under section 100, clause fourthly, P.P.C. As there was made an assault by the deceased on him with the intention of gratifying his unnatural lust which obliged the accused to voluntarily causing of his death or to do any other harm to the assailant. He contended that in fact accused himself was the sole witness of the incident and also truthful to make a clean breast confession that he voluntarily caused the death of the deceased by firing due to the deceased's assault on him with the intention of committing sodomy on him and that the right of private defence was thus available to him.
5. The learned Additional Advocate-General argued that the provisions of section 100, P.P.C.
Pertaining to the right of private defence were subject to the restrictions mentioned in section 99, P.P.C. Whereunder it is provided that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. In the context of the case he argued that immediately preceding the occurrence as the parties confronted each other the deceased was unarmed while the accused was armed at the time and even if the accused had once again made the overture/assault to commit sodomy on the accused there was no possibility that he could succeed in his attempt and use criminal force in furtherance of his so-called assault and as such in the circumstances the right of private defence may not be available to the accused. He also argued that on the enforcement of Qisas and Diyat Ordinance the incident is not likely to culminate into culpable homicide not amounting to murder and rather it is a straight case of Qatl-i-Amd wherefor there is prescribed punishment in Qisas and Tazir.
6. Learned counsel for the petitioner placed reliance on case-law published in Najib Raza Rehmani v. State PLD 1978 SC 200 and Ghulam Asghar v. State (1985 SCM R 1946) to substantiate his view- point that the accused-petitioner was entitled to the right of self-defence and that by his act he has not committed the offence and was entitled to bail as of right. In PLD 1978 SC 200 right of private defence was extended to the accused even in case of voluntarily causing death and conviction under section 302, P.P.C. Was set aside but the facts were that the accused and deceased both were confined in one room that the deceased showed his desire for homosexuality and on his refusal the deceased caught hold of the accused, laid him on the `Charpai' and while holding his one hand on nis hands and neck he opened the string of his troursers with the other hand that the accused showed his willingness and asked him to set the pedestal fan on and afterwards he drew out his pistol from pocket and fired three rounds at the deceased. Overtures like followed by criminal assault and confinement in a room are the factors missing in the instant case. In 1985 SCM R 1946 there was an altercation between the accused and the deceased that the latter gave him fists with his hands and the accused gave him blows with a `Lathi' lying nearby which proved fatal although the accused had no intention to kill him. A right of private defence was acknowledged and bail was granted. This authority may also not apply to the facts of the instant case.
7. To sum up herein the accused had the opportunity to report the preceding incident of deceased's immoral overture towards him to the higher authorities but he did not avail it, maybe, for his own honour due to shame, and again he had the time and opportunity to have the recourse to the protection of his superiors and other persons present in the Governor House on duty and should not have resorted to open fire at unarmed deceased with his G-3 official rifle. It is apparently a case of "Qatl-i-Amd" covered by the prohibitory clause of subsection (1) of section 497, Cr. P.C. And resultantly this Court would refuse bail to the accused-petitioner. Bail application is accordingly dismissed.