KHIZAR HAYAT, J. -This bail petition has been filed on behalf of Muhammad Safdar who stands arrested in case FIR No. 440, dated 20-10-1992, under sections 302/324 PPC registered at P.S. Hujra Shah Muqeem, district Okara, at the instance of Syed Walayat Shah for the murder of his nephew Abbas Haider (deceased) and murderous assault on his own sister Mst. Kaniz Fatima, by firing at them.
2. According to the FIR the accused party became inimical towards complainant for about 17/18 years earlier he had purchased land of one Munshi in preference to the accused party. As a sequal to this enmity, the petitioner duly armed with gun, in the company of Mushtaq and Latif co- accused (found to be innocent) went to the place of deceased and by firing at the deceased had killed him.
3. During the investigation it was found that deceased had a liaison with Mst. Kaniz Fatima, sister of petitioner. Petitioner when returned home from his brick kiln found his sister missing from her Charpai and picked up the gun he went to the place of deceased and finding them lying on same cot fired one shot at the deceased and the other at his own sister Mst. Kaniz Fatima. Abbas Haider died but Mst. Kaniz Fatima though was seriously injured, recovered, but later on she had died natural death.
4. Petitioner's bail plea was declined by the lower Court, hence this petition.
5. Learned counsel appearing on behalf of the petitioner has submitted that since Abbas Haider (deceased) was fired at by the petitioner while he was in compromising position with petitioner's sister Mst. Kaniz Fatima, therefore, his case was not one of Had but of Tazir as both the Zania and the Zania were liable to be killed under Islamic law and as such his act is punishable under section 302(c) PPC, as amended. Further submitted that according to All Muhammad. Case (1993 P.Cr.UJ.
Lahore 557) if an accused seeing deceased committing sodomy with his child or Zina with his woman, murders the Zanis, then he (accused) would not be liable to Qisas for killing the deceased (see para 623 of Kitab-ul-Ikhtfar, translated by Maulana Salamat Ali Khan). In this view of the matter, the petitioned it is urged, is entitled to the grant of bail.
6. I have considered the contentions. In case of Federation of Pakistan versus Gul Hussain Khan (PLD 1989 Supreme Court Shariat Appellate Bench] 633) their Lordships observed as under at page 674, -(Provocation).
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7. According to above observation, an accused of course is not liable for Qisas but he is certainly liable for Tazir, because he took the law in his own hands and committed offence of Qati-i-Amd.
Above quoted observation has been followed by Supreme Appellate Court of Pakistan in The State versus Muhammad Hani/ and 5 others (1992 PSC (Crl.) SAC 748). A learned Judge of this Court in Ali Muhammad. Case (supra) has also not expounded different law to the one which has been laid down in the afore-mentioned authorities.
8. Since the petitioner duly armed with a gun went to the house of deceased and killed him there and also injured seriously his own sister, therefore, his case squarely falls under sections 302(c) and 324 PPC, the former offence being punishable with 25 years' R.L, the case falls under prohibitory clause of section 497 Cr.P.C., hence the petitioner is not entitled to the grant of bail Petition dismissed.