' The petitioner seeks bail in a case registered at Police Station Bahlak, District Faisalabad, vide F.I.R.
No,70 dated 8-2-1994, for an offence under section 302, P.P.C., on the allegation that he killed Mst.
Nawab Bibi at 11.30 a.m. By firing shot from his carbine 12 bore. It is stated in the F.I.R. That the deceased was petitioner's sister and she after being abducted had contracted marriage with the complainant about 20 years back and from the wedlock, they had five children. The motive for the murder is stated to be the elopement of the deceased with the complainant.
2. Learned counsel for the petitioner relying on Liaquat All v. State 1994 PCr.LJ 2012 contends that the petitioner had right to kill his sister, when he found opportunity to do so, because she was living in adultery with the complainant. He further submits that no eye-witness living near the place of occurrence has been cited in the F.I.R., which makes the occurrence doubtful. The occurrence as stated in the F.I.R. Is in conflict with the medical evidence. On the contrary, the learned State counsel submits that the petitioner has been fully found involved in the commission of the crime. It is a broad daylight occurrence and there is no question of mistaken identity because the petitioner is brother-in-law of the complainant. He further submits that the petitioner has already been challaned and the case is pending in the Court of learned Additional Sessions Judge concerned.
3. The precedent case relied upon by the learned counsel for the petitioner is clearly distinguishable. In that case Abdul Hameed deceased was seen by the petitioner in pari delicto with his sister Mst. Iqbal Bibi and in that state of mind, he killed Abdul Hameed with Chhuri and injured his sister. It was in the background of these circumstances that Mr. Justice Muhammad Amir Malik made the following observations, while granting bail to the accused:-- "Chapter IV (General Exceptions) of the Code is to be read in conjunction with substituted Chapter XVI. Section 76 provides that nothing is an offence which is done by a person in good faith believing himself to be bound by law to do it. Extending the analogy to the facts of the case in hand, one can prima fade say that the act of the petitioner in finishing Abdul Hameed deceased was rather in furtherance of the pure moral and ethical Islamic atmosphere in society when he proceeded to do away with the life of a Zani. Section 79 ibid also lays down that nothing is an offence which is done by any person who is justified by law to do it or in good faith believes himself to be justified by law in doing it. A Muslim on seeking a person committing Zina with a woman and that too of his own house, under Islamic Law, is justified to do away both."
4. Learned counsel for the petitioner submits that the petitioner in this case also had killed his sister, under pure moral and ethical Islamic impulse to do away with life of a Zani, because the petitioner had entertained the belief that the deceased had not contracted marriage with the complainant and was living in adultery.
' I am afraid, the arguments of the learned counsel cannot be accepted. It appears to be a case of elopement. The complainant married the deceased about 20 years back, though after abduction/elopement. But there are five children out of this wedlock and eldest one is a son of 17 years. Therefore, it is not a case where the petitioner lost self-control after seeing his sister in pari- delicto with a stranger. In the case of Liaquat Ali, ibid, while observing "the petitioner killed his sister purely for moral and ethical purposes with a view to kill a Zani", his Lordship never intended to hold that it is the duty of every believer to himself take the life of a Zani. The precedent case itself is based on the dictum laid down in Ghulam Yaseen and 2 others v. State PLD 1994 Lah.
392. It was held in that case that a Qatl committed on account of Ghairat is not the same as Qatl- e-Amad pure and simple and the persons found guilty of Qatl committed on account of Ghairat should be given concession and they cannot be punished with Qisas. Taking this view, the convict was sentenced to a term of five years R.I. Under section 302(c) of P.P.C. Therefore, what is to be seen is whether a believer can be given a licence to kill in his own whims any person whom he finds committing Zina. Such a conclusion is not warranted from either of the two aforesaid cases decided by this Court. In the case of Ghulam Yaseen, the accused persons were not acquitted but the sentence was reduced by taking the view that it was not a Qatl attracting Qisas because it had been done under the impulse of Ghairat. Islamic Society does not permit that citizens should take the law in their own hands and execute punishments on seeing the commission of an offence, in furtherance of their moral and ethical zeal to purify the society of all sins. To say so, would result in ruining the entire society and nothing but chaos will rule the country. The institution of Qazi in Islam is most paramount. The complaint is made before the Qazi who after hearing the parties, makes the adjudication in accordance with Islamic law. Nobody, howsoever high he may be, can be allowed to take the law in his hands. For the commission of an offence the case is to be adjudicated by the Qazi and the punishment awarded by him is then executed.
In the instant case, the marriage between the petitioner's sister with the complainant took place as far back as 20 years and out of that wedlock, five children are born. It is not open to the petitioner to take the plea that he killed his sister because she was living in adultery and he did so in the exercise of his right granted to him under Injunctions of Islam or that it was his religious duty to take the life of his sister. The petitioner has been challaned and his case is already before the learned Additional Sessions Judge. The case of the petitioner is not, covered by subsection (2) of section 497, Cr.P.C.
For what has been discussed above, the petitioner is not entitled to the grant of bail at this stage.
Accordingly, petition for bail is dismissed.