' The petitioner, Atlas Khan, stands charged for having killed his real brother Shamshad and sister- in-law Mst. Nizakat, wife of his other brother Jehanzeb, vide F.I.R. No,713 lodged by his father in Police Station University Town, Peshawar under section 302, P.P.C. On 25-7-1995.
2. After having failed to procure bail from the lower Courts the petitioner has come to this Court for the redress of his grievance and has prayed that he be released on bail till the decision of the case.
3. The learned counsel for the petitioner submitted that since the petitioner had seen his sister-in- law (wife of his other brother namely Jehanzeb) with his brother, in an objectionable position, therefore, he had acted under the sting of grave and sudden provocation and killed both of them.
According to him, the case of the petitioner would, therefore, fall under clause (c) of section 302, P.P.C. And the petitioner would be entitled to be released on bail. He further alleged that in a similar case titled Ali Muhammad v. Ali Muhammad and another reported as PLD 1996 SC 274 the Honorable Supreme Court had convicted the accused-husband for a period of only two years. It was held in that case:-- "30. I can now return to the facts of this case. This was not a case of a mental condition described in picturesque, if inaccurate language, as the 'Othello syndrome' which is defined as morbid jealousy for which there is no cause. For the reasons given by the learned Judge fin the High Court, which are based upon those stated by Justice Shafiur Rahman, as Chairman, of the Supreme Appellate Court, in Muhammad Hanif case 1992 SCM R 2047, the Courts below were entitled to accept the truth of the story in toto given by the accused. According to that story the deceased had intruded into the accused's home -- his castle -at the unearthly mid-night hour; that was invasion of his property and privacy and was criminal trespass. As if that was not enough, the deceased was found by the accused sleeping with his wife. In these facts, the accused was, in my opinion, entitled to invoke the defence of grave and sudden provocation; he was also entitled to invoke the defense of self-defense based on Verse 34 of Sura Al-Nisa as interpreted by Justice Shafiur Rahman, J. In Muhammad Hanif case. In such cases, there is no duty to retreat.
31. It appears however that in addition to the grounds stated in Muhammad Hanif case, the accused had also exceeded his right of self-defense. In that he had overpowered the deceased man by putting a 'Chaddar' around his neck but had pressed it so hard as to strangulate him to death. His case, therefore, clearly falls under clause (c) of section 302. It must follow, therefore, that the learned Judge in the High Court was not right in holding that the accused had committed no offence and was not liable to any punishment.
32. I would, therefore, convict the accused under section 302, clause (c) of the P.P.C.
33. As regards the question of sentence, the accused was arrested on 3-11-1990 and he remained in jail till 13-12-1992 when he was acquitted by the High Court's judgment of that date. In the circumstances, I am of the opinion that the sentence of imprisonment that the accused has already suffered will serve the ends of justice.
4. On the other hand, the learned Additional Advocate-General submitted that the petitioner has been charged, by his real father for double murder i,e,, for having killed his brother and Mst.
Nazakat, wife of his other brother namely A Jehanzeb, in the promptly lodged F.I.R. And the prosecution version is fully supported by the P.Ws. Who are closely related to the petitioner including his mother and brother, wife apart. In the circumstances, according to him, reasonable grounds do exist for believing that the petitioner has committed the offence charged with. He further stated that it was inconceivable that a father would charge his son falsely for committing double murder. He further stated that the contention of the learned counsel for the petitioner that his case falls under clause (c) of section 302, P.P.C. Is premature as it would be seen during the course of trial as to whether the case of the petitioner, in actual fact, falls B under section 302, P.P.C.
Clause (c), P.P.C. Or under section 302, clause (a) or (b), P.P.C. Besides this, he contended that the case of the petitioner apparently falls under section 302(b), P.P.C. In support of his contention, he placed reliance on case titled Abdul Haque v. The State reported as PLD 1996 SC 1 wherein a Full Bench of the Supreme Court (consisting of 5 Honourable Judges) have held:-- "56. In the instant case there are very peculiar facts and circumstances. Muhammad Shafique was on trial on charge of murder of father of the appellant. Muhammad Shafique used to attend the hearings of the case in custody and appellant Abdul Haque as complainant in that case also used to attend hearings coming armed with pistol. Plea of Abdul Haque that he fired shots at Muhammad Shafique in the Court-room on the day of judgment for the reasons that before announcement of judgment Muhammad Shafique abused Abdul Haque in Pushto in respect of his wife and wives of his tribe while passing in front of him and on that account Abdul Haque took out pistol and fired at him. This version is sufficiently substantiated by two eye-witnesses P.W.4, Yar Muhammad, and P.W.9, Muhammad Aziz who have admitted in their cross-examinations that Muhammad Shafique did say something in Pushto which was not understood by them as they were not conversant with that language. In the old law before amendment the appellant could have got away with lighter sentence provided in section 304, P.P.C. In such circumstances, appellant in this case cannot and should not be punished with Qisas. Secondly, proof as demanded under section 304, P.P.C. For Qatl-i-Amd is not available because the appellant has not made confession of Qatl-i-Amd as such before the trial Court. True that there is admission of firing by the appellant at the deceased but that admission is to be read not in isolation of but in conjunction with his specific plea that he was provoked by abuses in respect of his wife and wives of his tribe uttered by the deceased which he could not tolerate. Thirdly, witnesses produced in the trial Court in support of the charge do not fulfil the requirements of Article 17 of the Qanun-e- Shahadat. For such reasons it can be said that section 302(b), P.P.C. Will apply in this case and the appellant can be punished by way of Ta'zir. Under the said provision, power given to the Court is only to punish with death or imprisonment for life as Ta'zir and nothing less than that. We have also taken into consideration the fact that deceased Muhammad Shafique, when fired upon, was in custody and in handcuffs and therefore, helpless and unable to save himself. We have also considered the fact that the appellant is Pathan and as such traditionally very sensitive about anything derogatory stated about his womenfolk and is expected to react very quickly on account of provocation. In the circumstances, we consider that plea of grave and sudden provocation on account of abusive language can be treated as mitigating circumstance in awarding sentence under Ta'zir even if this plea as such is not available and does not get any protection in the new amended law.
57. For such peculiar facts and reasons as stated above, we dismiss this appeal with modification to the extent that the appellant is convicted under section 302(b) and is sentenced to imprisonment for life."
5. After going through the record of the case and the case-law relied upon by the learned counsel for the parties and without dilating upon the merits of the case, at this stage, lest it may prejudice the judicial mind of the learned trial Court, I am of the considered view that reasonable grounds do exist for believing that the petitioner is connected with the offence charged with and as such not entitled to be extended the benefit of bail.
6. This bail petition is without any substance and therefore, dismissed.