2013 P Cr (PLP)

ROOH-UL-AMIN KHAN, J.

The accused/petitioners herein, after refusal of concession of bail by the Courts below, in case F.I.R. No.383 dated 16-10-2012 registered at Police Station Gandigar, District Dir Upper, under sections 310-A/147/149, P.P.C., seek their release on bail as such.

2. As per F.I.R. the accused/petitioners are charged for giving sister of the complainant Mst. Sardari Gul as 'swara' to one Mukhtiar. As such, present case was registered vide F.I.R. referred above.

3. Perusal of the record would reveal that the complainant Rahim Shah had submitted an application/complaint dated 28-9-2012 before the Hon'ble Chief Justice of Peshawar High Court, Peshawar, which was referred to D.I.G. Malakand Division for necessary action and report. In compliance of above said order of the Hon'ble Chief Justice of this Court, Shaukat Ali Khan, S.H.O. along with police contingent visited village Gorkohi, Tehsil and District, Dir Upper, where the complainant in presence of Mst. Sardari Gul reported the matter, that about three years ago, one Mst. Khan Bibi, wife of Hakim Khan was ousted by her in-laws ('Susral') and to the house of her parents on allegation of illicit relation with the complainant. After some time the elders of the locality constituted a 'Jirga' for settlement of the animosity between complainant and in-laws of Mst. Khan Bibi, wherein the sister of complainant namely Mst. Sardari Gul was handed over to one Mukhtiar son of Taur Khan as "Swara", and 'Rukhsati' was effected after 40/41-days. Subsequently, after three months, the complainant came to know that Mst. Khan Bibi had been killed by his in-laws at "Lund Khwar", District Mardan. He charged all the 'Jirga' members for giving her sister Mst. Sardari Gul to Mukhtiar as "Swara". The report of the complainant was incorporated into F.I.R. mentioned in the preceding Para. During investigation, the petitioner Muhammad Sultan and his son Rahimuddin were found involved in the commission of offence and they were also arrayed as accused.

4. Learned counsel for the petitioners contended that F.I.R. has been lodged within an unexplainable delay of two years and three months that the petitioners are not nominated by the complainant or the victim Mst. Sardari Gul, in the F.I.R. and they are innocent and have been involved in the case on mere suspicion. He also argued that the complainant had submitted an affidavit before the lower Courts, that he has no objection if the petitioners are released on bail.

5. Learned counsel for the complainant straightaway conceded and stated at the bar that, under the instruction of his client/complainant, he has no objection if the petitioners are released on bail; the learned A.A.G. resisted the bail application in lukewarm manner.

6. Perusal of the record would reveal that the complainant was suspected for having illicit relation with Mst. Khan Bibi and to this effect a 'Jirga' was convened, wherein the elders of the locality gave the hand of Mst. Sardari Gul to one Mukhtiar as 'swara', on the pretext of prevailing custom of the area. The record further reveals, that during proceedings of 'Jirga' the petitioners, being father and brothers respectively, sacrificed their daughter and sister in lieu of threat to the life of the complainant. At the time of above mentioned decision of the 'Jirga', section 310-A had already been inserted in the Pakistan Penal Code vide Criminal Amendment Act 2004 (Act I, 2005) and in presence of the sections 310 and 310-A a practice of such tradition was mere derogation and disobedience of law. Handing over a lady, without her consent, in such a humiliating manner is not only against the fundamental right and liberty of human beings, enshrined in the Constitution of Islamic Republic of Pakistan 1973, but also against the importance and value of human beings given by the Allah Almighty to the most imminent of created things; mankind ('Ashraful Makhluqat').

7. To eradicate this self-imposed menace from the society the government has amended Pakistan Penal Code (P.P.C.) by inserting the amended section of 310-A, P.P.C., vide Criminal Law Third Amendment Act 2011 which is reproduced as under:-- "310-A. Punishment for giving a female in marriage or otherwise in 'badict-e-sulk', wanni or Swara: "Whoever gives a female in marriage or otherwise compels her to enter into marriage, 'badla-e-sulh', wanni, or swara or any other custom or practice under any name, in consideration of setting a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees." (underline supplied).

8. Since the petitioners have fully participated in the 'Jirga' and were Incharge of Mst. Sardari Gul being father and brothers, therefore, prima facie, case exist against them, falling under prohibitory clause of section 497, Cr.P.C., thus are not entitled to the concession of bail. In the wake of above discussion, this bail application is dismissed as such. MWA/7/P Bail refused.