2012 P Cr (PLP)

SHAHID ANWAR BAJWA, J.

F.I.R. No.24 of 2007 was recorded at Police Station Wasti Jiwan Shah on 24-4-2007 for an incident alleged to have occurred on the same day 9 hours earlier. The complainant stated that deceased Mst. Husna was his daughter and she was married to one Muhammad Ameen Chachar from whom she had eight children. Few months ago brother of husband of Mst. Husna asked his brother to give his daughter to his son, which was refused. This annoyed the brother. On the night of the incident complainant along with family members was available in his house when at about 3 a.m. he heard cries of his daughter and son-in-law and sound of firing from their house. He along with other villagers came running to the house of his son-in-law and saw that his daughter had received fire-arm injuries on different parts of her body and she had expired. Complainant's son-in-law and grandson told him that a group of three persons including the present applicant armed with a lathi came to the house, a co-accused gave Hakals, co-accused Matro fired upon Mst. Husna as did co-accused Ameen and it was also alleged with the present applicant caused lathi blows on left arm of Muhammad and on his back. Thereafter the accused persons fled away. Learned counsel for the applicant submitted that the complainant is not eye-witness and both the eye-witnesses have sworn affidavits and have stated that they were not present there. He submitted that no direct role is ascribed to applicant and the applicant has been falsely implicated. Learned counsel relied upon Muhammad Najeeb v. The State (2009 SCMR 448), Muhammad Nawaz alias Najja v. The State (1991 SCMR 111) and Muhammad Soomar and another v. The State (2011 PCr.LJ 1740). Learned DPG, vehemently opposed the bail application and submitted that applicant along with others trespassed into house of the deceased. He submitted that the applicant had previous criminal record. Lastly he argued that such like affidavits cannot be given much weight and in this regard he relied upon Naseer Ahmed v. The State (PLD 1997 SC 347). I have considered the submissions made by learned counsel and have also gone through the record. In Muhammad Najeeb's case (supra) it was stated by the complainant that he along with his wife and sister's son was going in a Suzuki van and on the way unknown person boarded and as the vehicle slowed down due to a speed breaker the unknown person pushed the nephew out of the vehicle and their companions who were just present there took him in another vehicle and abducted him. The abductee was recovered later on. It was contended that firstly the abductee was not recovered from possession of the petitioner and, secondly he gave an affidavit exonerating the petitioner. In Muhammad Nawaz's case (supra) prosecution witnesses appeared before the Supreme Court and reaffirmed the averments made by them in their affidavits. In Muhammad Soomar's case (supra) what prevailed with the Court was that the injury allegedly caused by the applicant did not fall within the prohibitory clause and bail was granted. Learned DPG relied upon Naseer Ahmed's case (supra) where. the honourable Supreme Court observed as under:-- "A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits". Case of Muhammad Najeeb (supra) is distinguishable because it is abductee himself who had exonerated the accused persons. Case of Muhammad Nawaz does not give entire facts and therefore no reliance can be placed on it. As far as the case of Muhammad Soomar (supra) is concerned it was a dispute relating to a construction on a plot and therefore it is also distinguishable. As far as the affidavit is concerned the Supreme Court has clearly held in Naseer Ahmed's case (supra) that not much value can be assigned to such affidavit. Essential facts of the present case are that one family refused to give hand of a daughter, adult and sui juris, to son of the main accused, which son was still a minor. This caused umbrage and therefore accused persons at 3 a.m. went to the house of the deceased and committed the murder showing the utter contempt as to how she could be instrumental in refusing to hand over hand of a adult girl to their minor boy. Such behaviour reeks of decrepit mentality and such behaviour does not deserve concession of discretionary remedy of bail. Consequently this bail application is dismissed. M.W.A./A-22/K Bail refused.