2005 PLP 1676 (YLR)

Through this petition, Mst. Ameeran Mai, complainant has sought cancellation of post-arrest bail granted to respondent Muhammad Sadiq, in case F.I.R. No.295 of 2003 registered at Police Station, Naushehra Jadeed for offences under sections 324/436/435/452/34, P.P.C., by the learned trial Court vide order dated 24-2-2004. After grant of bail to the respondent, the petitioner approached the Court of learned Additional Sessions Judge, Ahmadpur East, who dismissed the application of the petitioner vide order dated 2-4-2004. Hence, this petition.

2. The relevant facts per F.I.R. are that the husband of the complainant lived in Karachi to earn living. About 2-1/2 months earlier Rasool Bakhsh, father of the husband of the complainant, engaged his son Muhammad Akram with Mst. Shafia, sister of Sadiq, respondent. About 1-1/2 months prior to occurrence, Muhammad Sadiq went to the house of complainant and asked the complainant's father Rasool Bakksh to transfer two Kanals of land in favour of his sister. Rasool Bakhsh did not agree. The complainant also opposed the transfer of land in favour of respondent's sister; resultantly, the engagement 'was broken. Thereafter Muhammad Akram was married with Mst. Tasleem. This caused grievance to Sadiq, respondent, who issued threats to teach a lesson to the complainant. On the fateful night complainant and her daughter were sleeping in a room, while Akram, brother of complainant's husband, and his wife Tasleem Mai were sleeping in the adjacent room. At about 11-30 during night the complainant got up due to some noise and saw in the light of lamp (Diya) that Muhammad Sadiq, who was holding a plastic container along with another accused present in the room. Sadiq respondent after uttering that he would teach a lesson to the complainant for getting Akram married with someone else threw kerosene oil on the complainant and thereafter put it on fire; resultantly, right side of belly and right leg of the complainant were burnt. The accused also put the boxes and paiti lying in the house on fire. Resultantly, clothes, ornaments and cash amounting to Rs.46,000 belonging to the complainant were burnt. The complainant raised alarm which attracted Muhammad Akram and others to the spot, who saved the life of the complainant. The respondent was arrested in this case on 21-1-2004 and sent to jail after investigation.

3. Learned counsel for the petitioner has argued that the act of the respondent is fully covered by the provisions of section 324, P.P.C., which attract the prohibitory clause of section 497, Cr.P.C. Thus, the learned trial Court was not justified in allowing bail to the respondent. The learned counsel has placed reliance on the case of Arbab Ali v. Khamiso and others 1985 SCMR

195. Conversely, the learned counsel for the respondent has submitted that during investigation the respondent proved his innocence by producing witnesses before the Investigating Officer (I.O.); that at the time of occurrence, the respondent was present at Jilalpur Pirwala; and that the respondent was exonerated in a Punchayat. The learned counsel has further argued that in F.I.R. it was stated that complainant and her daughter were sleeping in a room and the word cot was not mentioned, while Mst. Rukhsana daughter of the complainant stated in her statement under section 161, Cr.P.C. that she and her mother were sleeping on the same cot. The learned counsel has added that in that case Mst. Rukhsana should also have received injuries. The learned counsel has lastly argued that in report under section 173, Cr.P.C. /Challan, it has been mentioned that the respondent appeared to be innocent; however, the matter is referred to the Court for decision. Learned A.A.-G. has submitted that the bail granting order passed by the learned trial Court was not sustainable, as it was based on police opinion recorded in Zimni No.22 dated 26-1-2004. He has added that the learned trial Court should have considered the incriminating evidence available on the record of the case and should not have been persuaded by the police opinion alone.

4. I have heard the learned counsel for the parties at length and have also gone through the relevant record of the case. It has been noticed that the matter was reported to the police without any loss of time. The version given in the F.I.R. is fully supported by the medical evidence. Soon after her medical examination, the victim/complainant was referred to BVH Bahawalpur, as she could not be properly treated at the local hospital of Mubarakpur. Admittedly, she remained admitted in BVH, Bahawalpur for treatment. Muhammad Akram, brother of the husband of complainant; Mst. Tasleem wife of Muhammad Akram and Mst. Rukhsana daughter of the complainant supported the prosecution case. As the occurrence took place inside the house, they were the most natural witnesses and their statements could not be lightly brushed aside due to their relationship with the complainant. The police opinion relied upon by the learned trial Court is not based on any solid evidence, rather it is based on the fact that one Qari Yasin did not state on oath that respondent was the accused in the case. Qari Yasin was not a witness of the case. His statement was of no relevance. It is unfortunate that instead of collecting evidence on their own and investigating the matter honestly, efficiently and impartially, the Investigating Officer had been relying on Kathhs and oaths which practice has been depreciated by the superior Courts of the country. Reference can be made-to the case of Mst. Bashiran Bibi v. Ghulam Mohy-ud-Din and others PLD1990 SC

83. The learned Courts below have also failed to take notice of the fact that the complainant had hardly any grudge or reason to involve the respondent in a false case. It was respondent who, according to F.I.R., felt aggrieved, as the engagement of his sister with Muhammad Akram was broken because father of Muhammad Akram refused to transfer two Kanals' of land in the name of respondent. The complainant had' played an important role in refusal of transfer of land. The argument of the learned counsel for the respondent that cot was not burnt has no force. It has nowhere been mentioned that after finding the respondent in her room the complainant kept lying on her cot. The fact of burning of cot has not even been mentioned in F.I.R. The learned trial Court, while granting bail to the respondent, held that section 324, P.P.C. was not made out, as injuries were not declared dangerous to life. The findings of the learned trial Court are against the facts and law. The intention of a person is to be gathered by his act. The respondent during night trespassed into the house of the complainant, threw kerosene oil on her and thereafter put light to it. What other intention could be that of the respondent than to take life of the poor woman.

5. The above-noted facts and circumstances have not been taken into consideration by the learned Courts below. Reasonable grounds exist to connect the respondent with the offence attracting the prohibitory clause of section 497, Cr.P.C. Thus, I allow this petition and cancel the bail granted to the respondent vide order dated 24-2-2004. However, the learned trial Court is directed to conclude the trial within two' months after the receipt of this order, under intimation to the Deputy Registrar of this Bench. The learned trial Court would hear the case on day-to-day basis, if necessary, and would procure the attendance of the P.Ws. through coercive l11eans, if there need be.

6. It is, however, made clear that observations made by this Court are only tentative in nature and would not influence the mind of the learned trial Court.

7. A copy of this order would be sent to the learned trial Court forthwith. H.B.T./A-389/L Bail cancelled.