1994 P Cr (PLP)

Maulvi Muhammad Sultan Alam for Petitioner. Anwar-ul-Haq for the State. A case under section 302/364/450/34, P.P.C. was registered against Muhammad Yasin petitioner and Muhammad Iqbal his co-accused vide F.I.R. No.393/93, at Police Station Luddan, District Vehari, for the allegation of committing the murder of Mst. Farzana, a minor daughter of Mst. Maryam, the complainant in the case, after kidnapping her from outside the house of the first informant at noon time on 21-11-1993. Mst. Farzana deceased was step sister of Muhammad Iqbal who after death of her father was in the custody of her mother Mst. Maryam, a lady not belonging to the Brother of her late husband. Muhammad Iqbal having the impression and apprehension that Mst. Maryam would marry Mst. Farzana, his stepsister on attaining her puberty with a person of her choice in her Brotheri against his will and consent was persistently demanding the custody of minor but Mst. Maryam was not prepared to accept this demand of Muhammad Iqbal. It is stated that three days prior to the occurrence, Muhammad lqbal accused repeated his demand which having been turned down by Mst. Maryam, he extended threats to kill the minor. On the fateful day Muhammad lqbal accused coming to the house of complainant on a motor-cycle driven by the petitioner lifted the deceased from the courtyard of the house and on the intervention of Mst. Maryam, the petitioner pushing her aside drove motor-cycle away with deceased and Muhammad Iqbal. Later Muhammad Iqbal after his arrest on the same day i.e. on 22-11-1993 got the dead body of Mst. Farzana recovered from the cotton crop. The medical examination of the dead body revealed that the death was the result of asphyxia due to strangulation.

3. Learned counsel for the petitioner contends that the only role attributed to the petitioner is that of taking away the girl on a motor-cycle with no evidence of intention to kill. He argued that the petitioner having accompanied Muhammad Iqbal to the house of Mst. Maryam, his stepmother in good faith shared no common intention either to kidnap the minor or to commit her murder, hence the provisions of sections 364, 364-A and 365 P.P.C. being not applicable against him, the question of his vicarious liability vis-a-vis the murder charge needs further inquiry.

4. Learned State counsel has opposed the giant of bail on the ground that the petitioner having participated in the kidnapping of the minor girl was also party to the murder.

5. The forcible removal of the minor by the petitioner and his co-accused from the house of complainant on motor-cycle and ultimately recovery of her dead body at the instance of Muhammad Iqbal is a strong evidence of commission of an offence under section 364, P.P.C. which, reads as under:- "Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine." The prosecution is equipped with the direct evidence of Mst. Maryam, the mother of the deceased and the two P.Ws. namely Muhammad Ramzan and Ghulam Farid in support of the allegation of forcible removal of deceased by the petitioner in company of Muhammad IqbaI on a motor-cycle. Mst. Farzana, the minor girl after having been kidnapped was killed on the same day. The petitioner alongwith Muhammad Iqbal coming on motor-cycle to the house of complainant and pushing her aside while lifting the deceased played an active role in the occurrence with the intention to kidnap for the purpose of section 364, P.P.C. Apparently, the essential clement of commission of an offence under section 364/302/34, P,P.C. having been available, the case against the petitioner except that the motive is not attributed to him, being not distinguishable to that of his co-accused, contains reasonable grounds to believe that he committed an offence falling within the prohibitory clause of section 497, Cr.P.C. Mst. Maryam, the mother of the deceased has given a B natural account of occurrence providing sufficient evidence of involvement of the petitioner in the commission of offence and in absence of 4n explanation with the petitioner that for what reason, he accompanied Muhammad Iqbal and why despite efforts made by the first informant he pushing her aside lifting the minor forcibly drove away the motor-cycle made him party in the commission of offence to which he is being charged. The circumstances do not lean in his favour to entitle him to the concession of bail. This bail application accordingly stands dismissed. N.H.Q./M-1647/L Bail refused.