2014 PLP 2284 (YLR)

MUHAMMAD DAUD KHAN, J.

Having been unsuccessful in obtaining bail from the two courts below, the accused/ petitioners Jumma Khan and Ali Zaman involved in case F.I.R. No. 91 dated 6-3-2013, under sections 302/201/202/ 148/149, P.P.C. of Police Station Ghazni Khel, Lakki Marwat, have filed this further application through their counsel for their release on bail.

2. On 6-3-2013 at 03.15 hours, complainant Mst. Zartaja Bibi wife of accused/ petitioner Juma Khan reported the matter in injured condition at City Hospital, Lakki Marwat. She stated that on the eventful night, she and her husband were sleeping in their room. Her sons namely Sher Zaman and Badi uz Zaman were sleeping in another room. At 01.30 hours, she heard dreadful voices, upon which she and her husband awoke. She opened the door and came out. In the meanwhile, her son, Sher Zaman also came out from his room and, due to fear, started firing with his 3X3 bore rifle. She was hit with fire-shots and injured on her left leg. She also saw the dead-body of an unknown woman.

3. On 9-3-2013, Gul Tayaz Khan husband of the deceased Mst. Samrina Bibi submitted an application under section 22-A Cr.P.C. before the Justice of the Peace, seeking registration of a criminal case against five persons including the complainant. Gul Tiaz narrated a different version of the case. He stated that the deceased Mst. Samrina was his wife, whose parents have passed away. Jumma Khan the uncle of his wife was unhappy with his marriage with the deceased. On 5-3-2013, due to some dispute between him and the deceased, he left alone his wife in her room whereas he went for sleeping to the room of his mother. At morning when awoke for Fajjir prayer, he found his wife missing. He was about to search for his wife. Suddenly, the local police informed that the dead body of his wife was lying in the house of her uncle Juma Khan. He went there and requested the S.H.O. to record his report. The S.H.O. did not record his report, replying that the case was already registered. Gul Tiayaz stated that his wife had gone to the house of her uncle Juma Khan in order to take shelter there. He charged accused Juma Khan, his sons, Sher Zaman, Badi uz Zaman, Ali Zaman and his wife Zartaja Bibi for committing the murder of his wife. He blamed that Jumma Khan and his family manipulated to register a case under section 319 P.P.C. and a false PM report. The learned Additional Sessions Judge-IV/Justice of Peace, Lakki Marwat accepted the petition and directed the S.H.O. to record statement of Gul Tayaz under section 161, Cr.P.C. and to array Juma Khan, his sons and complainant Mst. Zartaja Bibi as accused in the case.

4. Muhammad Rashid Khan Dirma Khel, counsel for accused/ petitioner argued that the petitioners are falsely charged, respondent No.2 is on inimical terms with petitioners, the version of Mst. Zartaja Bibi is natural, Statement of respondent No.3 is unreliable because she is a minor, hence has no motive of the occurrence and there are divergent versions of the occurrence. He also argued that the petitioners are entitled to bail on the principle of consistency as Mst. Zartaja Bibi has been released on bail.

5. Mr. Faqir Mehboob-ul-Hameed, counsel for respondent argued that the petitioner was unhappy with the marriage of the deceased. He maintained that in the same background the petitioner had earlier attempted on the life of Gul Tayaz in Tajazai Adda. He further argued that petitioners were guilty conscious so they concocted the prosecution story with the connivance of S.H.O. Saleem Khan and lady Doctor Humara Tahir. It was in light of exhumation that the true facts of the case got revealed, counsel for respondent added. It was further argued that Mst. Zartaja Bibi concealed real facts by informing the local police that the dead-body was of an unknown women. The respondent also contended that Mst. Kamrina Bibi sister of the deceased has charged the accused/ petitioners in her statement recorded under section 164, Cr.P.C.

6. I have heard arguments of learned counsel for the parties, Asstt: A.G for the State at length and perused the record with their valuable assistance.

7. Both the learned counsel for the parties have argued the case at great length touching the merits of the case, but at bail stage deep appreciation is unwarranted and I will confine myself only to the tentative facts of the case, so that it may not prejudice the case of either side. No doubt, deadbody of deceased Mst. Samrina Naz was found from the house of accused/ petitioners, but the accused/ petitioner Jumma Khan is real uncle of deceased and her two sisters were already residing with him. Moreover, it is nocturnal occurrence committed in abadi area, the deceased has sustained apart from blunt injuries, firearm injuries too, but no one from neighbors/ locality come forward to depose about the occurrence, hence, at the moment, this case comes within the ambit of further inquiry.

8. The inimical terms between the respondent No.2, Gul Tayaz and accused/ petitioners are also admitted by both sides, hence, false implication on the part of respondent No. 2 could not be ruled out.

9. The arguments of both the parties go to the heart of the case, touching the merits. I am afraid I cannot appreciate the facts in such details, which may prejudice the contention of either party. In light of the scenario reflected from the available record and arguments of parties a tentative assessment demonstrates that on the one side, it is undisputed that the dead-body was found in the house of the petitioner Juma Khan. But, on the other hand, the petitioner is the uncle of the deceased. Moreover, two minor sisters of the deceased are living in the house of Juma Khan. Apparently, there is no indication of any ill will between the deceased and the petitioner Juma Khan. It appears from the record that the deceased received firearm and blunt injuries. The occurrence took place at night time in a residential area. But there is no independent witness of the occurrence. In such circumstances, this case is one of further inquiry.

10. The fact of enmity between the petitioner Juma Khan and the Gul Tayaz, husband of the deceased is admitted by both parties. This creates the possibility of false implication of respondent No.2. Of great significance is the fact that there are more than one versions of the story of the incident. One version is that which has been narrated by Mst. Zartaja Bibi in the F.I.R. This version is prima facie supported by the post mortem report. The second version is told by Mst. Kamrina Bibi, a minor sister of the deceased. Mst. Kamrina Bibi unveiled this version in her statement recorded under section 164, Cr.P.C. Ironically, this version too finds support from the post mortem report. A third version is spelt out by the Investigation Officer. Which version is correct and true? This fundamental question is to be answered by the trial Court.

11. The record also tentatively reveals that the role of the present petitioners is the same as attributed to Mst. Zartaja Bibi, co-accused already released on bail. As the Mst. Kamrina Bibi sister of deceased has charged all the accused for committing her murder with their respective weapons.

12. While the offence in question is of a heinous nature and entails capital punishment, it is a settled judicial opinion that such a factor alone shall not be considered as an impediment in the grant of bail. A key test, however, is that on the basis of other attending circumstance, a good prima facie case is made out. The facts discussed above do not make out such a case. When an accused appears to be entitled to the concession of bail, refusal in granting bail will amount to unjustified incarceration with no proper reparation. This is very much clear from the following two rulings "Tariq Bashier and 5 others v. The State" (PLD 1995 SC 34) and "Riaz Jafar Natiq v. The State" (2011 SCMR 1708).

13. As a result of my above discussion, I hereby accept the petition and direct that the petitioners shall be released on furnishing bail bonds to the tune of Rs.2,00,000 (two lac), with two sureties each in the like amount to the satisfaction of the local judicial Magistrate/ MOD. The sureties shall be local, reliable and men of means. MWA/335/P Bail granted.