2004 PLP 644 (MLD)

Fazl-e-Haq Abbasi for Appellant. Shad Muhammad Khan for Respondents. Date of hearing: 12th January, 2004. Having been involved in case F.I.R. No. 23, dated 5-4-2003, under sections 302/148/149 P.P.C. and sections 11/19 of the Offence of Zina (Enforcement of Hudood) Ordinance, - 1979, Police Station Darband, accused respondents No.1 and 2 moved application for their release on bail in the Court of Learned Judicial Magistrate, Oghi, which was dismissed vide order dated 8-5-2003, Thereafter they moved the Court of learned Sessions Judge, Mensehra, their application was allowed and they were directed to be released on bail vide order dated 7-6-2003, Being not contented with the bail granting order the petitioner has moved the application in hand for cancellation of bail granted to them.

2. Brief facts of the case are that Mst. Saleema and Mehr Afzoon had gone to their Dhaka Rakh alongwith the petitioner for cutting the grass early in the morning on the day of occurrence. They were also accompanied by their relative, namely. Abdul Latif, When all the four persons reached the Dhaka Rakh known as "Rattan" located in village Nazral, they started cutting grass and it was at 9.15 a.m. that Qasim and his son Dildar residents of Chappar duly armed with kalashnicovs alongwith Abdul Jan, Banaras and Khanizaman arrived there. Qasim directed Mst. Saleema to accompany him but she bluntly refused. It was at this juncture that Abdul Jan, Banaras and Khanizaman directed Qasim and his son Dildar that they should kill her if she was not ready to accompany them. Both Qasim and his son Dildar started firing at Mst. Saleema with respective kalashnicovs, as a result of which, she was seriously injured and expired at the sport. The occurrence was witnessed by Nist. Mehr Afzoon and Abdul Latif apart from the petitioner. The motive for the offence was that prior to the occurrence the real brother of the petitioner namely Sardar Khan divorced the daughter of Qasim and sister of Dildar accused and since then accused Qasim and his co-accused were after Mst. Saleema to kidnap her in retaliation.

3. I have heard Mr.Fazal-e-Haq Abbasi Advocate for the petitioner/complainant, Mr. Shah Muhammad Khan Advocate for the accused/respondents and Mr. Muhammad Ayub Khan learned Deputy Advocate General for the State. I have also perused the record carefully.

4. The role attributed to accused/respondents is that they raised lalkara on which their co-accused attacked the complainant side. They have not played any active/overt act in the commission of the offence. It would be for the trial Court to examine the evidence and determined the effect of lalkara raised by the respondents. In a similar case "Tariq Zia v. State" (2003 SCMR 958) the august Supreme Court of Pakistan granted bail to the accused, therefore, the learned Additional Sessions Judge-II, Mansehra, had rightly appreciated the legal position while enlarging the accused respondents on bail. The bail granting order is neither arbitrary nor fanciful nor perverse nor the same has been obtained by playing fraud or by misrepresentation. 5.I, therefore, dismiss the application. N.H.Q./10/P Petition dismissed.