2021 PLP 66 (YLRN)

SHAMSUDDIN ABBASI, J.

By this common order, I intend to dispose of captioned bail applications whereby applicants namely, Ghaffar son of Mazar Wassan and Sabir son of Mir Hassan Wassan seeking Post-arrest bail culminating from Crime No.18/2019 Policc Station, Kumb district, Khairpur for offence punishable under sections 302, 311, 337-H(2), 148, 149, P.P.C. Earlier their bail plea was declined by learned trial Court vide order dated 24.03.2020 respectively.

2. The facts of the prosecution case are that complainant SIP Manzoor Ahmed Shaikh lodged FIR on 01.02.2019 at 1500 hours at Police Station, Kumb stating that on the day of report he along with his sub-ordinate staff HC Bashir Ahmed Khaskheli, Sharafuddin Solangi and others having arms and ammunition set out for patrolling duty while patrolling they reached at stop of village Nawab Wassan where they received spy information that accused Zulfiqar Ali son Shahnawaz Wassan along with his four accomplices on imputation of karap are going to murder Miss Ramsha Wassan aged about 13/14 years in her own house. On such information complainant apprised his staff and proceeded towards the pointed place and when they reached at 1130 hours suddenly they heard fire shot report from the house of Parvez Wassan and when they reached near the house of Parvez Wassan they saw accused Zulfiqar son of Shahnawaz Wassan and four unidentified persons with pistols emerged out from the house of Parvez Wassan and while firing fled away towards northern side. It is alleged that complainant party at once stopped government vehicle and alighted along with police personnels, chased them and attempted to capture them but accused fled away in the village. Complainant party heard voice of weeping and cries from the house of Parvez Wassan and went inside the house saw that the ladies were weeping and dead body of a lady was lying straight on the cot and she was bleeding. One Mst. Khursheed wife of Parvez Wassan disclosed that the dead body was of her daughter Miss Ramsha to whom accused Zulfiqar son Shahnawaz Wassan along with his companion on the imputation of illicit intimacy of Karap murdered her by firing pistol shots. Due to non-availability of private mashirs the complainant nominated HC Bashir Ahmed Khaskheli and PC Jabbar Ali Bhatti as mashirs, saw dead body of deceased Miss Ramsha and noted injuries received by her. Complainant then lodged FIR on behalf of State.

3. It is contended by learned Counsel for applicant that applicant is innocent and has falsely been involved in this case by the Police; that name of both applicants do not transpire in the FIR as well in further statement; that complainant and witnesses are not witnessed the incident; that 161 and 164, Cr.P.C. statements are contradictory to each other; that case has been challaned and applicants are no more required for further investigation. Case of applicants requires further inquiry in terms of section 497(2), Cr.P.C. By stating so, they prayed for grant of bail to the applicants. Mr. Malano further added that Pistol has been foisted upon applicant Sabir.

4. On the other hand, learned Deputy Prosecutor General appearing for the State vehemently opposes for grant of bail on the ground that one innocent young lady has lost her life at the hands of applicant. Ocular version is supported by Medical Evidence. Offence comes within prohibitory clause of section 497, Cr.P.C. Crime weapon has been recovered from the possession of applicant Sabir.

5. Heard learned Counsel for the applicants/accused, learned Deputy Prosecutor General and perused the material available on record. It is a case of prosecution that Mst. Ramsha aged about 13/14 years left her house and contracted marriage with one Izhar Ali by exercising her right of free will. Accused Zulfiqar, Sabir (present applicant), Allah Warrayo, Allah Wassayo are influential persons of the locality, they were annoyed on such un-ceremonial marriage and they declared Mst. Ramsha as "kari" on the pretext of "karo-kari/siah-kari". It is stated that they are also near relatives of Mst. Khursheed (mother of Ramsha) out of them it is alleged that accused Zulfiquar is a notorious criminal. They put pressure on the Izhar party for return back of Mst. Ramsha and she was returned back to their parents a week prior to instant incident. On the day of incident (01-02-2019), SIP Manzoor Ahmed Sheikh of Police Station Kumb was on patrolling in the area along with his subordinate staff, when he received spy information that accused Zulifquar along with his accomplices were going to commit murder of Mst. Ramsha in her house by declaring her as "kari." Police party after receiving such information, reached at pointed place and heard fire shots from inside the house. In the meanwhile, he saw that accused Zulfiquar along with 4 unidentified persons armed with pistols emerged from the said house and all accused while resorted aerial firing fled away from the scene of offence. Police chased them and tried to arrest them but couldn't succeed, thereafter, Police went inside the house and found Mst. Ramsha dead and one lady disclosed her name as Mst. Khursheed (mother of deceased Ramsha) informed to the Police officials that accused Zulifquar and his accomplices had committed murder of her daughter on the pretext of karo-kari. Thereafter, Police after completing formalities retuned back to P.S. and lodged FIR of the instant case.

6. It is a matter of record that after registration of FIR, investigation officer had recorded statements of P.Ws namely P.Cs Bashir Ahmed, Jabbar Ali, Mazhar Ali, Sharfuddin and D.P.C. Niaz Ali under section 161, Cr.P.C., on the same day i.e. 01-02-2019. It is pertinent to mention here that all P.Ws. have disclosed the names of 3 unidentified accused persons out of 4 unidentified persons as 1). Sabir (present applicant), Hidayatullah alias Hidayat and Allah Wadhayo in their statements under section 161, Cr.P.C. During investigation police arrested accused Zulfiquar and Sabir and recovered crime weapons on their pointation and same were sent to forensic expert report and crime weapons were matched with the crime empties recovered from scene of offence. Plea taken by the learned advocates for applicants that legal heirs of deceased Ramsha have sworn affidavits to the extent of no objection for grant of bail to applicants.

7. In my considered view, it wouldn't be helpful to them on the ground that neither record reflects that compromise application has been moved by the parties nor they are prosecution witnesses except Mst. Khursheed, instant case pertains to the issue of "karo-kari/siah kari" and it has been observed that trend for killing on the pretext of karo-kari, honour killings are increasing day by day particularly in this part of the country where innocent girls are being killed under worst tradition of karo-kari on false and frivolous allegations. In most of cases it has also been observed that either killers are close blood relatives of deceased lady or legal heirs are trying to save the real culprits or even they are not ready to lodge case against accused persons and ultimately state is performing its duty and lodging FIRs against culprits. In the present case none from the victim side has come forward to lodge case against accused and by filling affidavits in favour of accused for grant of bail would amount to save accused persons. Therefore, I would not appreciate the role of legal heirs by extending no objection for grant of bail to accused.

8. Prosecution cited Mst. Khursheed as witness and she got recorded her statement through her advocate under section 164, Cr.P.C. before concerned magistrate, whereby she allegedly disclosed the names of 4 unidentified person who committed murder of deceased Ramsha along with co-accused Zulifquar namely accused Izhar Ali, Riaz Ali, Imran Ali and Ghaffar (present applicant in Bail Appl. No.161/2020).Her statement under section 164, Cr.P.C. was not considered by I.O. of the case for the reason that Mst. Khursheed in one hand is trying to save the real culprits, who were identified by 5 P.Ws. in their statements under section 161, Cr.P.C. and on the other hand, she is trying to settle score with Izhar Ali (to whom deceased Ramsha contacted marriage) as she disclosed the names of Izhar Ali and Riaz Ali and Imran Ali, who are close relatives inter-se. During investigation I.O. found them innocent and released them from the charge under section 169, Cr.P.C. and I.O. placed report under section 173, Cr.P.C. in the court of learned concerned Magistrate, who had accepted such report. It is pertinent to mention here that order for acceptance of report was not challenged before any forum which attained finality. Now coming to the case of applicant Ghaffar, the only evidence collected against him is statement of Mst. Kursheed. It is a matter of record that I.O. has not considered the version of Mst. Khursheed to the extent by disclosing the names of 4 unidentified persons namely Izhar Ali, Imran Ali, Riaz Ali and Ghaffar. It is also pertinent to mention here that I.O. in its final report, submitted by him under section 173, Cr.P.C. in Court of learned concerned Magistrate has mentioned that he has not collected any evidence against applicant Ghaffar to connect him in this crime but as he failed to prove his innocence, therefore, challan has been submitted against him. In fact I.O. declared applicant/accused Ghaffar as innocent. Prima-facie case of applicant Ghaffar calls for further enquiry in term of section 497(2), Cr.P.C., therefore, applicant Ghaffar is admitted on bail subject to furnishing solvent surety in the sum of Rs.5,00,000/- (five hundred thousand only) and P.R Bond in the like amount to the satisfaction of learned trial court.

9. As far case of applicant Sabir is concerned, he has been implicated by all 5 P.Ws in their statements under section 161, Cr.P.C. recorded by I.O. on the day of incident, crime weapon has been recovered on his pointation and forensic/Ballistic expert report is positive same has matched with empties recovered from the place of incident. Prima Facie, sufficient material is available on record to connect him in commission of offence which falls within the prohibitory clause of section 497, Cr.P.C., therefore, bail application of Sabir is hereby dismissed. Needless to mention here that observation made here in above are tentative in nature. Trial court shall not be influenced while deciding the case on merits. However speedy trial is right of accused, therefore, trial court is directed to conclude the trial within 3 months under intimation to this court.

10. Bail applications stand disposed of. SA/G-28/Sindh Order accordingly.