2019 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

This criminal bail application under section 497, Cr.P.C. was filed for release of applicant/accused Muhammad Panah, who is booked in crime No.04 of 2017, registered at Police Station Daud Malik (District Shikarpur), for offences punishable under sections 302 and 311, P.P.C.

2. The facts of the case are that on 02.08.2017, ASI Taj Muhammad Maganhar of P.S Daim Malik (District Shikarpur) lodged FIR on behalf of the State, with following narration: "It is compliant on behalf of the State that today, we were present at police station, where we received information through spy that in village Mubarak Shar, the accused namely, Muhammad Panah son of Peerano Shar resident of Mubarak Shar, while levelling false allegation of illicit relations (Karap) against Mst. Rukhsana wife of Peerano daughter of Qalab Ali Shar with one Muhammad Khan alias Budho son of Ali Hassan Shar resident of Mubarak Shar, aged 28/30 years, has committed double-murder of both of them. As such, I along with subordinate staff, namely, H.C. Ghulam Abid, P.C. Ali Sher, P.C. Zubair Ahmed duly armed with officials weapons while boarding in a private vehicle left police station vide entry No.9, at 1400 hours, dated 02.8.2017, and at about 1430 hours we reached village Mubarak Shar in Otaq of Muhammad Khan Shar, where we found dead body of Muhammad Khan alias Budhal son of Ali Hassan Shar resident of Mubarak Shar lying on the cot having firearm injury in his back; he was bleeding. Then, we went in the house of the lady, where we found that Mst. Rukhsana wife of Peerano was having gun shot injury in her chest; she was bleeding and lying dead. We then arranged conveyance and brought dead bodies of both the deceased and prepared postmortem report and with the help of other staff sent dead bodies to Taluka Hospital Lakhi Ghulam Shah. Thereafter, we with the help of staff tried to arrest accused Muhammad Panah son of Peerano by caste Shar, resident of Mubarak Shar but he could not be arrested as after committing double-murder he has escaped away. Since, there has been double-murder under allegation of "Karap", therefore, none from relatives of the deceased is ready to register the case, as such we came back to police station. Therefore, the case is being registered on behalf of the State, that accused Muhammad Panah son of Peerano has committed murder of Muhammad Khan alias Budhal and a lady Mst. Rukhsana under allegation of "Karo-Kari" by making gun shots at them".

3. Learned counsel for the applicant has contended that there is no ocular evidence against the applicant; that no one has witnessed the applicant while committing the alleged incident; that none from public have been cited as witness; that police wants to save the actual assailants; that there is one day un-explained delay in lodging of FIR; that applicant has been falsely implicated in the case; that medical evidence does not show that "Zina" had been committed by the spouse and even the last wearing clothes were also not stained with semen; that applicant is residing in village Ali Bux Shar which is situated far away from village where the alleged incident took place; that nothing has been secured from possession of applicant and the gun has been foisted upon the applicant in order to strengthen the prosecution case; that legal heirs of deceased Mst. Rukhsana and some of prosecution witnesses have filed the affidavits, exonerating the applicant/accused from commission of alleged offence. In support of his contentions, the learned counsel for applicant relied upon case of Muhammad Najeeb v. The State (2009 SCMR 448) and two un-reported orders of this Court dated 25.5.2018 passed in Crl. Bail Appln. No. S-167/2008 and 03.10.2018 in Crl. Bail Appln. No. S-473 of 2018.

4. On the other hand, learned A.P.G. has opposed the bail plea of applicant while arguing that name of the applicant/accused is disclosed in the FIR with specific role for causing the firearm injuries to deceased Mst. Rukhsana and Muhammad Khan; that delay in lodging of FIR has been plausibly explained by the complainant; that the legal heirs of the deceased Muhammad Khan have not filed their affidavits; that applicant is involved in the offence which is of heinous nature and carries capital punishment i.e. death or imprisonment for life and falls within the prohibitory clause of section 497, Cr.P.C. He also submits that the offence with which the applicant is charged is against the society.

5. Heard learned counsel for the applicant, learned A.P.G appearing for the State and perused the record.

6. From the perusal of record, it contemplates that applicant is nominated in the FIR by complainant with specific role of committing murders of Mst. Rukhsana and Muhammad Khan under allegation of "Karap", on the pretext of honour killing. The version of the complainant is fully supported by the prosecution witnesses in their statements recorded under section 161, Cr.P.C. recorded on the very same day of lodging report. It further reveals that the doctor has opined that death of both the deceased had occurred due to the injuries caused by firearm. The delay of some hours in lodging FIR, has been fully explained by the complainant by stating that after recovering dead bodies of deceased their postmortem was conducted and after completing proceedings under section 174, Cr.P.C. the complainant waited for appearance of relatives of any of deceased for reporting the matter, but since none appeared therefore, complainant proceeded to lodge FIR on behalf of the State. The record further reveals that there is recovery of empties from the place of incident as well as recovery of crime weapons i.e. SBBL gun from possession of applicant with a positive report of Ballistic Expert. The offence, with which the applicant is charged, falls within prohibitory clause of section 497, Cr.P.C.

7. The province of Sindh is already badly affected by the frequent incidents of murder on false allegations of "Karap" and honor killing of innocent women; and especially in this locality, this type of heinous offences are common and it has now become a flourishing trade in the male dominating society that a woman is murdered to bargain with some man after levelling allegation of "Karo" on him and apparently instant case seems to be a result of similar trade and the persons who took law in their own hands on the pretext of such illegitimate custom, do not deserve any leniency.

8. So far contention of learned counsel that the legal heirs of deceased Mst. Rukhsana and some other witnesses have filed their affidavits before trial Court exonerating the applicant from commission of alleged offence and extending no objection to grant of bail is concerned, these affidavits are not considerable and reliable at this stage, as some of the witnesses who have filed their affidavits are not the eye-witnesses of the incident but they have only narrated the hear say evidence and some of them are the relatives of deceased Mst. Rukhsana, whereas none from the legal heirs of male deceased, namely, Muhammad Khan has filed such affidavit. Besides, these affidavits are after significant delay and filing of such affidavits is amounting to tampering with the prosecution evidence. The reliance in this regard is placed upon case reported as Naseer Ahmed v. The State (PLD 1997 SC 347), wherein Hon'ble Supreme Court of Pakistan has held as under: "We do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that; they would still be examined in the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record i.e. statements of four inured eye-witnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30 bore from the stop before the recovery of pistol from the petitioner and the positive report of Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed now a days that eye-witnesses sometimes take a somersault and give statements which are different from prosecution case and sometimes file affidavits also at the stage of hearing of bail applications of accused persons with intention to creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court, it is the mind of the Court which is to be satisfied where about-turn of some eye-witnesses in the manner stated above takes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits."

9. Same principle has been followed by this Court while deciding Crl. Bail Appln. No. 268/2007, Re; Liaquat v. The State, vide Order dated 24.7.2007, passed by his lordship Mr. Justice Mushir Alam, wherein my lord has observed that applicant Liaquat is alleged to have shot at Mst. Fatima and Latif caused hatchet injury on the allegation of her being "Kari". This tendency is growing in this part at the pressures of the other alleged so called notables, such crimes are easily forgone exonerating affidavits for such heinous crimes are not to be taken lightly as noted by the learned Court below. I do not find any reason to take exception to the view formed by the learned trial Court. Order declining bail dated 19.5.2007 is well reasoned. Application is dismissed.

10. With regard to delay in lodging FIR, it has been held by the Hon'ble Supreme Court of Pakistan in case of Haji Guloo Khan v. Gul Daraz Khan and others reported in 1995 SCMR 1765, at relevant page-1773, that no doubt, the benefit arising from the delay in lodging the FIR goes to the accused, which could also be taken into consideration along with other circumstances, in the case at the stage of deciding the bail application, delay in lodging the FIR, alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment.

11. The Hon'bie Supreme Court of Pakistan in case of Muhammad Akram Khan v. The State (PLD 2001 Supreme Court 96), while dealing with similar case involving honor killing observed that "legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution. In this case, the plea of "Ghairat" cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased."

12. In like case of commission of double-murder on pretext of "Siyahkari", reported PLD 2012 Balochistan 179 (Khadim Hussain and others v. The State), it was held that "a tentative perusal of the record shows that the applicants are involved in the commission of murder of two innocent persons on the pretext of `Siyahkari' while taking law of the land in their own hands, thus, at this stage they invoke no sympathy and do not qualify for the grant of relief by the Court. The alleged offence committed by the applicants, prima facie, falls within the purview of section 311, P.P.C., which having not been mentioned in the table, as contained in section 345(2), Cr.P.C. and is not compoundable in nature. I am of the considered view that brutal murders of innocent girls on the pretext of 'siyahkari' are mainly against the State and society and not against an individual. Moreover, the offences cannot be compounded automatically by the legal heirs, but it is always through the Court and the Court can decline the permission to compromise the offence by the legal heirs of victim(s), keeping in view the peculiar circumstances of the case."

12. In case of Amir Bux Machi v. The State (2013 YLR 2190), this Court refused bail to accused involved in similar case, while observing that "it was manifest from the record that applicant's name with specific role transpires in FIR; it was alleged that applicant with gunshot injury caused murder of his daughter deceased Mst. Khalida on the pretext of Karokari (honour killing); blood-stained earth was recovered; though eye-witnesses are police officials, yet their such status is not sufficient to consider their version with doubt, specially, there is no ill-will of said witnesses against the applicant, where they have categorically supported the version of FIR. The perusal of available material prima facie links the applicant/accused with commission of offence involving in case of capital punishment, therefore, suffice it to say that the applicant has failed to bring the case, within subsection (2) of section 497, Cr.P.C. and it is authoritative proposition of law that an accused, charged with offence of capital punishment is not entitled to be released on bail unless he succeeds in bringing his case within the meaning of further inquiry".

14. In view of above observations and the law laid down, I am of the considered view that there is sufficient material available on record which connects the applicant with commission of a heinous offence, in which two innocent lives have been taken, as such he does not seem to be entitled to concession of bail, hence instant bail application being meritless is hereby dismissed.

15. Needless to mention here that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial. MQ/M-181/Sindh Bail refused.