2004 PLP 424 (MLD)

3. Soon after registration of case, police set in investigation work, during course of which petitioners could be arrested on 10‑4‑2002. They preferred their joint post‑arrest bail application before learned Sessions Judge, Jhang, who entrusted the same to a learned Additional Sessions Judge for adjudication purposes. The said learned Judge dismissed their application through order dated 11‑4‑2003 on the basis of a variety of reasons for refusal thereof. Hence, this application.

4. During pendency of this application, a report was called from the Trial Court as to when trial is likely to be concluded. The report has been received. Contents thereof reveal that Challan No.97 of 2002 for trial of the accused was entrusted by the learned Sessions Judge to the said Court on 30‑8‑2002. On 23‑6‑2002, Ibad Hussain, brother of Tassawar Abbas deceased of this case, gave his cross‑version, wherein he named petitioners, alongwith Waqar Ahmad, Muhammad Ijaz complainant (since dead). Mst. Azra Bibi, Muhammad Aslam, Azhar Ali, Kazim and Shaukat, as persons responsible for the murder incident. Police grilled all concerned during investigation. In view of opinion of a panel of Investigating Officers, Challan No.237 of 2002 was submitted against the afore‑mentioned persons for the alleged mactation of Tassawar Abbas and Mst. Shahida Parveen without commenting upon the previous challan, so there are two, challans in the field now about one and the same occurrence. Trial proceedings have been commenced in Challan No.237 of 2002 and accused persons, namely, Waqar Ahmad, Saleem alias Phonni, Asghar Ali, Muhammad Aslam, Azhar Ali, Kazim and Shaukat have entered appearance. They were charged‑sheeted on 21‑2‑2003, whereas Mst. Azra Bibi due to her non‑availability was declared as proclaimed offender and name of Muhammad Ijaz stood deleted because of his death. On 27‑3‑2003, Ibad Hussain, brother of Tassawar Abbas deceased instituted a private complaint and after his examination, the issue was referred to Magistrate/Civil Judge 1st class for holding of an inquiry into the same. The said Magistrate had submitted his report on 24‑4‑2003. All the accused named therein have been ordered to be summoned to face their trial in accordance with law. Mst. Azra is a proclaimed offender and bailable warrants to procure her attendance have been issued. Sixteen witnesses were to be examined in the complaint case and all the witnesses cited in the State ease have also to be summoned as Court witnesses, which shows that it would be a pretty lengthy time consuming exercise.

5. Learned counsel for the petitioners pressed into service following points for due consideration:‑‑ (i) That there was a colossal delay of about one year in bringing complaint against the accused. (ii) That vaginal swabs of Mst. Shahida Parveen were found stained with semen, which reflects that Mst. Shahida Parveen had undergone sexual intercourse recently. (iii) That the petitioners had no enmity to kill Tassawar Abbas. (iv) That both the deceased having been found in an objectionable position on the same cot were killed out of grave and sudden provocation and extreme sense of family honour. He ends his able arguments with the submissions that case of the petitioners fall under subsection (2) of section 497, Cr.P.C. being that of further inquiry. Reliance has been placed on case, Muhammad Rafi v. The State (1992 PCr.LJ 2399).

6. Conversely, learned counsel for the State assisted by learned counsel for the complainant threw light upon the event which culminated into death of two persons, namely, Tassawar Abbas and Mst. Shahida Parveen in the following manner:‑‑ (i) That kith and kin of Tassawar Abbas deceased also hail from the same locality, but none was made a complainant in the case. (ii) That Tassawar Abbas had been called to the house of Muhammad Ijaz through Mst. Azra Bibi, who is still at large. (iii) That medical evidence is supportive of the complaint version. They both tooth and nail oppose grant of bail to the petitioners.

7. Both the sides have been extensively heard Admittedly, Muhammad Ijaz is maternal uncle of Mst. Shahida Parveen. The event had happened on 4‑4‑2002 at about 10/11.00 p.m., but Ibad Hussain, brother of Tassawar Abbas deceased preferred his application (Annexure 'E') before A.S.P. Jhang, in which names of the accused persons were never furnished. Thereafter, Writ Petition No.6066 of 2002 was filed in this Court, in which names of the petitions alongwith Waqar Ahmad, Muhammad Ijaz, Mst. Azra and Muhammad Aslam were given, as accused involved in the occurrence. After about one year i.e. on 27‑3‑2003, Ibad Hussain, brother of Tassawar Abbas deceased, instituted a private complaint against above‑said six persons including Kazim and Shaukat. This throws a cloud of doubt upon genuineness of the prosecution version. Excessive and unwarranted delay of one year in filing of this complaint without adequate explanation is also sufficient to presume that time was consumed in deliberations, consultations, and conference with all concerned to build up a befitting story to involve as many innocent persons as possible. This activity on the part of the complainant side cannot be considered noble. Law aims at discouraging pursuits of evil doing and promoting virtues. The factum of delay in bringing the complaint against the accused has to be considered by the trial Court on merits. Learned counsel for the complainant has pointed out that the trial Court has taken cognizance of the matter, but no charge has been framed so far. Charge is likely to be frames on 1‑10‑2003. Dead-bodies were found in the dwelling house of Muhammad Ijaz‑complainant, which shows that Tassawar Abbas, who was carrying on sexual connection with Mst. Shahida Parveen and was badgered in the past by so many people, paid an ardent nocturnal visit to the house of complainant, where Mst. Shahida Parveen was available. Everyone in the town was conscious of the sexual connection in‑between the two. Waqar Ahmad is husband of Mst. Shahida Parveen. Others are also her relatives. Who does not know as to what would be their state of mind on seeing the two lying on one and the same cot during night hours. After all it was not a platonic love and people who indulge into such sort of activities usually meet their death. The emotions of the petitioners must have boiled to the maximum extent generating tons of provocation. It cannot be designated as a willed attack. Everything happened spontaneously on having found the deceased persons in a compromising position. Three essential ingredients of grave and sudden provocation are by all means available, (i) the very obnoxious act of provocation (ii) the loss of self‑control by becoming full of bile, and (iii) spontaneous reaction to the situation reasonably proportionate to the provocation. If this plea is found cent per cent correct by the trial Court after recording of material evidence, then quantum of punishment to be inflicted shall have to be kept in view. In such like cases, meagre punishments are awarded. Prosecution case taken to its extreme not entailing maximum punishment, the case would automatically go out of the prohibition contained in section 497, Cr.P.C. and the Court would derive the jurisdiction to exercise discretion in granting or refusal bail to the accused. Opinion of the Medical Officers in respect of duration of time of death is not substantiated by any data. Whenever opinions of expert witnesses are not supported by sound reasons, no reliance can be places on the same. Case of the petitioners squarely falls within the ambit of further inquiry.

8. Furthermore, occurrence of the alleged incident involves two versions. Which version is correct or otherwise is a question to be determined by the trial. Court after recording of some material evidence. Since Muhammad Ijaz‑complainant has passed away, so the prosecution has been deprived of potential evidence. Even on this score, case of the petitioner calls for a further probe.

9. Mst. Azra Bibi was found innocent by the police, which fact also strikes at the very root of the case. The petitioners are behind the bars for the last about one and a half years. Trial is likely to take pretty long time because of long list of prosecution witnesses and Court witnesses to be exhausted by the trial Court.

10. For all these reasons, I accept this application and direct that the petitioners be released from custody subject to their furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) each with two sureties each in the like amount to the satisfaction of trial Court. H.B.T./S‑799/L Bail granted.