2010 P Cr (PLP)

SYED SHAFQAT ALI SHAH MASOOMI, J.

The appellants were convicted and sentenced by tearned 1st Additional Sessions Judge, Larkana under sections 302(b) and 311, P.P.C. vide judgment dated 16-1-2009 while disposing of an application filed under section 345(6), Cr.P.C. for fourteen years as Tazir and, to pay fine of Rs.1,00,000 each payable to the legal heirs of deceased of deceased girls and in default whereof to suffer R.I. for two years more. The facts leading to present appeal are that on 30-6-2007, complainant Muhammad Ismail lodged F.I.R. with Police Station Rasheed Wagan, alleging therein that he has five daughters, out of them three are married; one of them namely Shabnam Khatoon who is aged about 22/23 years is married with his nephew Qalandar Bux, who resides with him in the same house, his another daughter namely Mst. Sharifan Khatoon for whom Qalandar Bux was saying that they have illicit relations with. Sheral Kalhoro and Hyder Kalhoro, hence they would not be spared. On the eventful night i.e. 29-6-2007, complainant, his wife Khanzadi, daughter Sharifan, Zainab Khatoon his nephew Qalandar Bux and his wife Mst. Shabnam Khatoon after having dinner and closing outer door went to sleep at about 3-00 a.m. the complainant heard fire shots and cries of "murder murder" on which he, his wife and his daughter Zainab Khatoon woke up and saw accused Qalandar Bux with gun and Bahoro with pistol were standing in the courtyard of house, while outer door was opened and his daughters namely Mst. Sharifan and Mst. Shabnam 'were lying on the ground and were struggling for life; accused Qalandar Bux told the complainant party that they have committed their murder due to relationship with Sheral and Hyder Kalhoro by saying so they went away. The complainant then saw her both daughters who died on spot. He then went to police station and lodged F.I.R. Legal heirs of deceased girls appeared before the trial Court and stated that they have waived their right of Qisas and Diyat against the accused who are nephews of complainant. At the same time, the mother of deceased girls was weeping which shows that she has not pardoned the accused by her heart as the accused have committed the' murder of her two young daughters without rhyme or reason. Compromise application was filed by the legal heirs of deceased girls (father and mother), who stated that they have right of Qisas and Diyat; in which affidavits were filed on 27-9-2008, by Muhammad Ismail' and Mst. Khanzadi, whereas Mst. Khanzadi has also two other daughters and one son. In the compromise application both the legal heirs of deceased girls had simply said that they do not claim right of Qisas, Diyat, Arsh, Daman or compensation etc. from the accused as they have pardoned accused in the name of Almighty Allah. It is stated by the learned counsel for the appellants at. Bar that the father of deceased girls has expired during pendency of the appeal. Only one mother is alive namely, Khanzadi, who is also present in Court she prayed that her case may be remanded to the trial Court and her case should be decided on merits and she was ready to record her statement before the learned trial Court. The affidavits sworn by Muhammad Ismail and Mst. Khanzadi do not reveal whole facts of the case. Even it does not speak that the compensation has been paid to the' complainant party by the accused whatsoever. Mother of two innocent girls is still sad and gloomy. The case-law relied upon by learned trial Court in the impugned judgment is quite distinguishable to the facts of present case. In the present case the judgment was passed by the trial Court on the basis of two affidavits and no any evidence of' the complainant eye-witnesses has been recorded. In the case cited by learned trial Court, statement of mother/legal heir of deceased was recorded on oath by the Sessions Judge and thereafter compromise was effected. In the present case neither statement of complainant who is father of deceased girls, nor statements of P.Ws.. (the mother and sister) of deceased girls, who are reported to be legal heirs of the deceased were recorded by the trial Court. The crime of "Karo Kari" is increasing in the Province of Sindh and innocent girls are being killed under the worst tradition of "Karo Kari". In this worst tradition false and frivolous allegations are levelled against the victim girls and they are never been heard and the declaration against girl as "Kari" by their parents, husband and other family members is sufficient to treat them as. "Kari" and once that pronouncement comes and that girl is treated as "Kati". In this part of the country the girls are being treated as cattle just like buffaloes and goats and the girls have no right in such situation on the pattern of animals as the animals have no rights. Therefore, such girls who are being declared "Kari" are not required to be heard in those manners. In order to prevent such crimes the Courts of law should have to take judicial notice while trying such heinous crimes. For the foregoing reasons, I set aside the impugned judgment dated 16-1-2009 passed by learned 1st Additional Sessions Judge, Larkana and remand the case to trial Court with directions to record evidence of the complainant and prosecution witnesses and to dispose of the case in accordance with law. However, during hearing of this appeal it was observed that the mother and sisters of deceased girls who were present in Court were under harassment and feeling insecure. In the above circumstances, it seems that the prosecution witnesses on account of fear of their lives might not be able to give evidence against the accused; the learned trial Court is, therefore, directed to ensure conduct of trial of the case in an environment of complete freedom of mind of prosecution witnesses and to provide legal protection to the prosecution witnesses. H.B.T./Q-4/K Case remanded.