IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No. S-  485 of 2023.

Applicant:                 Nasrullah Bakhrani, through Mr. Saeed Ahmed Bijarani, Advocate.

Respondent:              The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing:        27.11.2023.

Date of Order:           27.11.2023.

Date of reasons:       05.12.2023.

ORDER

Muhammad Saleem Jessar, J- Applicant Nasrullah Bakhrani is seeking pre-arrest bail in Crime No. 26 of 2023 registered at P.S Tangwani (District Kashmore @ Kandhkot) under Sections 302, 311, 120-B and 34 P.P.C.

            The case of prosecution, as depicted from para 2 of the impugned order, reads as under:

            “Briefly stated facts of prosecution case as per F.I.R lodged by complainant ASI Nindao Khan Gujrani on behalf of the State are that on 04.5.2023 he along with other staff was on patrolling and when they reached near curve Muhbat Noonari, Deh Hajano, Taluka Tangwani, in the meantime at about 1600  hours the complainant received spy information that applicant/ accused Nasrullah Bakhrani along with his brothers, uncle and cousins, is committing murder of his wife Mst. Haseena Khatoon aged about 25/26 years under the allegation of “Karap” with an unknown person. The complainant party then proceed  and arrived at pointed place i.e. the house of accused Nasrullah in village Rehmatullah Bakhrani at 1630 hours and in the meanwhile they saw and identified accused Khadim Hussain son of Imam Bux, Ghulam Hussain alias Ghulam Rasool alias Gul, Nasrullah both son of Rehmat, Ahsan son of Khadim Hussain, Yasin son of Kajlo all by caste Bakhrani, resident of village Rehmatullah Bakhrani, Taluka Tangwani being armed with T.T pistols including two unknown  accused persons armed with guns, who  were holding a woman at the courtyard of  the house. It is further alleged that the woman was crying not to kill; in the meantime the complainant party heard three fire shots and further saw that the accused persons started to run towards western side wall. The complainant party chased accused persons but they made their escape good taking advantage of banks of watercourse. It is further alleged in the F.I.R that complainant/ police party returned to place of incidence where found the dead body of a woman was available on a cot. On  query, the neighborhood’s women disclosed to the complainant that it is dead body of Mst. Haseena Khatoon wife of Nasrullah Bakhrani, as such, the complainant with the help of available women, inspected the dead body of deceased lady, prepared such mashirnama, inquest report and Danistnama, engaging H.C Khadim Hussain and PC Abdul Nabi for getting conducted its postmortem. However, the complainant along with remaining staff members returned to Police station, where he waited for legal heirs of deceased lady Mst. Haseena Khatoon, for registration of F.I.R but no one appeared, therefore, ASI Nindao Khan Gujrani registered F.I.R on behalf of State.”

            Learned counsel for applicant mainly contended that this is unseen and un-witnessed incident, as none from complainant/ police party saw any of the accused while making fire shots at deceased, but it is mentioned in the F.I.R that they only heard firearm shots and that no any specific role has been assigned to the applicant. Learned counsel further contended that the deceased is alleged to have been murdered under allegation of “Siyah-Kari”, but no any person has been named in F.I.R, against whom allegation of “Karap” has been leveled, as such according to learned counsel ingredients of Section 311 P.P.C do not attract in the instant case. Per learned counsel co-accused Ghulam Hussain was found innocent during course of investigation and he was let off by the police. Learned counsel further contended that legal heirs of deceased i.e. father, mother and brohter have filed their affidavits exonerating the applicant from commission of alleged offence.

            Learned D.P.G. vehemently opposed grant of bail to the applicant on the grounds that the applicant has been nominated in F.I.R and that the affidavits filed by legal heirs of deceased are of no legal effect, as none of them is witnesses in the case, as such they have no any nexus with the case. He further pointed out that section 311, P.P.C., has been inserted by the police in the F.I.R, and said section provides punishment as Ta'zir for the offender and keeping in view the facts and circumstances the principle of “Fasad-file-Arz” is attracted, as the murder of deceased was on the pretext of “siyakari”. He further contended that it is a broad daylight murder of a young woman caused by her husband and in-laws, hence the applicant (who is husband of deceased) is not entitled to the concession of pre arrest bail. Learned D.P.G lastly added that as the offence is of a heinous nature; punishable with Death and Life Imprisonment, therefore, the applicant is not entitled to concession of extra ordinary concession of pre arrest bail.

            Heard learned counsel for respective parties and perused the material available on the record.

            It appears from the perusal of the material placed on record that deceased Mst. Haseena Khatoon, who was the wife of the applicant, was murdered in the house of her husband, where the applicant/ accused also resides and prime-facie allegations against him are that he along with his brothers, uncle and cousins killed her on the pretext of "Siyah-Kari”. The specific role of causing the death of Mst. Haseena Khatoon has been ascribed to the applicant/ accused and other co-accused. The ocular as well as medical and circumstantial evidence available on the record, prima-facie connect the applicant/ accused in the commission of the offense. The factum of filing of affidavits by the father, mother and brother of  deceased Mst. Haseena Khatoon in favor of the applicant/ accused, speak about the contumacious conduct of the applicant/ accused, who has been found in a police investigation as an actual culprit of the murder of his wife, and he is is making every effort to save his skin from the clutches of law. The affidavits filed by the father, mother and brohter of the deceased exonerating the applicant from commission of alleged offence and extending no objection to grant of bail are concerned, these affidavits are not considerable and reliable at this stage, as none of these persons is witnesses of the case/ offence. Moreover, this is an application for pre-arrest bail which, inter-alia would be considered if there is some malafide and ulterior motive on the part of the complainant/ prosecution to falsely implicate the applicant. No such material is available on record to infer that the applicant has been falsely implicated.

            The Hon’ble 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 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 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 preview of section 311, P.P.C., which having not been mentioned in the table, as contained in section 345 (2) of the 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 ‘siyahkri’ 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.”

            In view of the above facts and circumstances and the dicta referred to above, I am of the view that the applicant is not entitled to extraordinary concession of pre-arrest bail. Accordingly, this bail application was dismissed by re-calling interim pre arrest bail already granted to applicant vide short order dated 27.11.2023 and these are the reasons for the short order. However, it is made clear that the observations made hereinabove are tentative in nature and shall not prejudice the case of either party in the trial.

                                                       Judge

Ansari