THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Appln.No.S-205of 2023

Applicant             :         Sanaullah son of Ramzan by caste Shar
        Through Mr. Shahbaz Ali Brohi, Advocate.

The State             :         Through Mr. Gulzar Ahmed Malano, Addl.P.G,

Date of hearing:  10.07.2023

Date of Order:     10.07.2023

O R D E R

KHADIM HUSSAIN SOOMRO, J.-Through instant criminal bail application filed in terms of Section 497 Cr.PC,the applicant has assailed an order dated 18.03.2023, in FIR bearing Crime No.10/2022,offenceU/S.302,311,364,324,353,148,149PPC registered with P.S Naperkot, passed by learned 1^st Additional Sessions Judge/MCTC, Shikarpur, whereby the bail plea sought for by him, was turned down. 

2.      The concise facts of the prosecution case as unfolded in the FIR lodged on 15.02.2022, at about 1300 hours, by ASI Abdul Wahab Babar, are that on 14.02.2022, he, along with his subordinate staff, namely PC Abdul Wahid, PC Saifuddin and PC Jahangir left Police Station under Roznamcha entry No.27-2210, in government vehicle, duly dressed and armed with official ammunitions, for patrolling. When at about 2340 hours, they reached adjacent to 05 miles, they received spy information that accused Sanaullah Shar after declaring his wife Mst. Zameeran Shar as “Kari”, with one Ghulam Hyder alias Shafique Shar and taking them together with other accused along other banks of Guddu Barrage, are proceeding towards a jungle with the intention to kill them. On receipt of such information, they proceeded to the pointed place and at Guddu Barrage, witnesses, namely Abdul Razzaq, son of Muhammad Murad and Qaim, son of Moula Bux Shar, met them who also disclosed the same facts and taking them in their official vehicle, they all proceeded for the pointed place. On 15.02.2023, at about 0030 hours, when they reached the pointed place and saw on the light of police mobile and searchlights accused, namely Sanaullah, son of Ramzan, 2). Allah Bux, son of Rukkan, armed with guns; 3). Paryal, son of Ramzan, armed with a Kalashnikov, all by caste Shar and three unknown culprits armed with Kalashnikovs, who, if seen again, will be identified, all were forcibly dragging Ghulam Hyder alias Shafique Shar, aged about 18/19 years and Mst. Zameeran Shar, aged about 20/21 years, towards a narrow jungle and on seeing the lights, Ghulam Hyder alias Shafiq raised cries,  whereupon accused Paryal Shar fired from his K.K at him with the intention to commit his murder, which hit him and he fell down, and on seeing the police closure to them, the accused started firing at them with the intention to commit their murder, which was also retaliated by the police party in their defence. Thereafter, the above-named accused took Ghulam Hyder alias Shafiq from his legs and abducted Mst. Zameeran, with the intention to commit her murder, took them towards the jungle, and the unknown culprits, after firing at the police, also fled away towards the jungle. Such an encounter lasted for about 30 minutes. The police party, together with private witnesses, then searched in the jungle with the help of searchlights. On the following morning, at about 08.00 a.m, they secured the dead body of Ghulam Hyder alias Shafique from the narrow jungle and by citing Abdul Razzaq and Qaim Shar as mashirs, they saw the dead body. They found a firearm injury hole on his stomach which was crossed through the hip with bleeding, and he was dead. They did not recover Mst. Zameeran from the clutches of the accused. They then shifted the dead body of deceased Ghulam Hyder alias Shafiq towards RHC Khanpur; after preparation of necessary documents and getting his postmortem conducted, his dead body was then delivered to his legal heirs. Later, the complainant came to the police station and reported the incident to the police to the above effect. Subsequently, on 15.02.2023, at about 2030 hours, the dead body of deceased Mst. Zameeran having strangulation marks of rope on her neck was recovered by the police from the jungle, under preparation of a separate memo.

3.      Per the applicant’s counsel, the applicant is innocent and has falsely been implicated in this case by the police on account of enmity and that Murad and Mst. Sadori Khatoon (father and mother of the deceased Ghulam Hyder@ Shafiq) and Mst. Berai Khatoon (mother of deceased Mst. Zameeran), by filing their respective affidavits, have raised no objections to grant of bail to the applicant; therefore, he is entitled to concession of bail on the point of further inquiry. The counsel further argued that the witnesses, namely Abdul Razaque and Muhammad Murad, have also sworn an affidavit exonerating the accused applicant.

4.      Conversely, learned Addl.P.G for the State vehemently opposed the grants of the bail on the ground that the name of the applicant is specifically mentioned in the FIR and the witnesses have sworn an affidavit just to destroy the case of the prosecution, and he lastly prayed for the dismissal of the application.

5.      Heard arguments of learned counsel for the parties and have minutely perused the record.

6.      The tentative appraisal of the material brought on record entails that the present case was registered on behalf of the State. No doubt, the role of firing at the deceased is attributed to co-accused Paryal, but apart from the vicarious liability on the part of the present applicant, it is also very much evident that he, after declaring his wife Mst. Zameeran as “Kari” with Ghulam Hyder alias Shafiq (deceased), forcibly dragged them towards the jungle, and then they were done to death; as such, they not only shared the common intention and common object in the commission of the incident but there is the active participation of the applicant. Furthermore, the ocular account is fully consistent with medical evidence, which is also substantiated by the recovery of an unlicensed DBBL Gun of 12 bores with six live cartridges of the same bore from him; it was said to be used by him while committing murder of the deceased for which a separate case under Sindh Arms Act has also been registered against him. In this case, two innocents have been deprived of their lives over the pretext of honour killing, which is affecting society at large, and such heinous crime is generally spreading like wild wind in every nook and corner of Pakistan and specifically in the province of Sindh. Statistics compiled by International Organizations show that one thousand women are murdered annually in this region, which indicates overwhelmingly male domination. In 2012 alone, the Human Rights Commission of Pakistan reported that 900 women had been killed in the name of honour; this offence is being increased in our society by leaps and bonds.

7.    The Quran words of Allah provide a complete code to human life from cradle to grave. The Quran says "affectionate behaviour for dwelling the couple in tranquility" (Quran 30:21).The Holy Qur'an in Sura XXIV in Sura (NUUR) Verses 4 says: "And those who launch a charge against chaste women and produce not four witnesses, (To support their allegation),--- Flog them with eight stripes; and reject their evidence even after: for such men are wicked transgressors;---".

8.     Prophet Muhammad (peace be upon him) teaches, mercy and compassion, the Prophet Muhammad (PBUH) says that "fear God and respect woman" and "the best among you is the one who has best attitude to the women". The Prophet Muhammad (PBUH) stated that "whosoever has a daughter and does not bury her alive, does not insult her, does not favour his son over her, Allah will enter him into Paradise". I would like to cite another beautiful Hadith 837 Book 48 (Sahih Bukhari),narrated by Ibn Abbas reproduce as under:-

": Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma. The Prophet said, "Produce a proof or else you would get the legal punishment (by being lashed) on your back" Hilal Said, "O Allah's Apostle! If any one of us saw another man over his wife, would he go to search for a proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back ".

Despite of clear cut directions from Allah and His Rasool, still the heinous crime of Karo and Kari is being carried out in our country which is liable to be dealt with iron hands, just to root out it from our society.

9  The apex court of our country  has observed that taking a life in the name of "Ghairat" is against the law and immoral, and no one should be given the authority to do so. So-called honour killing is just murder (Qatl-i-Amd), which is forbidden by both the law, religious teachings as well as supreme law of the land. In the case of Muhammad Akram  Khan v. The State", PLD 2001 SC 96, and the apex court observed as under:- 

"Legally and morally speaking, no body has any right nor can any body 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."

10.    Reverting to the affidavits of Murad, Mst. Sadori Khatoon (father and mother of deceased Ghulam Hyder @ Shafiq) and Mst. Berai Khatoon (mother of deceased Mst. Zameeran), no doubt, they have sworn their affidavits before this Court, raising no objections to grant bail to the applicant, but the true test of the truthfulness of their statements can only be appreciated when they appeared before the witness box and shall subject to the cross-examination. It is also an astonishing fact that the above-cited legal heirs of the deceased admitted the loss of two previous lives and that they had been killed brutally; none from either side of the legal heirs of the deceased came forward to initiate criminal proceedings against the culprits. On the contrary, they have sworn affidavits of no objection to bail. Moreover, the affidavits of other witnesses who have exonerated the applicant of the charges against him and raised no objections to his release on bail have been submitted before this Court; it is not yet possible to assess their credibility or weight because some of the witnesses who have done so were not present at the time of the alleged crime. At this juncture, filing affidavits is tantamount to damaging the prosecution evidence; therefore, the same is worth no consideration; let the witnesses appear before the learned trial court and undergo the processes of cross-examinations.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."

11.    In view of facts, reasons and discussions given above, it is concluded safely that the learned counsel for the applicant has failed to make out a case for grant of bail. Resultantly, the instant bail application is dismissed accordingly. The observation recorded hereinabove, being tentative in nature would not prejudice the case of either party at trial.

                                  JUDGE