IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 738 of 2023.
Applicant: Imdad Jalbani, through Mr. Sher Ali Chandio, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 29.01.2024.
Date of Order: 29.01.2024.
ORDER
Muhammad Saleem Jessar, J- Applicant Imdad Jalbani son of Ranjho Khan is seeking post-arrest bail in Crime No. 208 of 2023 registered at P.S Mehar, (District Dadu) under Sections 302, 311, 201, 34 P.P.C.
2. The facts of case of prosecution, as depicted from para 2 of the impugned order, read as under:
“Brief facts of the prosecution case are that on 18.6.2023 at 1100 hours, complainant ASI Syed Ali Akbar Shah lodged F.I.R on behalf of the State, wherein alleges therein that on 17.6.2023, he alongwith his subordinates staff left P.S for patrolling, when reached at Garhi Road Betto bypass, received information through general public that accused Imdad and Dildar along with other relatives have committed murder of Mst. Samina aged 20/21 years on pretext as “kari” with one Shar by caste and have hidden the dead body (aims to cause disappearance of evidence) the dead body. On receipt of such information they proceeded towards village Bago Jalbani and searched for dead body of deceased and found dead body in land wrapped in quilt near village Bago Jalbani. Such information was given to high ups and ambulance was called from Taluka Hospital Mehar. They shifted dead body to Taluka Hospital Mehar for conducting postmortem. After postmortem dead body was handed over to her mother Mst. Begum; they came to Police station Mehar and waited for relatives of the deceased but they did not come forward for registration of F.I.R, hence he register F.I.R on behalf of the State against accused Imdad, Dildar, who committed murder of Mst. Samina by way of strangulation, while leveling allegation of Kari.”
3. 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 committing murder of deceased, but it is mentioned in the F.I.R that they only came to know that the accused persons have committed murder of a lady. 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. Learned counsel further contended that legal heirs of the deceased i.e. father and mother have filed their affidavits exonerating the applicant from commission of alleged offence.
4. 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 relative i.e. applicant, hence he is not entitled to the concession of 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 bail.
5. Heard learned counsel for respective parties and perused the material available on the record.
6. It appears from the perusal of the material placed on record that deceased Mst. Samina, was murdered on the pretext of "Siyah-Kari”. The applicant and his co-accused have been leveled allegation of murdering Mst. Samina by strangulating her and during coruse of investigation the police have recovered a rope (crime weapon) from possession of applicant. The ocular as well as medical and circumstantial evidence available on the record, prima-facie connect the applicant with the commission of the offense. Moreover, the offense, with which the applicant stood challaned, falls within ambit of prohibitory clause of Section 297 Cr.P.C.
7. The factum of filing of affidavits by the father and mother of deceased Mst. Samina in favor of the applicant speak about the contumacious conduct of the applicant, who has been found in a police investigation as an actual culprit of the murder of an innocent lady on pretext of “Siyah-kari”, and he is making every effort to save his skin from the clutches of law. The affidavits filed by the father and mother 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 post-arrest bail, which is to be decided by considering the material tentatively and deeper appreciation cannot be made.
8. 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 of Islamic Republic of Pakistan, 1973.
9. 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.”
10. 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 discretionary relief of bail. Accordingly, this bail application is hereby dismissed. 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