' ROOH-UL-AMIN KHAN, J.---The accused/petitioners herein., after refusal of concession of bail by the Courts below, in case F.I.R. No,383 dated 16-10-2012 registered at Police Station Gandigar, District Dir Upper, under sections 310-A/147/149, P.P.C. Seek their release on bail as such.
2. As per F.I.R. The accused/petitioners are charged for giving sister of the complainant Mst. Sardari Gul as `swa ra' to one Mukhtiar. As such present case was registered vide F.I.R. Referred above.
3. Perusal of the record would reveal that the complainant Rahim Shah had submitted an application/complaint dated 28-9-2012 before the Hon'ble Chief Justice of Peshawar High. Court, Peshawar, which was referred to D.I.G. Malakand Division for necessary action and report. In compliance of above said order of the Hon'ble Chief Justice of this Court, Shaukat Ali Khan, S.H.O.
Along with police contingent visited village Gorkohi, .Tehsil and District, Dir Upper, where the complainant in presence of Mst. Sardari Gul reported the matter, that about three years ago, one Mst. Khan Bibi, wife of Hakim Khan was ousted by her in-laws (`Susrar) and to the house of her parents on allegation of illicit relation with the complainant. After some time the elders of the locality constituted a `firga' for settlement of the animosity between complainant and in-laws of Mst. Khan Bibi, wherein the sister of complainant namely Mst. Sardari Gul was handed over to one Mukhtiar son of Taur Khan as "Swara", and Rukhsati was effected after 40/41-days. Subsequently.
After three months, the complainant came to know that Mst. Khan Bibi had been killed by his in- laws at "Lund Khwar", District Mardan. He charged all the Virga' members for giving her sister Mst.
Sardari Gul to Mukhtiar as "Swara". The report of the complainant was incorporated into F.I.R.
Mentioned in the preceding Para. During investigation, the petitioner Muhammad Sultan and his son Rahimuddin were found involved in the commission of offence and they were also arrayed as accused.
4. Learned counsel for the petitioners contended that F.I.R. Has been lodged within an unexplainable delay of two years and three months that the petitioners are not nominated by the complainant or the victim Mst. Sardari Gul, in the F.I.R. And they are innocent and have been involved in the case on mere suspicion. He also argued that the complainant,had submitted an affidavit before the lower Courts, that he has no objection it the petitioners are released on bail.
5. Learned counsel for the complainant straightaway conceded and stated at the bar that under the instruction of his client/complainant, he has no objection if the petitioners are released on bail; the learned A.A.G. Resisted the bail application in lukewarm manner.
6. Perusal of the record would reveal that the complainant was suspected for having illicit relation with Mst. Khan Bibi and to this effect a Virga' was convened, wherein the elders of the locality gave the hand of Mst. Sardari Gul to one Mukhtiar as `sivara ', on the pretext of prevailing custom of the area. The record further reveals, that during proceedings of Virga' the petitioners, being father and brothers respectively, sacrificed their daughter and sister in lieu of threat to the life of the complainant. At the time of above mentioned decision of the Virga', section 310-A had already been inserted in the Pakistan Penal Code vide Criminal Amendment Act 2004 (Act I, 2005) and in presence of the sections 310 and 310-A a practice of such tradition was mere derogation and disobedience of law. Handing over a lady,, without her consent, in such a humiliating manner is not only against the fundamental right and liberty of human beings, enshrined in the Constitution of Islamic Republic of Pakistan 1973, but also against the importance and value of human beings given by the Allah Almighty to the most imminent of created things; mankind (Ashraful Makhluqat).
7. To eradicate this self-imposed menace from the society the government has amended Pakistan Penal Code (P.P.C.) by inserting the amended section of 310-A, P.P.C., vide Criminal Law Third Amendment Act 2011 which is reproduced as under:-- "310-A. Punishment for giving a female in marriage or otherwise in 'badict-e-sulk', wanni or Swara: "Whoever gives a female in marriage or otherwise compels her to enter into marriage, `badla-e- sulh', wanni, or swa ra or any other custom or practice under any name, in consideration of setting a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees." (underline supplied).
8. Since the petitioners have fully participated in the `Jirga' and were Incharge of Mst. Sardari Gul being father and brothers, therefore, prima facie, case exist against them, falling under prohibitory clause of section 497, Cr.P.C., thus are not entitled to the concession of bail.
' In the wake of above discussion, this bail application is dismissed as such.
Bail refused 2013 P Cr, L J 953 [Lahore] Before Mehmood Maqbool Bajwa, J Rana MUHAMMAD AHSAN RASOOL---Petitioner versus.
The STATE and others---Respondents Criminal Revisions Nos.321 and 336 of 2011, decided on 16th July, 2012.
(a) Illegal Dispossession Act (XI of 2005)--- ----S. 3---Delay in conclusion of complaint due to non-appearance of accused---Non-bailable warrants of arrest, issuing of-Scope-- Complainant (respondent) filed complaint against accused (petitioner) under S.3 of Illegal Dispossession Act, 2005---Court issued process in the name of accused to appear before the Court---Accused put his appearance before the Court. Submitted surety bonds and copies were delivered to him, but later on he opted to remain absent---Court issued non-bailable warrant of arrest against accused-Validity-Accused did put his appearance before the Court but later on opted to remain absent with mala fide intention in order to delay conclusion of complaint-Trial. Court made efforts to procure attendance of accused, without any success, which left the Court with no option but to issue non-bailable warrant of arrest against the accused---No exception could be taken to the such action of the Trial Court--- Revision petition was decided accordingly. [P. 955] A, B & C
(b) Illegal Dispossession Act (XI of 2005)- --Ss. 3 & 7---Possession of property given as an interim relief "during the trial"---Scope-Complaint was filed against accused and co-accused (petitioners) under S.3 of Illegal Dispossession Act, 2005-- Complainant filed an application before Trial Court for possession of property in question, which was allowed and Court issued directions to accused and co-accused to surrender possession of property in favour of complainant as an interim measure---Validity---Grant of interim relief within the meaning of S. 7(1) of Illegal Dispossession Act, 2005 was subject to the condition, "during. The trial"---Although copies had been delivered to accused and co-accused in the present case but charge had not been framed against them, therefore, question of commencement of trial did not arise---Interim relief granted by Trial Court was not legally sustainable and as such it was set aside---Revision petition was decided accordingly. Jp. 956] D & E Ashiq Hussain and another v. Athar Sher and 2 others 2008 PCr.LJ 719; Edward Henry Louis v. Dr. Muhammad Safdar 2009 PCr.LJ 1359 and Rabart alias D.C. v. Additional Sessions Judge, Mian Channu, District Khanewal and 7 others PLD 2011 Lah. 34 rel. Muhammad Aslam Khan Dhakkar for Petitioner.
Faisal Mehmood Tangwani and Rashid Rehman Khan for Respondent No,2.
Muhammad Amjad Rafique, Deputy Prosecutor-General for the State.
' MEHMOOD MAQBOOL BAJWA, J.-- This order shall also dispose of Criminal Revision No,321 of 2011 titled "RANA MUHAMMAD AHSAN RASOOL v. THE STATE ETC." questioning of order dated 27-7-2011 besides assailing the order dated 19-7-2011 recorded by learned Additional Sessions Judge, Shujabad, whereby vide order dated 19th of July 2011, due to non-appearance of the petitioner (Abdul Majeed), direction was issued to procure his attendance by coercive measures. Order dated 27-7-2011 is subject to challenge in both the revision petitions, whereby the learned trial Court through said order issued direction to the petitioners as well as co-accused to hand-over possession of the property subject matter of the complaint filed under the provision of The Illegal Dispossession Act 200.5 by way of interim measures
2. Necessary facts resulting in filing of both the revision petitions are that respondent No,2 in both the revision petitions filed a complaint under the provision of section 3 of The Illegal Dispossession Act 2005 not only against the petitioners (in both the revision petitions) but also against the other persons with the allegation of taking possession of the property owned by the said respondent (complainant) by adopting means and measures not warranted by law. After recording cursory evidence, learned Additional Sessions Judge Shujabad while evaluating the evidence found sufficient grounds, for proceedings and as such issued process in the name of the petitioners as well as co-accused to appear before the Court. It is the case of the respondent/complainant that the petitioners as well as co-accused put their appearance before the learned trial Court, submitted surety bonds and copies were delivered to them, but later on they opted to remain absent in order to delay the conclusion of trial. Since the attendance of petitioners could not be procured despite issuance of process time and again, therefore, learned trial. Court issued non- bailable warrant of arrest on 19-7-2011 against Abdul Majeed (Petitioner in Criminal Revision No,336 of 2011) which order has been assailed.
3. On the application made by respondent/complainant, the learned trial Court through order dated 27-7-2011 also issued direction to the petitioners as well as co-accused to surrender the possession in favour of the respondent/complainant as interim measures.
4. Learned counsel for the petitioners while assailing the vires of order dated 19th of July, 2011 maintained that issuance of non-bailable warrant arrest against the petitioner (Abdul Majeed) is legally, not sustainable and as such same is to be set aside.
5. On the other hand, learned counsel for the complainant (respondent No,2) maintained that the petitioner after showing initial appearance intentionally absented himself and despite adopting different measures remained absent and as such order regarding issuance of non-bailable warrant of arrest cannot be questioned.
6. It is not disputed that the petitioner (Abdul Majeed) put his appearance before the Court, but later on opted to remain absent for one or the other reason. Perusal of different interim orders clearly suggests that learned trial Court made efforts to procure the attendance of the petitioner but without any success, finding no option but to issue non-bailable warrant of arrest against the petitioner. Though, it was maintained at the instance of petitioner that order regarding issuance of non-bailable warrant of arrest is legally not sustainable but admittedly alleged illegality or irregularity has not been pointed out calling for interference by this Court. If the petitioner being an accused opted to remain absent and that too with mala fide intention in order to delay the conclusion of complaint, which admittedly has to be decided within the period fixed by the statutes itself, then there was no option with the learned trial Court but to issue non-bailable warrant of arrest through impugned order in order to procure attendance of the petitioner who by his conduct hampered the proceedings.
In view of the above state of facts and law, no exception cane be taken to the order dated 19-7-2011 for issuance of non-bailable warrant of arrest against the petitioner (Abdul Majeed).
7. On the application made by the respondent No,2 (complainant), the learned trial Court passed an order under section 7 of The Illegal Dispossession Act, 2005 (Act. XI of 2005), (Hereinafter called as an Act) granting interim relief to the complainant by issuance of direction to the petitioners as well as co-accused to hand over possession of property to respondent No,2 (being owner/occupier) subject-matter of the complaint.
8. Referring to the expression "during the trial" used in section 7 of the Act and seeking help from the dictum laid down in "ASHIQ HUSSAIN and another v. ATHAR SHER and 2 others" (2008 PCr.LJ 719), "EDWARD HENRY LOUIS v. Dr. MUHAMMAD SAFDAR" (2009 PCr.LJ 1359) and RABART alias D.C. v.
ADDITIONAL SESSIONS JUDGE, MIAN CHANNU , DISTRICT KHANEWAL and 7 others"(PLD 2011 Lahore 340), the learned counsel for the petitioners maintained that since trial was not commenced, therefore, the learned trial Court was not competent to pass any order granting interim relief requiring .The petitioners and co-accused to surrender possession in favour of the respondent/complainant.
' On the other hand, learned counsel for the respondent No,2, though, was unable to controvert the legal proposition, but made an attempt to justify the same by referring to the certain interim orders contending that both the petitioners as well as co-accused made it impossible for the learned trial Court to proceed with the trial and as such there was no option with the said Court but to pass the impugned order. Continuing his arguments, the learned counsel for the complainant maintained that the petitioners as well as co-accused though put their appearance, but later on absented themselves after receipt of the copies of documents as required under section 265-C of The Code of Criminal Procedure, 1898 and as such in the peculiar circumstances, the order passed granting interim relief to the complainant is justified.
9. Use of word "During the trial" in section 7(1) of The Illegal Dispossession Act, 2005 (Act XI of 2005) is of significance and importance. There is little cavil with the well-settled proposition of law that trial would commence when accused persons after summoning have been formally charged.
Though, copies were delivered to the petitioners, but admittedly the charge was not framed for any reason and as such question of commencement of trial does not arise at all. Grant of interim relief within the meaning of section 7(1) of the Act is subject to the condition "of during the trial" which admittedly did not commence and as such the order dated 27-7-2011 granting relief under section 7(1) of the Act XI of 2005 is legally not sustainable.
' Rule of law expounded in the Reports cited at bar by the learned counsel for the petitioners substantiate the case of the petitioners to the extent.
10. In view of the matter, the order dated 27-7-2011 is legally not sustainable and was made without lawful authority resulting in setting aside the same and acceptance of both the revision petitions to this extent.
11. Since the order dated 27-7-2011 has oeen set aside on legal premises, therefore, the application made by the respondent/complainant under section 7 of The Illegal Dispossession Act shall be deemed to be pending before the learned Additional Sessions Judge Shujabad, which shall be taken-up after commencement of trial.
12. The learned counsel for the complainant/respondent No,2 maintained that the complaint under The Illegal Dispossession Act is pending since August, 2010, though was required to be decided within 'a period of 60 days, but the complaint is still at initial stage due to non-cooperation of the petitioners as well as co-accused. The provision of section 5(2), Act XI of 2005 cast duty upon the trial Court to decide the case within 60 days and the inordinate delay admittedly is due to the conduct and behaviour of the petitioners as well as co-accused. Therefore, learned Additional Sessions Judge, Shujabad is directed to decide the complaint expediously but not later than 31st of October, 2012.