The petitioner namely Sohrab son of Nabban Chandio who is named in a case under section 302, Oisas and Diyat arising out of F.I.R. No.101 of 1993 dated 5-11-1993 registered at Police Station Sakrand, District Nawabshah seeks to be admitted to bail.
2. Prosecution story as narrated by complainant Jan Muhammad son of Ghous Bux, the brother of the deceased Khair Muhammad, is that the deceased was called by one Saleh (brother of the present applicant), to his house on some pretext. After 'a while when a gun shot was heard from that house, the complainant, the wife of the deceased Mst. Laila and mother-in-law of the deceased Mst. Soomri along with his cousin Bahero rushed to the place of incident where Saleh was found with a gun in his hand, his brother Khair Muhammad having a gun injury on his arm and Sohrab (the applicant) was holding the injured. In their presence Saleh fired twice on the person of his brother Khair Muhammad who died at the spot. It was disclosed by Saleh and Sohrab to them that deceased was Karo (had illicit relations with one Mst. Zubeda, the wife of Saleh) so he had been murdered. Soon after that both the accused went inside a room of that house and killed Mst.
Zubeda on the basis of allegations against her that she was a Kari (means having sexual relations with a person other than her husband). During the murder of Mst. Zubeda for gunshots were heard by the complainant and other persons who had accompanied with him. Hence the said F.I.R. Was lodged by the complainant against both the accused for' murdering his brother Khair Muhammad and Mst. Zubeda (the wife of accused Saleh).
3. Bail application under section 497, Cr.P.C. On behalf of accused Sohrab Chandio was moved before the IIIrd Additional Session Judge, Nawab Shah on 28-12-1993 who rejected the same on the ground that the applicant had enabled and facilitated the co-accused for murdering two persons.
Hence this application.
4. The learned counsel has sought bail on the ground that the applicant was empty-handed and the only allegation against him was that he was holding the deceased. In support of his contention, the learned Advocate for the applicant has relied upon certain cases where the superior Courts, without discussing the circumstances of those cases gave concession of bail to certain accused who were alleged to have caught hold of the deceased and another accused infected fatal blows or injuries on the person of the grasped deceased. As each case has its own foundation of facts, therefore; it has been found in several other cases, where the superior Courts refused this concession of bail to such persons who had been charged of clasping the deceased without causing any injury or blow to the deceased. For example in the case of Mst. Barkat Bibi v. Gulzar and another 1979 SCMR 65, petition for cancellation of bail was directed against the order of the Lahore High Court for granting bail to an accused Gulzar alleged to have caught hold of one Mst. Parveen Akhtar and co-accused ` inflicted three blows with his dagger causing her death. The accused leas been granted bail the grounds that the accused was not armed, had no motive o f his own, had not caused any injury to the deceased and that the challan had been sent up to the Sessions Judge for trial which made it a case of further enquiry- However, the Supreme Court celled the bail granted by the High Court by holding that in view of the specific role attributed to the accused the F.1.R., the provisions of section 34, P.P.C. Were prima facie attracted and mere submission of the Challan was not a ground on which bail could be granted as no date had yet been fixed for trial.
But in the case of Basharat Hussain v. Ghulam Hussain 1978 SCMR 357 petition for cancellation of bail was filed before the Supreme Court against an accused Ghulam Hussain who had been granted bail by one Sessions Judge and the Lahore High Court had refused to cancel his bail. The allegation against the accused was that he had caught hold of the deceased and thus facilitated the main accused to murder the deceased. The Supreme Court did not consider the case fit for interference by holding that the High Court had exercised its vested discretion properly.
On the basis oaf such judgments of the Supreme Court of Pakistan tae High Court exercised the discretion some times in favour of the accused and some tunes against the accused persons.
Because each case had its own foundation of facts, therefore, it is not possible to put each and every case in the cradle of "further enquiry" to provide soothing reef of release on bail. Reference in this connection can be made to the judgments of Jhanda v. The State reported in PLD 1990 Peshawar 166 and the case of Abdul Ghaffar v. The State reported in 1992 PCr.LJ 545. In the case of Jhanda bail was refused to the accused who had caught hold of the deceased although fatal injuries caused to the deceased were attributed to another accused while in the case of Abdul Ghaffar and another the concession of bail was given to the petitioners who had been charged of having caught hold of the deceased to enable the co---accused to inflict injury on the head of the deceased.
5.It cannot be presumed by any, person of sound senses that the Judges of the Supreme Court have carte blanche in their hands to use their discretionary powers at the cost of their neutralism.
Justice is a "Trust of Allah" arid airy discretion leading to discrimination amounts to perfidiousness.
Therefore; the contrary views oar the same type of offences are not the result of discretion but are the outcome of different backgrounds with different facts of each and every case. Even otherwise, after the promulgation of Qisas and Diyat Ordinance of 1991, the Judges are no more left to use such discretions in accordance to the Anglo-Sexon law but have to use such powers, ors far as possible, only in conformity of the promulgated laws of Islamic Shriah.
6. In the famous case of Muhammad Riaz v. Federal government reported in PD 190 federal Shariat Court I, the Honourable Judges of the Federal Shariat Court mentioned two references from the `Books of Ahadith' which are reproduced from page 10 of the said judgment hereunder:-- "It has been held by the Peshawar Bench that an offence of murder can be condoned by pardon, or on payment of `Diyat', otherwise the convict was to face the penalty of death. The same principle will be attracted in the cases of abettors under sections 109 and 114, P.P.C. In support, thereof, reliance is placed on two Ahadith as to be found on page 740, Vo.II of Mishkat-al-Masabih, as translated in English, by James Robson: `Ibne Umar reported the Prophet as saying, if a man seizes a man and another kills him, the man who killed him is to be killed and the one, who seized him is to be imprisoned. Daraqutni transmitted it: Said b. Al-Musayyib told that Umar-bin-Al-Khattab killed five or seven people for one man whom they had killed treacherously. Umar saying `If the people of San'a' had conspired against him, I would have killed them all'. Malik transmitted it, and Bukhari transmitted something similar on the authority of Ibne Umar."
Mr.Justice Agha Ali Hyder, in capacity of a Member of the said Shariat Bench, (as he then was) did not discuss the two references quoted above although he treated them to be two "Ahadith" while Mr.Justice Aftab Hussain (as he then was) only preferred to discuss second reference containing the act and saying of Hazrat Umar (which cannot be termed as Hadith) and not the first reference which is the Hadith of the Holy Prophet (peace be upon him) and then held in paras. 99 and 100 of the said judgment that: "It is well-known fact that on a child being killed Hazart Umar sentenced five or seven persons to death and stated that even if the entire city of Sunna had been a party to the death he would have executed all the inhabitants of that city. Balughul Maram by Allama Ibne Hajar Askalani, Tradition No.1203. The Hanbali view is contrary to this. But Shafe'i and Hanafis agree that all participants in the murder of one person shall be put to death irrespective of their number (See page 544 of Vol.V of Kitab-ul-Fiqh by Abdul Rehman Aljaziri).
"100. As regards the objection about the sentence of the abettor it will be sufficient to quote from Minhaj-ul-Talibin, page 397: `Premeditated homicide, committed under coercion by violence renders liable under the law of the telion not only the person who .Exercised the coercion but also the person who allowed himself to be intimated for the law regards them as accomplices."
Mr.Justice Aftab Hussain left the first reference untouched which was "Hadith of theHoly Prophet (peace be upon him) and undisputedly the "Hadith" of the Prophet had to override all the sayings and acts of his followers. The learnedMember of the Bench had preferred the commentary of one "Moulana ( C Muhammad Ali Jallandhari, in para. 54, (and then in Para. 67 of the said judgment by using the name only Muhammad Ali)" in support of his views. With profound respect for Mr.Justice Aftab Hussain (as he then was), unfortunately I have not been able to find out any commentary of Moulana Muhammad Ali Jallandhari, except one written by Muhammad Ali Lahori, who was the follower of Mirza Ghulam Ahmed Qadiani and Cheif of Lahori Sect of Qadianis. The reference of commentary given in para. 67 of the judgment also finds place in that commentary. It would have proved to be the best guideline for everyone if the Full Bench of the Federal Shariat Court had discussed the first reference, the Hadith of the Holy Prophet (peace be upon him), according to which "if a man seized a man and another kills him, the man who killed him is to be killed and the one who seized him to be imprisoned". The said Hadith was also not discussed by their Lordships while deciding the Shariat Appeals, preferred against the cited judgment of the Federal Shariat Court except by his Lordship Mr. Justice Muhammad Taqi Usmani on page 678 of the judgment of Supreme Court reported in PLD 1989 SC 633 by saying that: Translation of underlined portion: "Here, the sentence of death has not been awarded to a person who caught hold of the murdered, as equivalent to the sentence of murderer, but he has deserved to a sentence of imprisonment under `Ta'zir, and Hazarat Ali (R.A.) awarded `imprisonment of life' to a person according to the same, and kept him in the prison till he died." (Kanzul-ummal, page 82, Volume 15, Hadith No.40195).
7. Although section 300, P.P.C. Brings an act of a person, with his knowledge that his act is so immediately dangerous that it must in all probability cause death, in the ambit of "Qatl-i-amd"
(culpable homicide amounting to murder the under of such murder under section 302, P.P.C. Is of two types i.e., death or imprisonment. However, awarding any of the punishments under section 302(a), (b) or (c) is not discretionary but depends upon the facts and circumstances of each case.
If an accused has not inflicted fatal injuries to any deceased but has only caught hold of a deceased in such manners which facilitated, aided, abetted and enabled the main accuses to cause fatal blows or injuries to the deceased became helpless to defend himself, resulting in death of the said persons then such persons may not be awarded death sentence as Oisas but he cannot be saved from a sentence under "Ta'zir".
8. The learned counsel for the applicant had drawn my attention that the case in hand was a case of murder under the allegations of Karo Kari (means murdered pair involved in immoral offence of adultery) which is always intolerable in our society. No doubt, the murder of human pairs under the allegations of their being Karo (male accused of adultery) and Kari (female accused of adultery) is common in certain feudal-dominated areas in Pakistan which are still in the clutches of illiteracy and barbarism but decisions against such pairs even in such system, are always taken after hot discussion in a general body meeting of the tribes chaired by their Chiefs who treat such decisions to be decisions of general body jury. On account of the decisions of general body of a tribe, the murderers are generally escaped from punishment as no one from the tribe supports the prosecution, either as a sign of respect of their own decisions or on account of the fear engraved on their mind regarding the anguish of their tribal chiefs who never tolerate the violations of such decisions. However, such decisions were neither recognised legal prior to the partition of the sub- continent nor legalised by any Government of Pakistan. Besides the above, such decisions had never been given any legal cover by the laws of Shariah since the rise of Islam. After promulgation of the Shariat Laws in 1979 and in 1991 in Pakistan it becomes a sacred duty to discourage such murders which are not supported by Islamic Shriah. Moreover, such tribes have never given this right to individuals to declare someone to be Karo or Kari to kill such pairs. Therefore, if a person commits an offence of murder under the temptations of his violent feelings that if he did not kill the female member of his family involved in adultery along with her paramour, he would be treated a man of shame-proof indignation, then such person cannot save himself from the charge of murder or such persons, who may or may not be involved in adultery.
9. Apparently the facts and circumstances narrated in the case in hand reflect the same kind of feelings possessed by the accused namely Saleh at the time of murder of his own wife and her paramour and the applicant Subhan, being real brother of the accused, facilitated the murder of his sister-in-law and her sweet heart to take revenge of their stained honour. No doubt if any person finds his wife in objectionable condition he would definitely lose his temper to E murder the sinners but if a person has doubts or dues against the immoral activities of his wife then Islam has its own Laws and Rules to meet with such situations which have to be followed by every believer if he/she has faith in Allah and His Apostles. It does not support effervescence of vengeance by I taking the lives of persons but promotes tolerance full of senses. In all such cases Islamic Law of "Li'an" has been introduced which has to be applied by the Court and not by the- individuals. This law has been explained in section 14 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 which is reproduced hereunder:-- "14. Li---an.-(1) When a husband accuses before a Court his wife who is Mushan (means a sane and adult Muslim who either has had no sexual intercourse or has had such intercourse only with his or her lawfully-wedded spouse) within the meaning of section 5, of Zina and the wife does not accept the accusation as true, the following procedure of Li'an shall apply, namely:--
(a) The husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of Zina against my wife (name of wife)' and, after he has said so for times, he shall say: "Allah's curse be upon me if I am a `liar' in my accusation of Zina against my wife (name of wife)'; and
(b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: `I swear by Allah the Almighty that my husband is surely a `liar' in his accusation of Zina against me'; and, after she has said so for times, she shall say: `Allah's wrath be upon me if he is truthful in his accusation of Zina against me'.
(2)When the procedure specified in subsection (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.
(3)Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the case may be, she shall be imprisoned until--
(a) in the case of the husband, he has agreed to go through the aforesaid procedure; or
(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.
(4)A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of Zina liable to Hadd under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979."
10But death sentence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would be awarded only by the Court and not by the individual on the confessional statement of the accused persons provided the same is made before the Court or before any person appointed by the Court The Law of Li'an is further explained in the following Hadith of the Holy, Prophet (peace be upon him) narrated by Ibne Abbas in the following words: "Verily Hilal Bin Umaiyyah, confronted his wife before the Prophet and accused her of adultery with Shirric-Bin-Samhas. The Prophe said to him, `Bring witnesses, or take eighty lashes upon your back'
Then Hilal said, `O Messenger of God, when one of us sees a may upon his wife, must he go away to look for witnesses? The Prophet said, `Bring witnesses, or receive eighty lashes upon your back'.
They Hilal said, I swear by God, who has sent upon you on earth, verily am a teller of truth; and verily God will quickly send down an order which will save my back from being flogged. Then Gabriel brought revelation in explanation of Li'an. The Hilal gave his oath, and the Prophet said, `Verily God knows which of you is the liar; then d~ either of you repent'. Then the woman stood up, and made her oath and when she came to `May the anger of God be upon me if I lie, the people present forbade her repeating it, and said, `Verily this rift asseveration is a cause of punishment. Ibn- Abbass says `Then the woman stopped so that we imagined she would not repeat it; after which she said, I will not disgrace my family all my life; and shy finished the fifth asseveration; and the Prophet ordered a separation and said, `See the woman, if she brings a child with eyes the colour antimony, large buttocks, and fleshy legs, it is for Shirric-bin-Samha (because he was of this description). Then the woman brought fort such a child; and the Prophet said, `Verily, had not there been an order about it in the book of God, I would have done with the woman what I would have done" (PLD 1957 (W.P.) Lah. 998).
Thus, in spite of the resemblance of born body with her paramour, the accused lady was not awarded further punishment after her separation from her husband. However, the imputation to the fidelity against any woman must be sincere and of free will i.e. Free from threats, anger or a pretext to get separation from her in the modern civilised society or to defame a family to take some revenge.
11. Turning to the facts of the case in hand, no doubt the applicant Sohrab was empty-handed and he had not inflicted any blow to the deceased but I cannot be said that he neither aided, abetted nor facilitated his brother Saleh in murdering two persons as per F.I.R. Applicant is alleged to have taken away the deceased in his house in scheming manners because if the deceased or hi family had the least 'doubt that he was going to be murdered he would not have accompanied the applicant. The deceased was taken by the applicant to hi house where he is stated to be killed by the applicant's brother in his presence on the allegations of being Karo with Mst. Zubeda. The said Mst. Zubeda was also killed in the same house in his presence was the wife of accused Saleh and sister-in-law of the applicant. Hence apparently, this was case of Karo Kari N' otherwise no one would get his wife and her paramour killed. The learned counsel has contended that it was a false case concocted against the applicant. May this stand be correct, but at present there is nothing on record to prove the same. Hence unless some evidence is recorded to prove this stand, it would remain unfounded.
12. With reference to the year of promulgation of Qisas and Diyat Ordinance i.e. 1991, the learned counsel for the applicant has relied upon cases of Sardar Muhammad v. The State 1993 PCr.LJ 2601, decided on 21-11-1992 and of Muhammad Siddiq PLD 1994 Lah. 129, decided on 7-12-1993. No doubt these cases were decided after 1991 but so far as the case of Sardar Muhammad is concerned, it was a case of grave and sudden provocation which is not applicable to the case in hand. Sudden provocation was possible if the accused had seen the pair in an objectionable condition.
Regarding the case of Muhammad Siddiq, with utmost respect for the learned Judge of the Lahore High Court, I am unable to contribute my views in conformity with the views expressed in the case reported in PLD 1994 Lab. 129 on the basis of several reasons. Firstly none of the Hadith contains any decisions of the Holy Prophet (peace be upon him) about the cases of adultery. Secondly, the words of Sa'ad--bin-Abadah, that I shall kill a person with sword if I see him with my wife on the basis of envy (Ghairat in Urdu as used in the judgment) do not give a certificate to the husbands to kill their wives and paramours because such interpretation would provide a pretext to the husbands of immoral characters to kill their innocent wives by levelling such allegations. Thirdly the views expressed in the judgment are not in conformity with the Verse of Sura XXIV (An-Noor) of the Holy Our'an and the Hadith of the Holy Prophet (peace be upon him) referred with reference to Li'an in the above paragraph. It was on account of this dissension in opinion which forced me to elaborate my views, to some extent, in detail.
Lastly the learned counsel for the applicants has pointed out certain inconsistencies between the ocular evidence and the medical evidence besides non-recovery of empties. These inconsistencies are basically related to accused Saleh who is alleged to have fired from his gun and not to the present accused whose case is of holding the deceased to enable the main accused to murder two persons. Although certain grounds urged in the application in hand were not taken before the learned trial Court yet I have considered these points. If the transparencies of realities regarding any case are clouded in such manners that no presumption regarding innocence or guilt would be possible to draw about an offence then the matter falls within the ambit of further enquiry. The application in hand does not possess such characteristics at present.
However, it may be possible that the transparencies may be damaged with the coldness of prosecution or hotness of defence at the time of evidence. If such situation arises after some evidence is recorded, then the accused can move a fresh application for bail on such grounds. The trial Court would not be appreciated if at least two eye-witnesses and doctors are not examined within three months, so that the parties be not prejudiced due to delay in proceedings.
Resultantly, the petition for bail of the applicant fails and is dismissed in spite of the fact that the learned counsel for the State conceded to the grant of bail.