1. ' The facts leading to present application for bail are that applicant/accused Imamuddin Lashari is facing trial in Sessions Case No,670 of 1999 under sections 302, 337-A (ii) and 148, P.P.C. Before the learned I-Additional Sessions Judge, Khairpur. The case arose out of the F.I.R. No,117 of 1999 of Police Station, Baberloi.
2. ' The brief facts of the prosecution case as disclosed by the complainant Mst. Jumman wife of Shah Baig Lashari in her F . I . R . , dated 30-10-1999 are reproduced hereinbelow:--- "Complaint is that my daughter Mst. Shabhul aged about 22/23 years was married with Lal Dino son of Allah Dino Lashari resident of village Hussain Bux Lashari, Saeedabad, Taluka Sukkur from whom she has two issues i.e, one son and one daughter. About 8/9 months back Lal Dino alleged that his wife Mst. Sabhul is on illicit terms with Hidayatullah Jatoi resident of Katar Goth. He on the false allegation of 'Kari' had driven her out from his house. Subsequently, 'faisla' was made with Hidayatullah Jatoi. Lal Dino divorced Mst. Shabhul. She was residing with me in my house. Despite that accused Lal Dino and others were not satisfied. They were issuing threats that they will murder Mst. Sabhul as she is 'Kari'. Last night after taking meals, I, my husband Shah Baig son of Wahid Bux Lashari aged 59/60 years, my daughter Sabhul and my 'Der' (husband's brother) Gulzar son of Wahid Bux Lashari were sleeping in the house. The electric bulb was on in the house and there was also moonlight. On 30-10-1999 at about 2 p.m. In the night my daughter Mst. Sabhul raised cries.
3. We woke up on the cries and saw that 7 persons were present in the house. They were armed with guns. On electricity light we identified them to be 1. Allah Dino son of Qaiser,
2. Lal Dino,
3. Latif Dino son of Allah Dino and 4. Jumo son of Ramzan Lashari resident of village Hussain Bux Lashari, Saeedabad, Taluka Sukkur. The other three were unknown persons. The unknown persons were clearly seen by us and we can identify them. They were dragging my daughter Sabhul towards the street. We raised cries. Accused Jumo caught hold of Mst. Sabhul. Accused Allah Dino instigated other accused to kill Mst. Sabhul. Upon his instigation accused Lal Dino fired upon my daughter Mst.
4. Sabhul with his gun. The tire hit on her back and she fell down. The accused Lal Dino and his father accused Allah Dino fired from their guns on my husband Shah Baig. The shots hit him. He fell down.
5. I raised cries and tried to apprehend the accused, whereupon accused caused butt blows of guns on my face and nose. The bleeding started from my nose. I fell down. All the accused directed us not to come nearer. Due to fear we did not go near to them. The accused went away towards southern side. We saw Mst. Sabhul had sustained fire-arm injuries on her back and abdomen. She was bleeding and had expired. Shah Baig had sustained fire-arm injuries on the right side of chest and armpit. The neighbours Qalander Bux son of Ghous Bux Mastoi, Madad son of Soofan and others came running. We narrated the facts to them. After leaving them on the dead bodies. I have come for report. The above named accused out of vengeance in collusion with each other committed rioting and murdered my daughter Mst. Sabhul and my husband Shah Baig in our house and caused injuries to me. I complain. Justice be done. Investigation may be conducted."
6. ' During the course of investigation, police was not able to lay hands upon the applicant/accused, therefore, the challan was submitted before the concerned Court in his absentia on 3-12-1999.
7. ' The applicant/accused in order to evade from the arrest as well as from participating in the investigation, concealed himself for considerable period. Ultimately on 20-2-2000 he was arrested from -"graveyard of martyrs" and remanded to judicial custody.
8. ' The applicant/accused applied for bail before the trial Court but his bail plea was dismissed by impugned order, dated 28-7-2000.
9. ' It is contended by the learned counsel that the name of the applicant/accused does not transpire in the F.I.R. No overt act has been ascribed to him. No description of eminent features of the applicant/accused have been given in the F.I.R. And no identification test was held, therefore, he is entitled to bail. Learned counsel has placed reliance on the case of Faraz Akram v. The State (1999 SCM R 1360) and Piral alias Pir Bux and others v. The State (2001 M LD 630).
10. ' I have also heard Mr. Nidamuddin Brohi, learned counsel appearing on behalf of the Advocate- General, Sindh. He has conceded to the grant of bail.
11. ' The perusal of material placed on record shows that there is no cavil that two precious human lives were lost on the age-old pretext/notion of 'Karo Kari'. The reason for non-mentioning of the name of applicant/ accused in the F.I.R. Has been properly explained in further statement of the complainant which was recorded after F.I.R. Both the deceased i.e, Mst. Sabhul who is daughter of the complainant and her husband Shah Baig were callously murdered in her presence inside the house. Being an illiterate and injured woman of weak physique and nerves, who was in shock and panic omitted to name the applicant/accused as one of the culprits, in the F.I.R. This is natural. The mistake was immediately rectified by her.
12. ' P.W. Gulzar is an eye-witness of the incident. His statement under section 161, Cr.P.C. Was recorded immediately after the F.I.R. He has fully implicated the applicant/ accused in his statement. Thus, the contention that the name of the applicant/accused does not transpire in the F.I.R. Or no description with regard to the eminent features of the applicant/accused have been given in the F.I.R., is misconceived.
13. ' The source of light has been disclosed in the F.I.R. As well as in the statement of the P. Ws. The parties appear to be caste fellows. There could, therefore, be no question of mistake identity. The deceased Mst. Sabhul aged about 22/23 years was divorced by her husband accused Lal Dino Lashari and she was living with her mother (who is complainant herein), father deceased Shah Baig and uncle Gulzar in their house. The marriage tie between the accused Lal Dino Lashari and Mst. Sabhul did not subsist. Both were living separately.
14. ' It is spelled out from the record that the applicant/accused has not come before this Court with clean hands. In the present matter, previously Criminal Bail Application Punhoon Lashari v. The State (2001 PCr.LJ 926) in respect of co-accused Punhoon Lashari was filed and dismissed by order, dated 6-11-2000. This fact has not been disclosed in the memo. Of bail application as well as during the course of arguments by the learned counsel appearing on behalf of the applicant/accused and also by the learned counsel appearing on behalf of the State. Such practice is highly deprecated.
15. ' The case of the applicant/accused is similar to that of the co-accused Punhoon Lashari (2001 PCr.LJ 926). In that criminal bail application Mr. Sher Muhammad Shar, learned Assistant Advocate- General, Sindh appeared on behalf of the State. He opposed the bail plea of the applicant/accused Punhoon. The arguments advanced by the learned A.A.-G. Before this Court are reproduced herein below:--- "I have heard Mr. Sher Muhammad Shar, learned Assistant Advocate-General, Sindh on behalf of the State. He opposes the bail plea of the applicant/accused. The learned A.A.-G. States that immediately after the F.I.R, further statement of the complainant was recorded wherein she implicated the applicant/accused. P.W. Gulzar who is eye-witness as well as a natural witness of the incident, has also implicated the applicant/accused in his 161, Cr.P.C. Statement which was recorded on the day, the F.I.R. Was registered.
16. ' It is further argued that it is a double murder case and the accused formed an unlawful assembly and killed the deceased with common object."
17. ' Surprisingly enough, the arguments advanced by the learned counsel appearing on behalf of the State are complete somersault to the arguments of the learned A.A.G. Reproduced hereinabove.
18. ' It appears that the learned Law Officer did not care to peruse the police record and previous order passed by this Court and the opinion of his predecessor.
19. ' The contention that no overt act has been ascribed to the applicant/accused and that, therefore, he is entitled to bail is also not tenable in law. The applicant/accused joined hands with co- accused, barged into the house of the complainant during the odd hours of the night, prima facie, suggests that he was privy to the commission of offence. If a criminal act is committed in furtherance of common intention or object by several persons, each person would be liable for that act as if it was committed by him. In this context reliance can be placed on the case of Shah Zaman and 2 others v. The State (PLD 1994 SC 65).
20. ' It is well-settled that for the purpose of bail, detailed appreciation or evaluation of the evidence cannot be made but only tentative assessment is warranted by law.
21. ' It will be pertinent to glance over the status of women in pre and post Islamic period.
22. ' In pre-Islamic period the women had no Social Status. She was treated like a chattel, without any right. The women was meant for the entertainment and sexual lust of the men. The man had right to divorce but women after divorce had no right to remarry. She was bound to act as per the will and wish of the men with whom she lived. The authority of the men was unfettered. She was treated like soulless object. It is said that during Humurabi era the rights of the women were recognized, but in fact no substantial change was brought about. The women remained under the same control and authority. She had no right of inheritance, ownership, retention of movable and immovable property. She was bound to succumb to the will and wish of her master. The women had no right to raise voice against the miseries suffered by her or complain before the Court. The women and girls were buried alive.
23. ' After the advent of Islam, not only the rights were conferred upon the women but were guaranteed by the Holy Qur'an. The Holy Qur'an condemned the inhuman treatment meted out to the women. They were provided equal treatment in every walk of life. The Islam believes in righteousness.
24. ' During the lifetime of Holy Prophet Muhammad (p.b.u.h) and thereafter Muslim women worked in every walk of life. They were permitted to participate in social and political activities. They were allowed to appear and address the Court. The virtuous women were always respected in Muslim Society.
25. ' The Almighty Allah has ordained in Holy Qur'an as under:--- "Whoever works a righteous deed male or female and is a believer, verily we will endow him with a good pure life, and we shall pay them a recompense in proportion to the best of what they used to do."
26. ' (Al-Qur'an 16 : 97)
27. "God has heard the statement of the woman who pleads with you concerning her husband and complains to GOD and GOD hears (Al-Qur'an 58 : 1)
28. "And from HIS signs is that He created for your spouses from amongst yourselves that you may find tranquillity with them and he has placed between you love and mercy. Verily in that are signs for those who reflect."
29. (Al-Qur'an 30 : 21)
30. "And live with them (your wives) in kindness for if you take a dislike to them, it may be that you dislike a thing, and GOD brings about through it a great deal of goods."
31. (Al-Qur'an 4 : 19)
32. ' The Islam recognizes the importance of women.
33. "If a wife fears cruelty or desertion on her husband's part there is no blame on them if they arrange an amicable settlement between themselves and such settlement is best."
34. (Al-Qur'an 4 : 128)
35. "But if they disagree (and must part) GOD will provide abundance for all from HIS all reaching bounty. For GOD is He that cares for all and is wise."
36. (Al-Qur'an 4 : 130)
37. "When you divorce women, and they fulfil the term of the (Iddat) either take them back on equitable terms or set them free on equitable terms; But do not take them back to injure them (or) to take undue advantage; if any one does that he wrongs his own soul. Do not treat GOD's Signs as a jest; but solemnly rehearse GOD's favours on you. And the fact that He sent down to you the Book and wisdom for your instruction, and fear GOD, and know that GOD is well-acquainted with all things."
38. (Al-Qur'an 2 : 31)
39. ' In this verse the husband has been warned from causing any harassment or inconvenience to the divorcee. Holy Qur'an recognizes the quality between the men and women.
40. "Never will I suffer to be lost the work of any of your, be he male or female; you are members, one of another."
41. Para.195 of Surah III (Al-Imran)
42. ' She was given right of inheritance and possession without the control of men. Her complete domain over property earned by her was accepted. The consent for marriage was made mandatory. The husband was made responsible for the maintenance of the wife and off-springs from the marital tie. The cruelty against wife was strictly prohibited.
43. ' It was observed by this Court in case of Punhoon Lashari v. The State (2001 PCr.LJ 926) as under:- ' It is generally observed that the age-old pretext/notion of 'Karo Kari' is again at its height in the society. Many precious innocent human lives are being sacrificed to the idol of this notion. Even after the society has advanced and entered into new era of Twentieth Centtiry, the lust of the blood hounds for human blood has not diminished but it is on increase day by day. The Court cannot be oblivious of this terrible situation prevailing in the country. It is high time that it should be curbed with iron hand."
44. ' It was further observed as under:--- "The marriage under Islamic Law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an that it is for comfort, love and compassion. One of the objects of matrimonial tie is also procreation of human generation. It is the bounden duty of husband to keep his wife with love, affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down the parameters for spouses to live within those bounds and if the parties transgress those parameters, they should relieve each other i.e, they may break the matrimonial tie with kindness. Islam never confers power/right upon the husband to take land into his hands and to kill his spouse for any wrong committed by her. Even in case of fornication, the Qazi has to decide and fix the liability and impose penalty. It is not for the husband to perform the duty of Qazi and impose penalty of his choice. Islam even in case of allegation of chastity by the husband against the wife permits the dissolution of marital tie on , the principle of 'Lian'."
45. ' The deviation from the teachings of Holy Qur'an and ' Traditions ' have deteriorated the society and it appears that it is moving towards dark-age. This situation is horrendous.
46. ' The complainant lady Mst. Jumman has appeared in the Court and she has placed on record application wherein it is mentioned that the accused party is issuing threats of dire consequences to her and is pressing her hard to withdraw from the case.
47. ' A copy of this order be sent to the D.I.-G. Police as well as concerned S.S.P. They are directed to safeguard the life and liberty of the complainant.
48. ' The authorities relied upon by the learned counsel appearing on behalf of the applicant/accused are distinguishable from the facts and circumstances of the present case and are of no avail to the applicant/accused.
49. ' Consequently, the present application for bail stands, dismissed.