' The facts leading to the present application for bail are that the applicant/accused Punhoon son of Ali Murad by caste 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 1st Additional Sessions Judge, Khairpur. It arose out of F.I.R.
No,117 of 1999 of Police Station Baberloi.
2. The brief facts of the prosecution case as disclosed by complainant Mst. Duman wife of Shah Baig by caste Lashari, in her F.I.R. Dated 30-10-1999 are reproduced hereinbelow:-- ' "Complaint is that my daughter Mst. Sabhul aged about 22/23 years was married with Lal Dino son of Allah Dino Lashari, resident of village Hussain Bakhsh Lashari, Saeedabad, Taluka Sukkur from whom she has 2 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 Kalar 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. Sabhul. 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 Shahbaig son of Wahid Bakhsh Lashari aged 59/60 years, my daughter Sabhul and my Der (husband's brother) Gulzar son of Wahid Bakhsh 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 2-00 a.m. In the night my daughter Mst. Sabhul raised cries. 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, (4) Jumo son of Ramzan Lashari, residents 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. Sabhul with his gun. The fire 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 Shahbaig. The shots hit him. He fell down. 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. Shahbaig had sustained fire-arm injuries on the right side of chest and armpit. The neighbours Qalandar Bakhsh son of Ghous Bakhsh 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 abovenamed accused out of vengeance in collusion with each other committed rioting and murdered my daughter Mst. Sabhul and my husband Shahbaig in our house and caused injuries to me. I complain. Justice be done.
Investigation may be conducted."
3. During the course of investigation police was not able to lay hands on the applicant/accused.
Challan was submitted before the concerned Court in his absence on 3-12-1999.
4. On 20-2-2000 the applicant/accused was arrested by the police. He was produced before the trial Court and he was remanded to judicial custody.
5. The applicant/accused applied for bail before the trial Court. His bail plea was dismissed by impugned order, dated 24-5-2000.
6. I have heard Mr. Liaqat Ali M. Bhutto, learned counsel on behalf of the applicant/accused. It is contended by the learned counsel for the applicant/accused that the name of the applicant/accused does not transpire in the F.I.R. No overt act has been ascribed to him. The co- accused Juman was granted bail by the trial Court, therefore, the applicant/accused is also entitled to bail on the rule of consistency. He further states that accused Allah Dino who was nominated in the F.I.R. Was let off by the police during the course of investigation. In support of above contentions, the learned counsel has relied upon the case of Inayat and others v. The State reported in 1997 PCr.LJ 463(1).
7. 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.
8. 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.
9. I have perused the material placed on record. There is no cavil about the fact 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 the applicant/accused in the F.I.R. Has been properly explained in further statement of the complainant which was immediately recorded after F.I.R. Both the deceased Mst. Sabhul who is daughter of the complainant and her husband Shahbaig were brutally murdered in her presence.
Being an illiterate and injured woman of weak nerves who was in shock omitted to name the applicant/accused as one of the culprits in the F.I.R. This is natural. This mistake was immediately rectified by her.
10. 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.
11. The case. Of co-accused Juman is distinguishable from the case of present applicant/accused.
The accused Juman was granted bail by the trial Court on the ground that complainant and all other prosecution witnesses i.e, eye-witnesses swore affidavits before the trial Court wherein they completely exonerated him. The ground of consistency is, therefore, not available to the applicant/accused.
12. The contention that co-accused Allah Dino who has been ascribed specific role of causing fatal blow to deceased Mst. Sabhul has been let off by the police during the investigation, is also misconceived. The record shows that only instigation was attributed to co-accused Allah Dino.
However, his name is placed in column II of the charge-sheet. The trial Court can join him as accused at any stage of the case. Apart from that there is no hard and fast rule that in each and every case if some accused were let off the other accused sent up must be enlarged on bail.
13. In the case of Ghulam Rasool and others v. The State PLJ 1980 SC 95, complainant nominated 18 persons as accused in the F.I.R. 13 of them were found innocent during investigation and they were let off by the police. The Honourable Supreme Court declined bail to remaining accused.
14. The source of light has been disclosed in the F.I.R. As well as in the statements of the prosecution witnesses. The parties appear to be caste-fellows. There could, therefore, be no question of mistaken 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 Shahbaig 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.
15. 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 Century the lust of the blood hounders 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.
16. In the case in hand accused with preconcert, common intention and object, during odd hours of the night barged into the house of complainant. They callously and barbarously not only killed the young lady Mst. Sabhul as Kari but also killed her aged father Shahbaig. They caused injuries to the poor complainant also.
17. The alleged Kari i.e, Mst. Sabhul was neither seen in company of her alleged paramour nor was she found in compromising position with any other person. The injuries on the person of the deceased as well as complainant are corroborated by the medical evidence.
18. 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 odd hours of the night, prima facie suggests that he was privy to the commission of the 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 Shahzaman and 2 others v. The State PLD 1994 SC 65.
19. 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.
20. 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 law 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".
21. The citation in the case of Inayat etc. (ibid) relied upon by the learned counsel for the applicant/accused is distinguishable from the facts and circumstances of the present case and it is of no avail to the applicant/accused.
22. Looking towards the peculiar facts and the circumstances of this case, I am of the considered view that there are reasonable grounds to believe that the applicant/accused is prima facie guilty of the offence. He is, therefore, not entitled to bail. Consequently, the application for bail stands dismissed.
23. The observations made hereinabove are of tentative nature and the trial Court shall not be influenced thereby in any manner whatsoever and it shall be free to arrive at its own independent conclusion after the evidence is recorded in the main case.