' Falak Sher petitioner has filed Crl. Misc. No,6993/B of 2003 and Muhammad Ashraf petitioner has filed Cr1. Misc. No,7233/B of 2003 in the same case F.I.R. No,425 of 2002 under sections 436, 427, 452, 337-R-2, 189, 149, P.P.C. Registered at. Police Station Bhikki District Sheikhupura which are being jointly disposed of by this order.
2. According to the prosecution allegations set up in the F.I.R. On 19-9-2002 at about 12 noon while Umar Hayat complainant alongwith his daughter Mst. Fauzia Bibi were present in their house situated in Thud Sheikhan both the petitioners alongwith their 17 named co-accused and 4/5 unknown companions all armed with fire-arms entered his house. Anwar co-accused yelled out Lalkara that the complainant etc . Be taught a lesson for the insult caused to the accused party on the preceding night. Consequently, all the accused named in the F.I.R. Including the petitioners started firing in the air on the alarm Iftikhar, Zahid Mehmood P.Ws. Also reached the scene of occurrence. Falak Sher petitioner alongwith Shahid, Zahid, Asghar and Abid co-accused scattered the household articles of the complainant and then they sprinkled the petrol which they had brought in a gallon on the household articles and roof and windows of the house, thereafter Ashraf petitioner and Asghar co-accused lit the match and put the house of the complainant on fire as a result of which all the household effects of the complainant valued at Rs,8 lac to Rs,10 lac were burnt to ashes. The motive for the occurrence set up in the F.I.R. Was that on the preceding night Asghar etc. Co-accused imputed Abdul Majeed brother of Umar Hayat complainant for carrying on illicit affair with mother of Asghar co-accused which led to scrimmage of the complainant and his brother Abdul Majeed with Asghar etc. And to revenge the said insult the occurrence had been committed.
3. It has been argued on behalf of Falak Sher petitioner that besides the general allegation of firing he has been alleged to have 'scattered the household effects of the complainant and sprinkled petrol on them and portions of the house, alongwith four other co-accused and that the said act could have been performed by lesser number of accused and the petitioner has been falsely implicated because of his enmity and that the occurrence as couched in the F.I.R. Does not appear to be probable and that the petitioner is in jail for the last 16 months and no useful purpose will be served in keeping the petitioner in prison for an indefinite period.
4. It has been argued on behalf of Muhammad Ashraf petitioner that the role attributed to him could have been performed by his co-accused Muhammad Asghar alone and that on the preceding night a quarrel had taken place between the complainant's and the petitioner's sides as Abdul Majeed brother of the complainant had been caught in adultery with mother of Asghar co- accused and the occurrence had taken place to vindicate the family honour and that in the peculiar circumstances of the case there are no chances for award of maximum sentence to the petitioner and his co-accused and as such the case of the petitioners goes out of the ambit of prohibitory clause.
5. The in this case had been lodged by Umar Hayat who is owner of the house, which had been set ablaze. His presence at his house appears to be quite natural and cannot be disputed. He in his F.I.R. Had positively alleged that Falak Sher petitioner after effecting entry in his house resorted to firing in the air, scattered his household effects and also sprinkled petrol on them and on the various portions of his house. During police investigations the statement of Mst. Fauzia who is daughter of the complainant and is inmate of the hour and Iftikhar and Zahid Mehmood P.Ws. Who are residents .Of the same village had been recorded under section 161, Cr.P.C. And they had all supported the allegations of the complainant. Similarly, the complainant and all the P.Ws. Have alleged that Ashraf petitioner alongwith Asghar co-accused had set the house alongwith its articles on fire.
6. The photographs of the house of the complainant showing the extent of damage to the house by the fire are present on the police file. The entire house comprising of 3 rooms and Veranda with all their roofs stand gutted with the fire. All the household effects of the complainant had been completely destroyed. The extent of damage to the house of the complainant and the household articles has been fully described in the spot inspection report by the Investigating Officer on his first visit to the place of occurrence after registration of this case which is in consistent with the allegations of the complainant and the P.Ws. That Falak Sher petitioner alongwith four others had scattered the household articles and sprinkled petrol on them. The extent of damage caused to the house is indicative of the fact that large number of persons were involved in setting it ablaze. The house of complainant alongwith its effects had been allegedly set on fire because of a quarrel, which had taken place between the petitioner side and the complainant's party on the imputation that Abdul Majeed brother of the complainant had illicit affairs with mother of Asghar co-accused.
The contention of the learned counsel for Ashraf petitioner that the occurrence had been committed to vindicate the family honour and as such the accused will not be awarded maximum punishment does not appear to be legally tenable. Had Abdul Majeed brother of the complainant who had been imputed for having -illicit affairs with mother of Asghar co-accused been subjected tb some violence then it could have been argued as a mitigating circumstances for award of lesser sentence and the arguments of the petitioner's counsel would have some substance but in the present case the complainant's entire house alongwith its effects had been gutted which in no way can be termed as vindication of family honour and as such does riot constitute a mitigating circumstance for award of lesser punishment.
7. Both the petitioners allegedly played a positive role in setting the house of the complainant alongwith its effects on fire and, therefore, they have prima facie committed an offence under section 436, P.P.C. Which falls within the prohibitory clause. The alleged conduct of the petitioners does not justify them to be released on hail. Their bail petitions are dismissed.