Sargand vs State

2014 M L D 1464

[Peshawar]

Before Muhammad Daud Khan, J

SARGAND and 6 others---Petitioners

Versus

The STATE through Additional Advocate General and another---Respondents Criminal Miscellaneous Bail Application No.438-M of 2013, decided on 8th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 310-A & 34---Constitution of Pakistan, Art. 9--- Giving a female in marriage or otherwise in badal-i-sulh, common intention---Bail, refusal of--- Accused persons were accused of giving hand of complainant in "Swara", without her will and consent in order to settle a dispute---Record revealed that a Jirga was convened, wherein the elders of the locality gave hand of complainant as "Swara" as per custom of the area---Practice of such tradition was mere derogation and disobedience of the law---Handing over a lady without her consent in such humiliating manner was not only against the Fundamental Right and liberty of human beings enshrined in the Constitution, but also against the importance and value of human beings given by Allah Almighty to the most imminent of created things ("Ashraful Makhluqat")---Record suggested that accused persons were involved in the commission of the offence and as such no ground existed in their favour entitling them for the concession of bail--- Accused persons were refused bail accordingly.

Sajjad Anwar for Petitioners.

Sanaullah for the Complainant.

Rafiq Ahmad, D.A.G. for the State.

Date of hearing: 8th October, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---The accused/petitioners herein, after refusal of concession of bail by the Courts below, in case F.I.R. No. 170 dated 4-9-2013 registered at Police Station Shah Dherai, District Swat, under sections 310-A/34, P.P.C., seek their release on bail as such.

2.As per F.I.R. the accused/petitioners are charged for giving the hand of complainant Mst. Nazia as 'Swara' to one Sardar Hussain. As such, present case was registered vide F.I.R. referred

above.

3.Perusal of the record would reveal that after refusal of police to enter report of the complainant, she approached the Chairman Public Safety and Police Complaints, Swat, who after hearing all concerned, directed the local police to record statements of complainant and her witnesses before the competent Court. Accordingly, on 4-9-2013 statements of complainant and her brother Umar Sadiq were recorded by the Judicial Magistrate, under section 164 Cr.P.C., which revealed that hand of complainant was given to Sardar Hussain in 'Swara', without her will and consent by the accused/petitioners in order to settle dispute with regard to illicit relations inter se Sardar Ali, uncle of the complainant and Mst. Jan Bakhta wife of Khan Bacha. On the basis of such statements, case vide. F.I.R. referred to above was registered against the accused/petitioners.

4.Learned counsel for the petitioners contended that accused/ petitioners are innocent and have been falsely implicated in the present case; that there is no independent impartial and trustworthy evidence to support the allegations against the petitioners; that the petitioners have not confessed their guilt and that accused/petitioners are no more required to for further investigation. He prayed for release of the accused/petitioners on bail.

5.On the contrary, it was argued that accused/petitioners have been directly charged by the complainant for the commission of offence; that there is ample evidence on the record to establish involvement of the accused/petitioners in the commission of offence and that no case for further inquiry is made out in favour of the accused/ petitioners.

6.Perusal of the record would reveal that in order to settle the dispute with regard to illicit relations inter se Sardar Ali, uncle of the complainant and Mst. Jan Bakhta wife of Khan Bacha a 'Jirga' was convened, wherein the elders of the locality gave the hand of Mst. Nazia to one Sardar Hussain as 'Swara' as per custom of the area. At the time of above mentioned decision of the 'Jirga' members, section 310-A has already been inserted in the Pakistan Penal Code (P.P.C.) and in presence of the sections 310 and 310-A, a practice of such tradition was mere derogation and disobedience of law. Handing over the lady without her consent in such humiliating manner is not only against the fundamental right and liberty of human beings, enshrined in the Constitution of Pakistan, 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., which is reproduced as under:

"310-A. Punishment for giving a female in marriage or otherwise in `badla-e-sulh', wanni or Swara: "Whoever gives a female in marriage or otherwise compels her to enter into marriage,. `badla-e-sulh', wanni, or swara 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."

8.At this stage, the record suggests that accused/petitioners are involved in the commission of offence and as such no good ground exists in their favour entitling them for the concession of bail. Needless to say that the tentative assessment made herein above shall not prejudice the trial Court.

For the foregoing reasons, this application for post arrest bail, being meritless, is dismissed. However, the learned trial Court is directed to conclude the trial within two months after receipt of copy of this order and record of the case.

MWA/243/P Bail refused.