Ali Murad

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No. _____________/CB/2002

Ali Murad S/o Qadir Khan, caste Nokani, R/o Garkand Waziri, Tehsil Jam Pur, District Rajan Pur. ……PETITIONER

VERSUS 1.

The State.

2.

Rahim Dad alias Rahim Bakhsh S/o Ali Bakhsh, caste Nokani, R/o Raqba Noshahra Tehsil Jam Pur, District Rajan Pur. ……RESPONDENTS

APPLICATION U/S 497 (5) Cr.P.C. In Case: F.I.R. No.

353/2002

U/s: P.S.

302 P.P.C. Dajal (Rajan Pur).

Dated:

16.10.2002

Respectfully Sheweth: 1.

That the names and addresses of the parties have correctly been given for the purpose of their summons and citation.

2.

That the above referred F.I.R. was lodged on the instance of the applicant, he stated that his sister namely Sahib Khatoon was married 40/45 years before with the respondent No. 2 and from this wedlock, two sons and nine daughters were born and all are still alive. The respondent No. 2 is cultivating the lands situated in Raqba Naushehra within the area of P.S. DaJhil, owned by one Lal Bakhsh Fauja, since 7/8 years. On the day of occurrence, the applicant along-with his cousin namely Fida Hussain S/o Naseer Khan, caste Nokani went to the house of respondent No. 2 to see his sister. The applicant along-with Fida Hussain and Farooq Ahmad the son of his sister were sitting in the drawing room at about 11:45 A.M. Raheem Dad called Farooq Ahmad his son. Farooq Ahmad demanded the price of two mounds of cotton from his father/respondent No. 2, on which Raheem Dad started abusing Farooq Ahmad. On the noise Mst. Sahib Khatoon came

out

from

the

house

and

reprimanded

her

husband/respondent No. 2 on the same cause. The respondent No. 2 became infuriated and hit his wife Sahib Khatoon with a brick on her left flank (

) who died within span of

5/10 minutes. Respondent No. 2 fled away from the scene. Copy of F.I.R. and better copy are attached as Annex “A & A/1” respectively. 3.

That respondent No. 2 was arrested and found guilty. Respondent No. 2 applied for post-arrest bail which was allowed vide order dated 01.4.03. Certified copy of bail petition and order are attached as Annex “B & C” respectively.

4.

That order dated 01.04.03 is liable to be set aside/cancelled inter-alia on the following: GROUNDS i)

That the impugned order is against the law of natural justice and law of equity.

ii)

That the impugned order is against the prevailing law and norms of justice.

iii)

That the impugned order is illegal, unlawful and unwarranted under the law.

iv)

That the impugned order is capricious, fanciful and without lawful authority.

v)

That the ground on which the concession of bail was granted, even not agitated in bail petition before the learned lower court.

vi)

That the learned lower court while passing the bail order misconstrued the illustration cited in the said order. The weapon of offence in this case a brick of full size (9” x 4” x 2.5”) weighing 2½ Kg. which is in ordinary course sufficient to cause death of a person.

vii)

That the learned lower court could not bifurcate the “Qatal-e-Amad”

and

“Qatal-e-Shibah-ul-Amad”,

judiciously. viii) That for the sake of arguments if an offence U/s 316 P.P.C. is made out, then the punishment for the same is 14 years, which falls within the preview of prohibitory clause. ix)

That the ground of old age is self-explanatory, because the age of the accused/respondent No. 2 is less than 60 years, which does not fall in the preview of old age. Neither any proof in respect of age was annexed with the application nor age was determined by the learned lower court.

x)

That the ground of illness was even neither substantiated by the previous record, nor any report was called from the concerned quarters.

xi)

That there is sufficient proof/evidence to connect the accused/respondent No. 2 with the offence and no bail can be allowed under the law.

xii)

That the impugned order caused a great miscarriage of justice to the applicant and even not sustainable in the eyes of law. It is therefore respectfully prayed that the application in hand may graciously be allowed, the bail granting order dated 1.4.2003 may please the cancelled and the concession of bail extended to respondent No. 2 may please be withdrawn in the interest of justice. Humble Petitioner,

Dated: ________

Through: Hammad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

CERTIFICATE: Certified as per instructions of the client, that this is the first petition of on the subject in this August Court. No such petition has earlier been filed before this Hon’ble Court. Advocate

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No. _____________/CB/2002

Ali Murad

Vs

The State etc.

INDEX S. No. DESCRIPTION OF DOCUMENTS ANNEXES PAGES 1

Urgent Form

2

Petition U/s 497 (5) Cr.P.C.

3

Affidavit.

4

Copy of F.I.R. along-with better copy.

A & A/1

5

Certified copy of bail petition & order

B&C

6

Dispensation application

7

Affidavit

8

Power of attorney. PETITIONER,

Dated: __________

Through: Hammad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. ____________/2002 In Crl. Misc. No. ____________/CB/2002

Ali Murad

Vs

The State etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPY OF ANNEX. ==================================== Respectfully Sheweth: 1. That the above-titled application is being filed before this Hon’ble Court, the contents of which should be considered as part & parcel of the main petition. 2. That certified copy of Annex “A” is not readily available. However, uncertified/photo state copy of the same has been annexed with the petition, which is the true copy of the original document. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copy of the document. APPLICANT, Dated: __________ Through: Hamad Afzal Bajwa, Advocate High Court, 28-District Courts, Multan. C.C. No. 20959

Sheikh Muhammad Faheem, Advocate High Court, 28-District Courts, Multan. C.C. No. 20176

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. ____________/2002 In Crl. Misc. No. ____________/CB/2002

Ali Murad

Vs

The State etc.

DISPENSATION APPLICATION

AFFIDAVIT of: Ali Murad S/o Qadir Khan, caste Nokani, R/o Garkand Waziri, Tehsil Jam Pur, District Rajan Pur.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-titled application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of June 2003 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

Crl. Misc. No. ____________/CB/2002 Ali Murad

Vs

The State etc.

APPLICATION U/S 497 (5) Cr.P.C.

AFFIDAVIT of: Ali Murad S/o Qadir Khan, caste Nokani, R/o Garkand Waziri, Tehsil Jam Pur, District Rajan Pur. I, the above named deponent do hereby solemnly affirm and declare 1.

That the names and addresses of the parties have correctly been given for the purpose of their summons and citation.

2.

That the above referred F.I.R. was lodged on the instance of the applicant, he stated that his sister namely Sahib Khatoon was married 40/45 years before with the respondent No. 2 and from this wedlock, two sons and nine daughters were born and all are still alive. The respondent No. 2 is cultivating the lands situated in Raqba Naushehra within the area of P.S. DaJhil, owned by one Lal Bakhsh Fauja, since 7/8 years. On the day of occurrence, the applicant along-with his cousin namely Fida Hussain S/o Naseer Khan, caste Nokani went to the house of respondent No. 2 to see his sister. The applicant along-with Fida Hussain and Farooq Ahmad the son of his sister were sitting in the drawing room at about 11:45 A.M. Raheem Dad called Farooq Ahmad his son. Farooq Ahmad demanded the price of two mounds of cotton from his father/respondent No. 2, on which Raheem Dad started

abusing Farooq Ahmad. On the noise Mst. Sahib Khatoon came

out

from

the

house

and

reprimanded

her

husband/respondent No. 2 on the same cause. The respondent No. 2 became infuriated and hit his wife Sahib Khatoon with a brick on her left flank (

) who died within span of

5/10 minutes. Respondent No. 2 fled away from the scene. Copy of F.I.R. and better copy are attached as Annex “A & A/1” respectively. 3.

That respondent No. 2 was arrested and found guilty. Respondent No. 2 applied for post-arrest bail which was allowed vide order dated 01.4.03. Certified copy of bail petition and order are attached as Annex “B & C” respectively.

4.

That order dated 01.04.03 is liable to be set aside/cancelled inter-alia on the following: GROUNDS i)

That the impugned order is against the law of natural justice and law of equity.

ii)

That the impugned order is against the prevailing law and norms of justice.

iii)

That the impugned order is illegal, unlawful and unwarranted under the law.

iv)

That the impugned order is capricious, fanciful and without lawful authority.

v)

That the ground on which the concession of bail was granted, even not agitated in bail petition before the learned lower court.

vi)

That the learned lower court while passing the bail order misconstrued the illustration cited in the said order. The weapon of offence in this case a brick of full size (9” x 4” x 2.5”) weighing 2½ Kg. which is in ordinary course sufficient to cause death of a person.

vii)

That the learned lower court could not bifurcate the “Qatal-e-Amad”

and

“Qatal-e-Shibah-ul-Amad”,

judiciously. viii) That for the sake of arguments if an offence U/s 316 P.P.C. is made out, then the punishment for the same is 14 years, which falls within the preview of prohibitory clause. ix)

That the ground of old age is self-explanatory, because the age of the accused/respondent No. 2 is less than 60 years, which does not fall in the preview of old age. Neither any proof in respect of age was annexed with the application nor age was determined by the learned lower court.

x)

That the ground of illness was even neither substantiated by the previous record, nor any report was called from the concerned quarters.

xi)

That there is sufficient proof/evidence to connect the accused/respondent No. 2 with the offence and no bail can be allowed under the law.

xii)

That the impugned order caused a great miscarriage of justice to the applicant and even not sustainable in the eyes of law.

5.

That the contents of the above-titled application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of June 2003 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT