IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Cr. Bail Application No. S-97 of 2015.
Date of hearing : 09.09.2015
Mr. Ali RazaKalwar Advocate for applicant.
Mr. Abdul Rasheed Kalwar Advocate for complainant.
Mr. Abddul Rehman Kolachi APG.
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ORDER
SHAHNAWAZ TARIQ,J:- Throughcaptioned post arrest bail application, applicant Abdul Ghafoor has impugned order dated 24.09.2014, passed by the Court of III- Additional Sessions Judge Mirpur Mathelo, whereby his earlier bail application was declined.
2. Relevant facts spelt out from F.I.R are that on 15.11.2013, at evening time accused Ali Asghar and Abdul Ghafoor came at the complainant’s house alongwith two unidentified persons and called his son Arbab Ali @ Asif Shah, who disclosed that he is going with them, but thereafter he did not return. On 23.11.2013, dead body of deceased was recovered from the land of Ghulam Hussain Leghari, hence instant F.I.R.
3. Mr. Ali Raza Kalwar, learned Counsel for applicant contended that applicant is innocent and has been implicated falsely by the complainant; that there is delay of more than 09 days in lodging of FIR while there is no direct evidence against the applicant except the allegations of last seen; that there is extra Judicial confession of co-accused Ali Asghar against himself and not against applicant, thus such extra judicial confession has no legal value against the applicant; that there is only a last seen evidence against applicant that he was allegedly found empty handed and accompanied co-accused Ali Asghar; that according to F.I.R the dead body of deceased was decomposed, hence nothing can be said with certainty regarding the injuries caused to the deceased; that the ocular account is in conflict with the medical evidence while enmity over the landed property and strained relationship between the parties are admitted in F.I.R; that the F.I.R was lodged on 24.11.2015, while dead body was recovered on 23.11.2015; that there is no reasonable ground to believe that applicant has committed the alleged offence or is involved in the alleged offence in any manner, and the liability of common intention of applicant will be determined after recording of evidence. He relied upon the cases reported in SCMR 387, 2011 SCMR 1543, 2014 YLR 695.
4. While controverting the above submissions, Mr. Abdul Rasheed Kalwar, learned Counsel for complainant vehemently contended that applicant along with co-accused persons came at the house of complainant and took away the deceased with them in presence of the complainant and others but thereafter the deceased did not return home; that on next day complainant approached accused persons and inquired about the deceased but they did not reply satisfactorily, therefore, the complainant remained in search of his son; that on 23.11.2013, complainant again approached the accused persons with the Holy Quran, whereupon co-accused Ali Asghar disclosed that they committed murder of deceased and his dead body is lying in paddy straws in the land of Ghulam Hussain Laghari, whereupon complainant party rushed to the pointed place and found the dead body of deceased; that co-accused Ali Asghar in his extra Judicial confession has admitted the alleged offence and police recovered the lathi on his pointation and also stated that applicant had caused stone injuries to the deceased, therefore, applicant committed the alleged offence with common intention. He relied upon the cases reported in PLD 1994 Karachi 431, 2000 SCMR 1784, 1998 P.Cr.LJ 746, 1990 SCMR 579, NLR 2005 Criminal 77, 2002 P.Cr.LJ 1114 and 2009 YLR 38.
5. Learned APG adopted the arguments advanced by learned Counsel for complainant and further contended that learned trial Court may be directed to conclude the trial within stipulated period.
6. Perusal of material available on record and consideration of the arguments advanced by learned Counsel for parties supported with case law emanate that allegedly on 15.11.2013, at evening time complainant’s son deceased Arbab Ali @ Asif Ali shah was called from his house by co-accused Ali Asghar and applicant accompanied with two unidentified culprits, who informed the complainant that he was leaving with accused persons. Indeed, alleged incident occurred on 15.11.2013 but complainant did not lodge the FIR nor approached higher authorities regarding missing of his son,though on next day allegedly accused persons did not reply the complainant satisfactorily. It is significant to mention here that on 23.11. 2013, complainant again approached accused persons along with Holy Quran, whereupon co-accused Ali Asghar confessed the commission of murder of the deceased and also disclosed the place of incident and availability of the dead body and complainant rushed towards said place, which requires serious consideration. Furthermore, police recovered crime weapon i.e. lathi on the pointation of co-accused Ali Asghar allegedly used during the commission of the alleged offence. However, complainant lodged F.I.R on 24.11.2013,with the delay of 9 days but no plausible explanation has been furnished regarding such delay caused in lodgment of FIR. The factum of animosity between parties over the landed property and their strained relations are reflected in F.I.R and the enmity is a double edge sword. Apparently, at present there are allegations of common intention against present applicant and in order to determine the question of common intention it is for the learned trial Court to thresh out the truth by recording the evidence of witnesses.
7. It is well settled that last seen evidence itself is not sufficient to maintain the charge of murder against the accused and allegations of last seen must be corroborated with further strong evidence to prima facie connect the accused with the commission of the alleged offence. When the last seen evidence is neither reliable nor natural and allegations of animosity are general in nature, the case falls within the canvass of further inquiry as envisaged under section 497(2) Cr.P.C. Reliance is placed on the case of Muhammad Amin v. State (2000 SCMR 1784).
8. It is also worthwhile to mention that prosecution has not disclosed the names and other descriptions of 2 other unidentified persons who accompanied the accused persons on 15.11.2013, when the deceased was called from his house. After completion of investigation, Challan has been submitted and the learned trial Court had already framed charge against the accused persons as such applicant is no more required for investigation and his further detention will not serve any useful purpose. It is well settled that bail cannot be withheld as punishment and accused could not be confined in jail for an indefinite period.
9. For the foregoing reasons, applicant has succeeded to make out the case for his enlargement on bail on the ground of further inquiry as envisaged under Section 497(2) Cr.P.C. Consequently, applicant is admitted to post arrest bail on furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three lacs) and PR bond in the like amount to the satisfaction of trial Court.
10. Nothing herein shall affect the determination of the facts at the trial or influence the trial Court in reaching its decision on merits of the case.
These are the reasons of short order dated 09.09.2015, whereby applicant was granted bail by this Court.
J U D G E
Ihsan