IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1485 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
Mr. AamirMansoobQureshi, advocate for
applicant.
Mr. Abdullah Rajput, A.P.G.along with SIP Muhammad RazaZaidi, P.S. Shahrah-e-Faisal.
None present for complainant.
Date of hearing : 08.12.2016
O R D E R
SHAHNAWAZ TARIQ,J:- Through captioned post-arrest bail application, applicant Dr. GulHasanZaidihas impugned order dated 26.04.2016, passed by the Court of learned III-Additional Sessions Judge, Karachi East, whereby his earlier bail application was declined.
2. Per prosecution’s accusation, on 27.01.2015, at about 0225 hours,complainant received information that his cousin namely Fazal-ur-Rehmansustained bullet injuries and dead body was lying at Jinnah Hospital,so he reached there and came to know that at 0210 hours while deceased was on his way back, unknown persons killed him with the fire arm near Pehalwan Goth,hence instant FIR.
3. Learned counsel forapplicant,at the very outset,contended that applicant is innocent and has been falsely involved by the complainant with ulterior motives; that name of applicant is not mentioned in FIR andcase was disposed of under “A-Class”,but names of eye-witnesses were not mentioned therein; that applicant was apprehended by Rangers, against which applicant’s wife moved applications to SHO, P.S. Gulistan-e-Jauharand D.G. Rangers and ultimately she filed petition before this Court andRangers disclosed that applicant was detained for 90 days. Learned counsel further emphasizedthat applicant was againinvolved in another crime and another petition was filed before this Courtagainst police officials.
Learned counselsubmitted that Investigating Officer recorded two statements of PW Muhammad Sharif u/s 161 Cr.P.C. on the same day, which are controverting each other, while 164 Cr.P.C. statement of PW Syed Asad Abbaswas recorded with inordinate delay, but no identification parade of applicant was held; that applicant is in continuous custody but charge has yet not been framed. Learned counsel relied on 2001 YLR 936, 2010 YLR 2031, 2006 P.Cr.L.J. 1400, PLD 2012 SC 222, NLR 1983 Cr. 25 and PLD 1995 SC 1.
4. While controverting the above submissions,learned APG vehemently opposed the plea of bail and contended that applicant has been nominated by eye witness Syed Asad Abbas in his statement under section 164, Cr.P.C. However, he candidlysubmitted that no other iota of evidence is available with prosecution to connect the applicant with the alleged offence.
5. Perusal of available record emanates that incident was occurred on 27.01.2015 and FIR was lodged against unknown persons and in the first phase of the investigation, police submitted report under ‘A-Class’ which was approved by the Magistrate, but names of both PWs were not mentioned in said report. Conversely, applicant was arrested by Rangers alongwith police personnel on 14.04.2015 from his house and applicant’s wife moved applicationinstantly to SHO, P.S. Gulistan-e-Jauhar and thereafter she moved another application to same SHO on 28.04.2015 but no action was initialed by the police in this regard. Subsequently, application’s wife moved applications to D.G. Rangers against illegal arrest of her husband but no response was given by Rangers Authorities. Perusal of record further reflects that initially C.P No.D-4813/2015 was filed before this Court against Rangers and others, wherein Rangers filed comments and disclosed that applicant was detained under section 11EEEE of Anti-Terrorism Act, 1997 for 90 days. Thereafter applicant’s wife filed another C.P No.D-6883/2015 against police officials, whereby SSP East filed comments that applicant has been arrested in present crime on the bases of his confession before the police.
6. Indeed, name and face descriptions of applicant were not narrated in FIR noridentification of applicant parade was conducted before the Magistrate. Two statements of PW Muhammad Sharif u/s 161 Cr.P.C. were recorded on 27.01.2015, and in his first statement he did not implicate the applicant as he was inside of his house, but in his second statement he noticed culprits on main road from his house from a considerable distance at 0210 hours, hence due to night hours such identification requires further corroboration, while learned APG did not furnish any probable justification as to why two statement of the PW were recorded on same date, which otherwise are self-contradictory.Statement of PW Syed Asad Abbas was recorded under section 164, Cr.P.C. before the Magistrate after 21 days of arrest of application, but identification parade of applicant was not held before the Magistrate.In cases of blind FIRs where culprits were not named or were unknown, conducting of identification parade of accused before the Magistrate through PWs is mandatory and in absence of such parade, extrajudicial confession of accused before the Investigating Officer without any corroborative tangible evidence, is not permissible under article 38 of Qanoon-i-Shahadatand bail in such nature cases could not be withheld as a punishment mere considering the sensitivity of the offence. Admittedly, applicant is behind the bars forthe span of 21 months, but charge has yet not been framed, and early commencement of the trail is not expected which even otherwise is utter violation of right of fair trial of a person and no one can be deprived from speedy trial to seek justice, hence further detention of applicant will not serve any useful purpose, and allegations requires further inquiry.
6. Considering the facts and circumstances referred supra, applicant has succeeded to make out a case for grant of bail on the ground of further enquiry as envisaged under subsection 2 of section 497 Cr.P.C. Consequently, applicant is admitted to the post-arrest bail subject to the furnishing solvent surety in sum of Rs.100,000/- (Rupees one lace only) with P.R. bond in the like amount to the satisfaction of learned trial Court.
The observations made above are tentative in nature and learned trial Court shall decide the subject case strictly on its merits.
JUDGE
Zahidbaig