ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 16.07.2013
Mr.
Naheed Afzal Khan Advocate for the Applicant.
Mr. Arbab Ahmed Khan Khel Advocate for the
complainant.
Mr.
S. Zahoor Shah APG.
Syed Hasan Azhar Rizvi J; Applicant/accused
has approached to this court after rejection of her
Bail Application No.1109/2012 by the IVth Additional Sessions Judge, Karachi-West.
Certified copy of the order is enclosed as Annexure “C” with the memo of Bail
Application.
The brief facts as narrated in the FIR are that accused
persons committed murder of brother of the complainant Abdul Rahim by firing
upon him.
Learned Counsel for the Applicant submitted that the
Applicant/accused is a lady having three minor children,
she is innocent and has been falsely implicated by the complainant in collusion
with police in the present case. He submitted that no ocular or circumstantial
evidence is available with prosecution against the Applicant but due to
malafide on the part of the complainant the Applicant has been dragged into the
present case. Learned Counsel further argued that the Applicant is admittedly
widow of the deceased and mother of three children of the deceased out of them
one is suckling baby. Learned Counsel for the applicant urged that the
statement under section 164 Cr.P.C of the Applicant was recorded by the Ist
Judicial Magistrate, Karachi-West on 25.08.2012 after eight days of the
incident wherein the Applicant/accused did not remotely confess the guilt
rather in her 164 Cr.P.C. statement the Applicant fully implicated one Ishtiaq
with specific role in commission of crime. Learned Counsel for the Applicant
further submitted that without appreciating the contents of statement of the
Applicant recorded under section 164 Cr.P.C. before the Judicial Magistrate the
Trial Court rejected the bail of the Applicant while placing reliance on that
statement. Learned Counsel for the Applicant further submitted that earlier due
to matrimonial dispute between the Applicant and her husband on 29.03.2012 an
FIR No.162/2012 was registered at P.S. Saeedabad however, after recording of
statement of the Applicant under section 164 Cr.P.C. report was submitted by
the police under “C” class which was approved, thereafter about 6/7 months
Applicant was residing with her deceased husband as his wife and on the day of
incident applicant was present in the house of her husband, which is evident
from the FIR. Learned Counsel for the Applicant further contended that in order
to usurp the properties and business of the deceased husband of the Applicant,
the complainant who is the brother of deceased and other relatives of deceased
husband of the Applicant are trying to involve the Applicant with the intention
to deprive her and her children the assets and properties left by the deceased.
Learned
Counsel for the Complainant vehemently opposed the grant of bail to the
Applicant and argued that confessional statement of the Applicant was recorded
before the Judicial Magistrate wherein she pleaded guilty. Learned Counsel has
also filed a statement with certain documents, which mostly pertains to the earlier
litigation initiated after registration of FIR No.162/2012 by the deceased
husband of the applicant which was lodged on 29.03.2012. Learned Counsel for
the Complainant further submitted that the Applicant had illicit relations with
one Ishtiaq the absconding accused and the applicant has herself admitted in
her statement under section 164 Cr.P.C. that on the night of incident said
Ishtiaq had talked to the Applicant on telephone for about an hour. He
contended that the Applicant is fully involved in commission of murder of her
deceased husband.
Learned
APG adopted the arguments advanced by the learned Counsel for the Applicant and
vehemently opposed the grant of bail to the Applicant.
I have Mr.
Naheed Afzal Khan Advocate for the Applicant, Mr.
Arbab Ahmed Khan Advocate for complainant, Mr. S. Zahoor Shah learned APG and
perused the material available on record with their assistance.
On tentative assessment of the material available on record
it transpired that it was the Applicant who had informed the mother of the
complainant on telephone about the incident. It appears from the contents of
the FIR that the complainant on the basis of suspicion implicated the present
Applicant. On 25.08.2012 statement under section 164 Cr.P.C. of the Applicant
was recorded before the Judicial Magistrate wherein the Applicant stated that
when she opened the door on the day of incident, she saw that Rahim sustained
bullet injuries and blood was oozing from his injuries and Ishtiaq and one unknown
boy were present there, Ishtiaq was holding pistol in his hand when she saw
them they both run away.
On bare reading of the statement of the Applicant recorded
under section 164 Cr.P.c. carefully, it transpired that there is no confession
and admission of pleading the guilt by the applicant. The applicant has not
stated in her statement under section 164 Cr.P.C. that she had killed her
deceased husband or taken part in his murder in any manner.
In view
of above facts and circumstances discussed above, I am of the opinion that
prima facie no ocular or circumstantial material is available with the
prosecution against the present Applicant. The Applicant/accused is behind the
bars for about one year in the present case and the trial is still at initial
stage. The case of the Applicant is of further inquiry and she is entitled for
grant of bail at this stage.
Above
are the reasons of my short order dated 16.07.2013 whereby the Applicant was
admitted to bail subject to furnishing solvent surety in the sum of Rs.200,000/-
(Rupees Two Lac only) with P.R. Bond in the like amount to the satisfaction of
the learned Trial Court. The Trial Court was directed to conclude the trial
within a period of four months from the date of receipt of the order. The Trial
Court was also directed not to grant any unnecessary adjournment to either
party.
Observations made
hereinabove are of tentative nature and the trial Court shall not be influenced
by any such observation.
J
U D G E
Karachi
Dated _________________