ORDER SHEET
----------------------------------------------------
Date Order
with signature of Judge
----------------------------------------------------
For
hearing
24.04.2012
Mr. Salman Mujahid Baloch Advocate for the Applicant.
Ms. Seema Zaidi learned APG.
-------@@@@-------
Syed Hasan Azhar Rizvi J; By this order I would decide the
bail application filed by the Applicants Faisal Ansari.
Brief facts of the case as
incorporated in the FIR are that the complainant is
residing at the given address for last about 10/15 years and by profession he
is an advocate. On 09.01.2011 at about 7:30 P.M. while he was at his house
heard noise 6/7 fire shots coupled with running of motorcycle in his street. Suddenly
he came out from his house and saw that his younger brother Zubair Ali was
lying in injured condition near Wajid Kiryana shop, Sector 8/C, Saeedabad,
Karachi and he has four bullet injuries. Complainant tried to shift his injured
brother, who in the way of hospital succumbed to death. Whereupon
the FIR was registered against two unknown persons.
Final report as A-Class was submitted on 02.02.2011
and the IIIrd Judicial Magistrate, Karachi-West on 09.02.2011 agreed with the
conclusion by the investigating officer and approved the summary as A-Class.
Learned Counsel for the Applicant/ accused contended
that the Applicant/accused is innocent and has been implicated by the police
due to enmity. He submits that the case in hand is of an unseen and blind
murder, no evidence is available with the prosecution to connect the Applicant
in the offence as according to the FIR two unknown persons committed the
offence and even no description, hulia or features of them are mentioned in the
FIR. He further submits that there is no eye witness of the incident and the
Applicant was arrested in another crime by the police of Police Station
Clifton. According to the prosecution the Applicant made extra judicial
confession, which is not admissible under Articles 38 and 39 of the
Qnun-e-Shahadat Order, 1984. Learned Counsel for the Applicant further submits
that the prosecution has failed to give any reason that as to why confessional
statement of the Applicant under section 164 Cr.P.C read with section 364
Cr.P.C. was not recorded before any magistrate when the applicant was in
custody of the police and made extra judicial confession. Learned Counsel for
the Applicant urged that the statement of the complainant and witness Abdul
Wahid under section 161 Cr.P.C were recorded after more than one month of the
arrest of the Applicant as the Applicant was arrested on 12.10.2011 and
statements were recorded on 20.11.2011, therefore, the same have no value and
sanctity under the law. Learned Counsel for the applicant further submits that
memo of pointation of place of incident is dated 17.10.2011 wherein both
witnesses are police officials and no private/independent person has been cited
as witness, which creates doubt about pointation of the Applicant to the place
of occurrence. He further contended that pointation of place of incident by the
Applicant/accused does not carry any evidentiary value in the eye of law as it
is hit by Article 40 of the Qanun-e-Shahadat Order, 1984 when the place of
occurrence was already mentioned in the FIR by the complainant. According to
the learned Counsel for the Applicant the case of the prosecution is doubtful
and his of further inquiry. He placed reliance upon the case of Mir Hazar Malik
versus the State reported in 1999 SCMR 1377, where the Apex Court has held that
:-
“Name of the accused
did not originally transpire in the FIR and he was involved subsequently in the
commission of the crime. Prosecution in support of its second version had
relied upon the extra-judicial confession allegedly made by the accused before
the prosecution witnesses, which according to his counsel could not be relied
upon alone as strong piece of evidence to connect him with the offence and his
case required further inquiry. Accused was enlarged on bail”.
The Apex Court as well as this Court in several cases
treated extra judicial confession always a week of type evidence. Learned
Counsel for the Applicant has also relied upon the case of Sarfraz Khan versus
the State reported in 1996 SCMR 188.
On the other hand learned AAG Ms. Seema Zaidi
vehemently opposed the grant of bail to the Applicant on the ground that the
empties recovered from the spot at the time of murder of the deceased and the
pistol recovered from the Applicant at the time of his arrest were sent to FSL and
report of the FSL found to be positive. She further submits that the
Applicant/accused pointed out the place of occurrence.
I have heard Mr. Salman Mujahid Baloch Counsel for the
Applicant, Ms. Seema Zaidi learned APG and perused the relevant material
available on record with their assistance.
It is admitted position that the murder of deceased
Zubair Ali was unseen and blind murder and the FIR was lodged against two
unknown persons. Investigating Officer of the case submitted report in A-Class,
which was approved by the Judicial Magistrate concerned.
It is also an admitted position that the Applicant/accused was arrested in
another crime of P.S. Clifton, Karachi on 12.10.2011 and according to
prosecution on 17.10.2011 the Applicant/accused pointed out the place of
occurrence and memo was prepared at the spot before the witnesses but both the
witnesses/mashirs were police officials and no independent/private person was
cited as witness in the memo of arrest and memo of pointation of place of
incident. No sketch of pistol was prepared at the time of its recovery. Pistol
was allegedly recovered on 12.10.2011 but the same was received on 22.10.2011
after ten days of its recovery at the office of Assistant Inspector General of
Police Forensic Division, Sindh, Karachi, which is evident from the report
dated 29.10.2011. Delay of about ten days in sending the pistol to Forensic
Division has not been explained, which is creating reasonable doubts on recover
of pistol from the Applicant.
With regard to the extra judicial confession, the case
law cited by the learned Counsel for the Applicant is relevant wherein extra
judicial confession is stated to be a weak type of evidence, which can easily
be procured whenever no direct evidence of the crime scene available and the
Courts, therefore, while placing reliance on it have emphasised the use of
utmost care and caution. Applicant/accused has been robbed in the present case
on the basis of extra judicial confession, which is a weak type of evidence.
The case law cited by the learned Counsel for the Applicant in my humble
opinion bears some force.
In view of foregoing reasons, I do not find reason to
disbelieve the version of the Applicant as he has made at a case of further
inquiry. Hence, the Applicant is allowed to be released on bail subject to
furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lac only)
with P.R. Bond in the like amount to the satisfaction of the Trial Court.
Observations
made hereinabove are of tentative nature and the trial Court shall not be
influenced by any such observation.
J
U D G E