ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 11.07.2013
Mr.
Aamir Mansoob Qureshi, Advocate for the Applicant.
Mr.
Anwar Ali Sheikh, Advocate for the complainant.
Mr. Abdullah Rajput, APG alongwith DSP Usman Qureshi
and SI Ch. Muneer, SIU/CIA.
Syed Hasan Azhar Rizvi J; Applicant/accused
has approached to this court after rejection of his Bail Application by the IInd
Additional Sessions Judge, Karachi-South in Sessions Case No.125/2012 on
21.03.2013.
2. The
brief facts as narrated in the FIR are that on 15.11.2011, the complainant was
at his house when at about 1:30 a.m. his niece (bhanji) informed him that Bhai
Mubashir Mario was murdered by firing by some unknown persons for unknown
reason at Korangi Road-A in front of Market. On such information the
complainant reached at Jinnah Hospital Morgue and saw that dead body of his
nephew Mubashir Mario was lying on cemented stretcher. At hospital the
complainant was came to know that deceased was coming in his car No.ANK-298
Suzuki Alto and he was murdered by unknown persons at main Korangi Road
opposite A Market Defence, Karachi at about 12:15 A.M.
3. Learned
Counsel for the Applicant submitted that the Applicant/accused is absolutely
innocent and is being grabbed into the case solely on the statement of the
co-accused which is violation of Articles 38 and 39 of Qanoon-e-Shahadat,
Order, 1984. He further submitted that the Applicant was not nominated in the
FIR and subsequently his name was given by the complainant in his further
statement recorded after four days of registration of FIR. Learned counsel for
the Applicant contended that the name of the applicant was given in his further
statement on the basis of information provided by one Kamran Jafri a friend of
deceased. Two prosecution witnesses namely Muneer Ahmed and Asadullah Bugti
were introduced as eye witnesses after delay of eight days of the incident who were
examined by the Investigating Officer on 23.11.2011. He further submitted that
identification parade was held on 26.11.2011 after delay of about eleven days
from the date of incident through two procured witnesses whose names were not
even mentioned in the FIR and their statements were recorded after eight days
of incident. Learned Counsel for the Applicant urged that the prosecution is
placing reliance upon the mobile data of the cellular company and there is material contradictions with regard to location of the
place of incident and the location of presence of Applicant. Photocopy of mobile
phone data is enclosed as Annexure “A/34” Learned Counsel for the applicant
further contended that co-accused Mst. Amna has already been granted bail.
Hence, Applicant is also entitled for concession of bail, who
is in judicial custody for about nine months following rule of consistency.
Learned Counsel for the Applicant further argued that both alleged eye
witnesses claiming to be relatives of the deceased, their presence at the spot
is doubtful they are interested witnesses and their statements under section
161 Cr.P.C. were recorded after unexplained delay having no sanctity or legal
value in the eyes of law. Learned Counsel for the Applicant has placed reliance
upon 2009 SCMR 1210, 2011 YLR 1147, 2008 MLD 1646, 2002 P.Cr.L.J. 349, 1998
SCMR 570, 1974 P.Cr.L.J. 400 and 2009 YLR 114.
4. Learned
Counsel for the Complainant vehemently opposed the grant of bail to the
Applicant and submitted that Noman is the brother-in-law of the sister of co-accused
Amna. Applicant had developed relations with co-accused Amna who is wife of deceased
and after hatching conspiracy with the Applicant and co-accused Amna deceased
was murdered. PWs Asadullah Bugti and Muneer Ahmed had seen the Applicant and
co-accused at the time of commission of offence, who both appeared before the
Judicial Magistrate during identification parade and identified the Applicant. Weapon
used in the commission of crime was recovered on the pointation of the
Applicant the same was matched with empties. He further urged that from the
cell phone data of the Applicant and co-accused it is established that Applicant
at the time of commission of crime was available at the place of occurrence. He
has placed reliance upon 2007 P.Cr.L.J. 1620, 2008 YLR 2732 and 2009 P.Cr.L.J.
540.
5. Learned
APG has adopted the arguments advanced by the learned Counsel for the
Complainant and vehemently opposed the grant of bail.
6. I have
heard Mr. Aamir Mansoob Qureshi, Advocate for the Applicant, Mr. Anwar Ali
Sheikh, Advocate for the complainant, Mr. Abdullah
Rajput learned APG and perused the material available on record with their
assistance.
7. In 2009
SCMR 1210 (Maulana Abdul Aziz versus the State) it was held that:-
“When FIR was
lodged accused was not named in the FIR but was implicated in supplementary
statement. It was not known how the alleged offence were abetted or facilitated
by the accused in the absence of any evidence in this regard on record and
where evidence on record is vague and sketchy and prosecution version leaves
much to be inquired into, the bail can be granted by pressing into service the
concept of further inquiry. Where evidence with regard to the allegation of
abetment or instigation is lacking, the concession of bail can be extended in
favour of accused.
8. It is
also held in 2011 YLR 1147 (Ghulam Murtaza versus the State) that:-
“the delay in recording of statement of the witnesses caused shadow
of doubt of prosecution case necessitating further inquiry”.
9. In 2008
MLD 1646 (Junaid versus the State) it was held that:-
“Merely
presence of accused was not sufficient to establish the case of prosecution
against accused. Accused was allowed bail”.
10. In 2002
P.Cr.L.J. 349 (Ghulam Nabi versus the State), it was held that
:-
“Delayed
identification test both with reference to the date of occurrence and the date
when the accused was taken into custody, was always looked upon with the
maximum caution by the Courts of law”.
11. In 1998
SCMR 570 (Muhammad Khan versus Maula Bakhsh and another, it was held that :-
“Credibility
of a witness is looked with serious suspicion if his statement under section
161 Cr.P.C. is recorded with delay without offering any plausible explanation”.
12. In 1974
P.Cr.L.J. 400 (Gul Muhammad @ Gullo and another versus the State) it was held
that:-
“Alleged
eye-witnesses although claiming to have seen whole affair yet not reporting
matter to police and keeping silent for whole night of incident and only coming
to scene next morning when police recorded their statements. Ocular evidence,
not confidence inspiring”.
13. In the
present case on tentative assessment of the material available on record it
revealed that on 15.11.2011 when the FIR was lodged name of the Applicant was
not given by the complainant, who is maternal uncle of the deceased. After
delay of four days name of the Applicant was given in the further statement of
the complainant, who was informed by one Kamran Jafri that his deceased nephew
had relations with a girl Amna, who is residing in Phase-II, Extension DHA,
Karachi. Said co-accused on 2011.2011 alleged to have been arrested under
section 54 Cr.P.C. on suspicion. After eight days of the incident PWs Asadullah
Bugti and Munir Ahmed recorded their 161 Cr.P.C. statements. Both are residents
of Larkana but claims to be present at the place of occurrence
on the relevant date and time and alleged that they had seen occurrence. They
appeared before 6th Judicial Magistrate, Karachi-South at the time
of identification parade and identified the Applicant. It appears that
prosecution has tried to improve its case by placing two persons as eye
witnesses of the incident. Incident took place on 15.11.2011 while the statement of both the eye witnesses were recorded on
23.11.2011 after unexplained delay of eight days. Eye witnesses in their
statements recorded before the police claiming to have seen the incident while
they did not report the matter to police and kept mum for about eight days
without any reason.
14. Case Law
cited by the learned Counsel for the Complainant are absolutely distinguishable
from the facts and circumstances of the present case and the case law cited by
the learned Counsel for the Applicant, so also his arguments have some weight,
therefore, in my humble opinion the case of the Applicant is of further
inquiry, hence he is entitled for grant of bail at this stage.
15. Above are
the reasons of my short order dated 11.07.2013 whereby the Applicant was
admitted to bail subject to furnishing solvent surety in the sum of
Rs.500,000/- (Rupees Five Lac only) with P.R. Bond in the like amount to the
satisfaction of the learned Trial Court.
16. 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 _________________