IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 479 of
2015
(Syed
Ali Raza and another Vs. The State)
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr. Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
For hearing of Bail Application.
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Date of hearing: 15th December 2015
Date of announcement: 21st December 2015
Mr. Aamir Mansoob Qureshi Advocate for the
applicants/accused.
Mr. Abrar Ali Khichi A.P.G. for the State.
-.-.-.-.-.-.
Naimatullah
Phulpoto, J.- Applicants/accused
seek bail in Crime No.120 of 2012 registered at P.S Shahra-e-Faisal for
offences under Sections 365-A/302/34 PPC read with Section 7 A.T.A. 1997.
2. Brief
facts of the prosecution case as disclosed in the FIR are that Mst. Ambar Nawaz
lodged FIR alleging therein that her son Zaeem Nawaz was kidnapped for ransom
on 08.02.2012. FIR was recorded vide Crime No. 120/2012 at PS Shahrah-e-Faisal.
During investigation, accused Syed Ali Raza, Ali Raza and Muhammad Zohaib were
arrested and they pointed out the place from where they had kidnapped the boy
for ransom in presence of mashirs namely Inspector Ali Muhammad and SIP
Muhammad Anwar. Accused had also pointed out the place from where chapel of
deceased boy was recovered. I.O recorded 161 Cr.P.C statements of P.W. Zulfiqar
Ahmed shopkeeper, from where applicants/accused had purchased chloroform. 161
Cr.P.C statements of other P.Ws were also recorded. After usual investigation, challan was submitted against the accused
Syed Ali Raza, Ali Raza and Zohaib under Sections 365-A/302/34 PPC read with
Section 7 ATA 1997.
3. Bail
application was moved on behalf of accused Syed Ali Raza, Ali Raza and Zohaib before
the trial Court. The same was rejected vide order dated 16th April
2015. Thereafter, applicants/accused Syed Ali Raza and Ali Raza have approached
this Court for same relief.
4. Mr.
Aamir Mansoob Qureshi learned Advocate for the applicants/accused contended
that names of the applicants/accused did not transpire in the FIR and the
mashirs before whom place of dead body was pointed out have been declared
hostile at trial by prosecution. He has further contended that there is no
piece of evidence to connect the applicants/accused in the commission of
offence. Lastly, he has contended that examination-in-chief of the complainant
has been recorded, thereafter warrants have been issued against complainant
Mst. Amber, but she did not appear before the learned Trial Court for
cross-examination. He has argued that prosecution case requires further
enquiry.
5. Mr.
Abrar Ali learned APG argued that applicants/accused had pointed out that place
from where they had kidnapped the boy for ransom. Applicants/accused had also
pointed out the place of recovery of the dead body. He has also argued that
applicants/accused also pointed out the place from where chappal of the boy was recovered. Learned APG has lastly, argued
that shopkeeper has also implicated the accused before the trial Court. He has opposed
the bail application.
6 We have
carefully heard the learned counsel for the parties and perused the relevant
record.
7. It
appears that during investigation on 12.02.2012, both the accused had also
pointed out the place from where dead body of deceased boy was recovered. On 14.02.2012,
both the accused in police custody pointed out the place from where boy was
kidnapped for ransom and on the same day they had also pointed out the place
from where chappal of deceased boy
was recovered. P.W- Zulfiqar Ahmed has also implicated the accused while
deposing that both accused had purchased chloroform from his shop. Postmortem
report is also there. Contention of the learned counsel for the
applicants/accused that mashirs of the recovery of the dead body have been
declared hostile by prosecution, it makes prosecution case doubtful. Such contention
can only be examined deeply by the trial court. No enmity whatsoever has been
alleged against the complainant to falsely implicate the accused in the
commission of the offence. In this case, a boy of 12 years has been murdered
for ransom. Evidence of 07 P.Ws has already been recorded. Deeper appreciation
of evidence is not permissible at bail stage. Proper course in such situation
would be to direct the trial court to decide the case within a specified period
as held by Honourable Supreme Court in the case of Muhammad Nawaz vs. The State (2002
SCMR 1381). Prima facie, there appear reasonable grounds for believing
that applicants/accused have committed alleged offence, which is punishable
with death or imprisonment for life. No case for bail to the applicants/accused
is made out. Consequently, the bail application is dismissed. However,
Trial Court is directed to decide the case within a period of two months.
8. Needless
to mention here that the observations made hereinabove are tentative in nature
and the learned Trial Court shall not be influenced by the same while deciding
the case of accused on merits.
JUDGE
JUDGE