Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 08.03.2010
Date of order : 08.03.2010
Applicant : Shoukat Ali through
Mr. Khalil-ur-Rehman Abbasi, Advocate.
Versus
Complainant : Nazar Hussain, complainant through Mr. Muhammad Irfan, advocate
Respondent : The State through
Mr. Shahzado Saleem, APG.
ORDER
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied by the order passed by Vth Additional Sessions Judge Karachi West in Sessions Case No.862 of 2009, whereby the bail application of the applicant was dismissed on 11.12.2009, the applicant has moved the instant bail application.
2. Brief facts for filing the instant bail application are that an FIR No.211/2009 was registered at 1420 hours on 23.6.2009 at P.S. SITE, Karachi, under section 302/324 PPC on the complaint of one Nazar Hussain son of Sher Zaman (complainant), claiming to be the maternal uncle of the deceased namely Zahid Mahmood. The contents of the FIR are reproduced hereunder for the sake of brevity and relevance:
"With reference to today's Entry No.16, I, SI Mohammad Arif Khan posted at this PS for inquiry of the said entry reached at Abbasi Shaheed Hospital, Karachi and after giving written letter to MLO, Dr. Zahoor Ahmed about the dead body of Zahid Mahmood son of Arb Hussain aged 30 years, Post Mortem No.366/2009, proceedings U/S 174 Cr.P.C were carried out and after preparation of the Masheernama of Inspection of dead body, the body of Zahid Mahmood was handed over to his brother Tahir Mahmood S/O Arab Hussain. Thereafter statement of Uncle of the deceased namely Nazar Hussain S/O Sher Zaman, who was present in hospital was recorded U/S 154 Cr.P.C, which is as under:- From Mortchery of Abbasi Shaheed Hospital Dated: 23-06-2009 at 1245 hours statement U/S 154 Cr.P.C of Nazar Hussain S/O Sher Zaman, aged 47 years, caste Bhatti, resident of Quarter No.2, Block-1, Family Quarters, Baghdadi Police Line, Karachi, Phone No.0334-3228162, stated that I am residing with my family and working in Police as Head Constable B# 1844, posted at Baghdadi PS. Today I was on my duty in the official mobile from 0800 to 2000 hours during patrolling at 10:15 a.m my nephew Tahir Mahmood informed me on telephone that Zahid has been hit by bullet, who has been taken to Abbasi Shaheed Hospital and asked me to reach there. On this information, I reached at Abbasi Shaheed Hospital and from emergency ward, I came to know that he is in the mortchery and when I reached there I found Zahid Mahmood lying dead in the Mortchery and my other brothery persons were also present there. On my query cousin of the deceased Shahid Mahmood S/O Maqbool Ahmed told me that he and Zahid Mahmood both had gone to the Cantt Station to see off mother and sisters of Zahid Mahmood, who were going to their native village Kharohal, District Jehlum by Awam Express and after their departure he went to his office, while Zahid Mahmood boarded in Mazada Van of N-5 rout from Cantt Station for his City Bank Office and when he reached Sher Shah Chowk, some unknown person fired a bullet in the head of Zahid Mahmood from behind in the Mazda Van Route N-5, due to which he expired at the spot. My nephew Zahid Mahmood S/O Arab Hussain has been killed by unknown person/persons due to unknown enmity by firing on his head. I report, action may be taken. This is my statement."
3. During investigation on 28.8.2009 the applicant was arrested and final charge sheet was submitted in the Court of Vth Additional District Judge (West) Karachi on 25.9.2009 and at present Sessions Case No.862 is pending trial.
4. It is contended by the learned counsel for the applicant that in the instant case the applicant was not nominated in the FIR nor any role has been assigned to him relating to the alleged crime. The learned counsel stated that as per prosecution story the applicant has been impleaded in the instant crime after the statement under Section 161 Cr.P.C of Mst. Reshma recorded on 10th of March 2009. Learned counsel further pointed out that Mst. Reshma after about 40 days of the alleged incident moved an application to P.S. Site Karachi on her returning back from Jehlum to Karachi, wherein she expressed her suspicion about the involvement of the applicant in the instant crime. Learned counsel states that neither the complainant nor other prosecution witnesses have mentioned the name of the applicant in the FIR nor assigned any role connecting him with the alleged crime. Learned counsel further states that inspite of the arrest of the applicant on 28.8.2009, neither any statement under Section 164 Cr.P.C has been recorded nor any identification parade of the applicant has been made. Almost all the prosecution witnesses are relatives and the applicant has been implicated in the instant crime merely on the basis of suspicion. Learned counsel further states that empty which was allegedly recovered from the place of incident on 23rd June 2009 was withheld for about two months and was not sent to Ballistic Expert. According to learned counsel, under the facts and circumstances of the case, there is no possibility of conviction of the applicant in the instant crime as the allegations against the applicant are all based on mere suspicion, whereas there is no direct or any other corroborative evidence connecting the applicant with the alleged crime. The entire prosecution story is an after thought, connected after a considerable lapse of about 45 days from the date of occurrence, which makes the prosecution case doubtful and requires further inquiry into the matter. According to learned counsel, the applicant is behind the bar since 28.8.2009 in the absence of any direct role and incriminating evidence against the applicant who shall be enlarged on bail as a person cannot be made to suffer on account of mere allegations based on suspicion and in the absence of any direct incriminating evidence against the applicant. He further stated that the prosecution case is highly doubtful the benefit of which must go to the applicant/accused. In support of the arguments, learned counsel has placed reliance on the following judgments.
1. Ghulam Nabi & others v. The State 1998 P.Cr.L.J 968 Karachi.
2. Liaquat Ali & others v. The State1977 P.Cr.L.J 494 Lahore
3. 1981 P.Cr.L.J 1210 Karachi
4. Asghar Ali & others v. The State 1983 P.Cr.L.J 2146 Lahore
5. 1975 P.Cr.L.J 1271
6. Amir v. The State PLD 1972 SC 277
7. Muhammad Javed & others v. The State 1995 SC 1178
8. Muhammad Siddique & others v. The State 2004 P.Cr.L.J 450
9. Nasim Ahmed v. The State 1986 P.Cr.L.J 203 Lahore
10. Tariq Bashir & 5 others v. The State PLD 1995 SC 34
11. Syed Amanullah Shah v. The State PLD 1996 SC 241
12. 1999 P.Cr.L.J 245.
5. Conversely, the learned counsel appearing for the complainant opposed the grant of bail on the ground that since there was an enmity between deceased and the applicant who was engaged to the sister of the deceased about three years prior to the alleged incident. Thereafter the engagement was broken and the applicant in retaliation has murdered the deceased. According to learned counsel for the complainant that since the trial is under process the applicant/accused may not be enlarged on bail.
6. The learned APG has also supported the impugned order and adopted the arguments advanced by the learned counsel for the complainant.
7. I have heard both the learned counsel for the parties as well as APG, examined the record and perused the case law relied upon by the parties in support of their respective contentions. It is an admitted fact that the complainant has not mentioned the name of the applicant in the FIR nor any role has been assigned in connection with the alleged crime. It is merely on the statement under Section 161 of mother of deceased whereby applicant has been implicated in the instant crime. The very statement of the prosecution witness mentioned that on suspicion the applicant has been implicated in the instant crime. It is further noted inspite of considerable lapse of time the prosecution as well as the complainant have not been able to produce any direct or incriminating evidence against the applicant. Even identification parade has not been made nor any prosecution witness has been examined under Section 164 Cr.P.C, who could identify the applicant in the instant crime, inspite of the fact that the applicant was arrested on 28.8.2009. There is considerable delay of about 45 days, the reasons for which have not been explained either by the prosecution or the complainant in this regard. As per prosecution story, the empty was recovered on 23.6.2009 and the same was with held by I.O and the same was sent to Ballistic Expert for matching with the recovered weapon after a considerable period of about two months. It is pertinent to mention that as per statement under Section 161 Cr.P.C of Akbar Jan, the driver of the Van in which the deceased reportedly received bullet injury which eventually caused his death, he has merely seen a boy of black colour from back while running from the scene of the crime and there is no identification of the boy nor it has been stated by the prosecution witness that he may recognize the such person whenever identified to him in due course of time. In view of the facts hereinabove and on tentative assessment of the record and evidence it appears that the prosecution case is not free from doubt and requires further inquiry into the matter. For reasons to follow, the applicant was admitted to bail vide short order dated 8.3.2010 subject to furnishing of solvent surety in the sum of Rs.3,00,000/- (Rupees Three Lacs only) with P.R bond in the like amount to the satisfaction of the trial Court, and these are the reasons for such short order.
8. Reference in this respect can be made to the case of Amir v. The State P.L.D 1972 SC 277, wherein Hon'ble Supreme Court has held that benefit of doubt, of any arising, must go to the accused. Similarly, further reliance can be placed on the case of Syed Amanullah Shah v. The State P.L.D 1996 SC 241, the Hon'ble Supreme Court has held as under:
"Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial."
9. Needless to mention that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by such observations and decide the case strictly in accordance with law and on the basis of evidence available on record. It is further clarified that during the trial, if prosecution succeeds in producing any incriminating evidence against the applicant/accused the trial Court shall be at liberty to cancel the bail of the applicant after proper legal requirements in this regard.
Judge