Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 01.03.2010
Date of order : 01.03.2010
Applicant : Abdul Hameed through
Mr. M.P.Awais Ansari, Advocate.
Versus
Respondent : The State through
Ms.Rehana Akhter, A.P.G.
ORDER
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied by the order dated 19.08.2009 passed by learned 1st Additional Sessions Judge, Malir, whereby bail application moved by the applicant in Sessions Case No.403 of 2008, was dismissed, hence the applicant has filed the instant bail application.
2. Brief facts as stated in the FIR No.617/2007, lodged at P.S. Sachal, are as follows:
"That on 24.12.2007 at 1625 hours the complainant Muhammad Ramzan son of Karim Bux recorded his statement under Section 154 Cr.P.C at Jinnah Hospital the same has been corroborated in the F.I.R wherein he stated that on 24.12.2007 at 1045 hrs. he along with his nephews Muhammad Muzaffar and Muhammad Akram was present at the shop, Muzaffar was busy in stitching while Akram was ironing the dress in shop, meanwhile two Motor Cycles came there, on one Motor Cycle Sultan Mehmood and Saif were ridden on it while on the other Motor Cycle Milkman and other unknown person seems to be Pathan was ridden on it. Sultan Mehmood opened fire with intention to kill, the bullet hit the forehead of Muhammad Akram after breaking the glass due to which he fell down and died at the spot. A baby namely AFIFA D/o Abdul Rasheed aged about one year also sustained bullet injury on her leg. The culprits fled away by making aerial firing, at the time of incident Naseer Bux and Kareem Bux were also present."
3. After usual investigation the police arrested the applicant/accused and submitted challan in the Court of Magistrate Sachal, Karachi.
4. It is contended by the learned counsel for the applicant that the applicant being an old man about 60 years of age has falsely been implicated in the instant case. Inspite of fact that neither he was nominated in the FIR nor any incriminating material against the applicant has been produced by the prosecution. It is further contended that in the FIR complainant has specifically nominated one Sultan Mehmood, who fired at the victim with the intention to kill and the bullet hit on the forehead of victim namely Muhammad Akram, who fell down and died at the spot. Learned counsel stats that there were other persons who have been nominated in the FIR with different role assigned to them. However, the name of the applicant is not mentioned in the said FIR. Learned counsel further stated that it was only on the basis of statement under Section 164 Cr.P.C of P.W. Muzaffar recorded after six months of the incident wherein the applicant has been implicated in an alleged offence of ransacking the house of one Abdul Rasheed firing was opened and the bullet which hit Bibi Afifa, who died out of such firing. Learned counsel stated that inspite of the fact that the applicant is known to the complainant as well as the prosecution witnesses but nobody nominated him in the FIR for alleged crime of murder nor any specific role has been assigned to the applicant in the instant crime. Learned counsel has placed reliance on the case of Muhammad Rahim and another v. Baita Gul and others P.L.D 1994 SC 86 and Allah Rekhio and others v. The State 2008 M.L.D. Learned counsel further argued that the applicant is an innocent person of advance age and is behind the bar for more than one and half year and even charge has not so far been framed by the trial Court. Accordingly, it is prayed that the applicant may be admitted to bail.
5. Conversely, learned A.P.G opposed the grant of bail. Learned APG submitted that prosecution witnesses have implicated the applicant and the trial is yet to be concluded the applicant may not be enlarge on bail.
6. I have heard both the learned counsel and perused the case record. It is evident from the perusal of the FIR that the incident took place on two different places, whereas one FIR has been lodged in respect of the incident took place on two different places resulting in the death of one Bibi Afifa at the house of one Abdul Rasheed, prosecution witness and Muhammad Akram, who allegedly died at his shop. It appears from the record that the applicant is known to the complainant as well as the prosecution witnesses but none of them nominated him in the instant crime. Applicant appears to have been implicated in the instant crime on the basis of statement of prosecution witness namely, Muzaffar recorded under Section 164 Cr.P.C after six months of the alleged incident which appears to be an after thought. Moreover there is no direct role has been assigned to the applicant in respect of the murder of the two victim as per prosecution story, the applicant has been assigned a role being amongst the persons who ridded the house of one Abdul Rasheed, where due to firing of some persons Bibi Afifa received the bullet injuries and eventually died.
7. In view of the facts of the case, the prosecution has not so far been able to bring any incriminating evidence agaisnt the applicant connecting him with the alleged crime of murder, whereas other charges i.e. accompanying with the main accused, the case has not so far been established and requires further inquiry. Under the facts and circumstances and on the basis of tentative assessment of the material on record it appears that the prosecution case is not free from doubt the benefit of which must go to the applicant. Moreover, after a lapse of about one and half year the charge has not been framed nor any incriminating evidence has been produced against the applicant and the applicant being a man of old age is behind the bar for more than one and half year is entitled to bail. Accordingly, the accused was granted bail subject to furnishing surety in the sum of Rs.3,00,000/- with P.R bond in the like amount to the satisfaction of the trial Court on 01.03.2010 by short order and these are the reasons for such order.
8. However, if the applicant misuses the concession of bail, the trial Court shall be at liberty to proceed against the applicant as per law. Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by any of such observation and shall decide the case strictly on merits and on the basis of evidence.
Judge
Karachi
Dated: 06-03-2010