ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. B.A. No. S- 420 of 2012.

For hearing.

Mr. Rana Hafiz Tanveer Ahmed Advocate for the Applicant.

Mr. Sardar Ali Shah, APG for the State.

Date of hearing: 07.08.2012.

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Naimatullah Phulpoto J., The applicant/accused Shuaib seeks bail in Crime No. 60 of 2012, lodged against accused at Police Station, Bhiria City on 20.4.2012, under sections 302, 364, 311, 120-B, 34 PPC.

Brief facts of the prosecution case as disclosed in the FIR are that complainant had three brothers. Qurban Ali aged about 22 years (now deceased) was his younger brother. About five years back, complainant shifted from village Kharr Taluka Daulatpur and settled in village Usman. Deceased Qurban Ali was Munshi with his uncle Haji Aslam Bughio at Shahpur Jahania. About two months back, Qurban Ali entered into love marriage with Mst. Samina d/o Ghulam Rasol resident of Gujranwala province Punjab, presently residing at Daulatpur. It is alleged that one Safdar, brother of Mst. Samina was annoyed with Qurban Ali. Safdar Ali Mst. Rubina sister of Samina had declared Qurban Ali as KARO. Thereafter, Qurban Ali along with his wife Mst. Samina came to complainant and started living with him. On the day of incident, Mst. Rubina talked to Qurban and Mst. Samina on mobile phone and stated that she has settled family dispute about love marriage. Mst. Rubina called Qurban and his wife Samina at link road at banana garden for collection of gifts. It is further stated that Qurban Ali replied Mst. Rubina that they should come to his village. Any how, complainant along with his brother Qurban Ali, Miskeen, P.W. Mohammad Ramzan and sister-in-law Mst. Samina got a rickshaw and proceeded to banana garden of Ashraf Rajput where they reached at 1 p.m. At 1:30 p.m. one Cultus car appeared on the road. Accused got down from vehicle. Car was being driven by one Moazam Jatt. It is alleged that accused Safdar, Niaz Ali and Moazam and one unidentified accused carrying pistols in their hands issued challenges and asked Qurban Ali as to why he has married to Mst. Samina without their consent and declared him as KARO. It is alleged that accused Safdar Ali and Niaz fired from pistols which hit to Qurban Ali and he fell down. Complainant party could not resist. Thereafter, it is alleged that Mst. Rubina dragged Mst. Samina and made her to sit in a car and declared Mst. Samina as Kari and drove away. Complainant took his brother Qurban in injured condition to Bhiria hospital and then shifted to Civil Hospital, Naushehro Feroze where he succumbed to the injuries.

Statements of PWs Miskeen and Mohammad Ramzan were recorded under section 161 Cr.P.C on 25.4.2012 and present applicant was arrested on 26.4.2012. Abductee Mst. Samina was recovered on 26.4.2012. Her 161 Cr.P.C. statement was recorded on 27.4.2012. Statement of Mst. Samina was recorded under section 164 Cr.P.C. on 5.5.2012. Accused Mst. Rubina was let off by police during investigation. On the conclusion of investigation, challan was submitted against the present applicant and others under sections 302,364,343,120-B PPC.

Bail application was moved on behalf of the applicant before learned Additional Sessions Judge, Naushehro Feroze, which was rejected vide order dated 21.5.2012.

Learned counsel for the applicant contended that name of the present applicant did not transpire in the FIR. The applicant has also not been implicated by the PWs in their 161 CrPC statements. Only allegation against the applicant is that he was taxi driver and he had facilitated co-accused in the abduction of Mst. Samina. Accused Rubina has been let off by police during investigation. It was further argued that prosecution case is highly doubtful and the applicant has no concern of whatsoever with the alleged offence. In support of his contentions, learned counsel has relied upon the case law reported as Syed Amanullah Shah v. The State (PLD 1996 SC 241) and Muhammad Shaheen alias Shan v. The State (2009 PCrLJ 21).

Learned APG for the State argued that the applicant was taxi driver and he had facilitated co-accused in the commission of offence. PW Mst. Samina has implicated the applicant in her abduction, as such he has opposed this bail application.

I have carefully heard learned counsel for the parties and perused the record.

Name of the applicant did not transpire in the FIR so also in 161 Cr.P.C statements of PWs. P.W Mst. Samina in her statement under section 164 Cr.P.C has stated that she along with her sister Mst. Rubina after murder of Qurban Ali were taken forcibly by accused persons in a car to Punjab and she has implicated accused Roshan, present applicant and Moazam. It is very strange that Mst. Samina did not raise hue and cry on the way to the Punjab even at petrol pumps. Furthermore, 164 Cr.P.C of P.W Mst. Samina was recorded with unexplained delay on 5.5.2012 which also creates doubt in the prosecution case. Accused Mst. Rubina was let off by police during investigation. There is no allegation against the applicant about his involvement in murder of Qurban Ali. There is no motive against applicant/accused for commission of offence. Involvement of the applicant in second episode at subsequent stage can only be determined by the trial court after recording of evidence. Moreover, no over act is attributed against the applicant/accused. Prima facie, case against applicant/accused appears to be doubtful. Benefit of doubt shall go to the applicant even at bail stage. Learned counsel for the applicant in support of his contentions has rightly relied upon case reported as Syed Amanullah (supra) in which Hon’ble Supreme Court held as under:

“So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/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. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused”.

I, therefore, for the stated reasons hold that reasonable doubt arises with regard to participation of present applicant/accused in this case. Hence, case of the applicant prima facie calls for further inquiry in terms of subsection 2 of section 497 Cr.P.C. Consequently, bail application is allowed and bail is granted to the applicant Shuaib subject to his furnishing solvent surety in the sum of Rs. 200,000/- (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial court.

The observations made are tentative in nature and trial Court shall not be influenced by any such observation while deciding the case on merits.

Judge,