Criminal Bail Applications Nos. 388 & 544 of 2013
Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 16.12.2013
Date of order : 16 .12.2013
Applicant : Muhammad Noman through
Mr. Arshad Mehmood,
Advocate in Cr. Bail Application
No.388 of 2013
Applicant : Mohsin Ali through Mr. Saeed A.
Khoso, advocate in Cr. Bail
Application No.544 of 2013
Versus
Complainant : Muhammad Ali through
Mr. Muhammad Mehmood S.K.
Yousfi, advocate.
Respondent : The State through
Ms Rehana Akhtar, Addl.PG.
O R D E R
Aqeel Ahmed Abbasi, J. Through this common order, I intend to dispose of the above mentioned Criminal Bail Applications arising from same Crime No.276 of 2012 under Section 302/34 PPC.
2. Being aggrieved and dissatisfied with the orders dated 09.04.2013 and 20.05.2013 passed in Bail Application in S.C. No.1029/2012 by the 2nd Additional Session Judge (East) Karachi, in Crime No.276/2012 under section 302/34 PPC, registered at P.S. Saudabad, K.E., whereby the bail applications of the applicants were declined, the applicants have approached this Court seeking their release on bail subject to furnishing solvent surety.
3. The prosecution story as stated in the FIR is as follows:-
“With reference of above report number Roznamcha, I SIP Chaudhary Muhammad Ilyas, after proceeding U/S 174 Cr.P.C for Postmortem No.946/12, Abbasi Shaheed Hospital and after taking statement U/S 154 Cr.P.C returned back, which copy as under:- Dated 08.10.2012 at 2315 hours, the statement U/S 154 Cr.P.C. from Muhammad Ali S/O Munawar Ali, aged 30 years, resident of House No.B-330, Hussainabad, Malir Colony, Karachi, Mobile No.0300-2296188, CNIC No.42201-0715179-9 stated that I am residing with my family at above given address and am serving at CAA, Karachi Airport. The house is double storied. My brother Hatim Ali alongwith his family resides at Ground Floor, I reside at first floor of the said house with my father. On 08.10.2012 at 0800 hours, I went for my duty, my father was at home, I came back from my duty at 0800 hours of day and saw unusual cold drink bottle lying at stairs, I went upstairs, I went inside after opening the door, I saw that my father Munawar Ali S/O Qamar Ali aged about 58 years was lying dead over pillow at floor and further his hands and feet were tied, there was a tape on his mouth, there was pillow over it, the tie was around and the neck. In the room could drinks and other things were present. He informed Police Station Saudabad, who came there, saw the incident, took some notes in writing and sent the dead body of my father to Abbasi Shaheed Hospital through Edhi Ambulance for postmortem. Then thereafter I received the dead body for performing the necessities to bury him, thereafter on enquiry, I came to know that at about 01:30 day time, two women and one boy came as guests at my house. They have killed my father for unknown reason and run away. They were seen by the people of vicinity and also my brother at the times of coming and left the house of complainant. I want to take legal action against the culprits.”
4. Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the instant crime by the police. Per learned counsel, from perusal of the contents of the FIR, it is evident that it is an unseen incident, wherein the applicants have not been nominated, whereas no recovery whatsoever has been effected from the present applicants, who have been falsely implicated by the police in the challan on the alleged pointation of co-accused Fahad Hussain, who was reportedly arrested in some 13-D case. Per learned counsel, there is no eye witness of the alleged incident nor any recovery has been effected from the applicants, who have been falsely implicated by the police in the instant crime, whereas they are behind the bar since their arrest on 12.10.2012. Per learned counsel, in the FIR it has been reported that one boy and two girls entered in the house, whereas challan has been submitted against two girls and three boys. Per learned counsel, there is contradiction regarding cause of death of the deceased Munawar Ali, who died due to head injury, whereas, in postmortem report cause of death has been shown due to cardiac failure, which creates doubt in the prosecution story. It has been further contended that there is serious contradictions even in the prosecution witnesses examined by Court with regard to number of the accused persons whereas none of them is an eyewitness of the alleged incident. It has been prayed that both the applicants are of tender age who are students and have no previous history, and if they are kept behind the bar their entire career will be ruined. In support of his contention, learned counsel has placed reliance in the following cases:
1. Zaheer v. The State 2007 SCMR 1178
2. Muhammad Waseem v. The State 2012 SCMR 387
3. Allah Ditta v. The State 2012 SCMR 184
4. Muhammad Naeem v. The State 2011 YLR 2610
5. Muhammad Tariq v. The State 2012 YLR 397
6. Ejaz Ali v. The State 2009 MLD 773
7. Qudratullah v. The State 2011 MLD 403
8. GhulamMujtaba Qadri v. The State 2012 SCMR 662
9. Shabbir Ahmed v. The State 2010 MLD 948
5. Conversely, learned counsel for the complainant as well as learned Addl.P.G have submitted that applicants were arrested on 12.10.2012 on the pointation of one Fahad Hussain and as per recovery memo, mobile, cash, gold ring and bracelet were recovered from the applicants, therefore, there is a possibility that they might be connected with the instant crime. It is further stated that the offence is non-bailable, therefore, the applicants may not be released on bail.
6. I have heard learned counsel for the applicants, learned counsel for the complainant as well as learned Addl. P.G. From tentative assessment of the record and on perusal of the contents of FIR it is noted that it is an unseen crime, whereas, no recovery of any tangible material which may directly connect them with alleged crime appears to have been effected from the applicants, who are of tender age. There is no eyewitness of the alleged incident, whereas their alleged implication in the instant crime on the pointation of co-accused Fahad Hussain, who was admittedly under police custody, cannot be given any weightage at this stage. Case of the prosecution cannot be treated as free from doubt, whereas no incriminatory material has so far been produced by prosecution. I am of the opinion that the matter requires further inquiry. The applicants were accordingly admitted to bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lac) each with P.R. Bond in the like amount to the satisfaction of the learned trial Court vide short order dated 16.12.2013and these are the reasons for such short order.
7. Needless to observe that the observation made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
8. However, it is clarified that if, the applicants misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicants as per law.
J U D G E