Criminal Bail Applications No.836 of 2014
Present
Mr. Justice Aqeel Ahmed Abbasi
Date of hearing : 22.09.2014
Date of order : 22.09.2014
Applicant : Khurram through
Mr. Muhammad Ashraf Kazi,
Advocate
Versus
Complainant : Ghulam Abbas Jalbani through
Mr. Zulfiqar Ali Khan Jalbani, Advocate.
Respondent : The State through
Ms. Rahat Ahsan, DPG.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied by the order dated 29.08.2013 passed by the 2nd Additional Sessions Judge, Thatta, in Session Case No.748/2013 emanating from Crime No.80/2013 under Section 302,109 and 34 PPC registered at P.S. Makli, whereby the bail application of the applicant was dismissed. The applicant has approached this Court under Section 497 and 498 read with Section 561-A Cr.P.C. for seeking his release on bail.
2. The brief facts as stated in the FIR are as follows:-
“It is complained that I am editor in the daily Dawn Newspaper and reside at the above mentioned address my son namely Muhammad Rafiq Jalbani aged about 30 years accompanies by his wife Sindhu and children was residing at Plot No.3 Kamal Para, Katchi-Abadi Hashim Society Unit No.1 Makli, since last 3/4 months in the rented house, about 1-1/2 or 2 years ago my son Muhammad Rafiq was appointed as Project Manager by the Pakistan Medical Association for flood effected people in Noor village and he used to live there after working for ¾ months some differences arose with PMA on the reason of rehabilitating of un-effectees of flood and using faulty material. And the project Incharge of PMA Dr. Shoaib Subhani Sehwani was not giving authorities to my son Muhammad Refiq and was running the village through his contractor Bashir Joreji. Infact they were inducting Muhammad Rafiq to work with them. But my son refused later they removed services of my son Muhammad Rafiq, after that they tried to dispossess flood effectees from village but my son remained helping villagers upon which Dr. Shoaib Subhani and Basheer got annoyed on my son, they used to issue murderous threats through Zulfiqar Jokhio, Habibullah Memon and Sattar Brohi said, “if you did not leave to help flood effectees, we shall not spare you.” Yesterday on 26.07.2013 I was performing my duty in the office of Dawn Newspaper, in the meantime I received phone call of Ghulam Hussain S/o Muhammad Iqbal Khawaja and said that your son has been murdered by the armed personnels, so I reached at Makli, whereat I met with my daughter in law Sindhu who told that about 0800 hours, I was taking dinner in the Kitchen, my husband Muhammad Rafiq was sitting in the veranda of the house in the meantime door was knocked and I asked Muhammad Rafiq to see at door who opened the door no sooner did he open the door two fire shots were reported I came out of kitchen and witnessed that my husband Muhammad Rafiq was falling down on the floor inside the door, I rushed him and witnessed that blood was oozing out of his chest upon which I raised commotions, the neighbours each Wazir, Zaunr, Ali Muhammad Panhwer and others, who rushed to me and took my husband, but he died, they took the dead body to Hospital. On such facts by my daughter in law, I came to Makli Hospital where after conducting the Post Mortem, I received the dead body of my deceased son now have appeared to report that I suspected that accused Zulfiqar Jokhio, Habibullah Memon and Sattar Brohi and with the help of others on the instigation and support of Dr. Shoaib and contractor Bashir and thereby have murdered my son Muhammad Rafiq. I am complainant and investigation be made.”
3. After investigation, the case has been challaned, whereas, the applicant since his arrest is in jail custody.
4. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the instant crime by the prosecution inspite of fact that the applicant was not nominated in the FIR and has been implicated by the prosecution on the basis of alleged extra judicial confessional statement of the applicant before the police while in custody, whereas, the accused persons, who were nominated in the FIR have been let off by the police on financial consideration. Per learned counsel, there is no incriminating material available with the prosecution against the applicant, which may connect him with the alleged crime except some alleged CDR in respect of a mobile and sim, which are not in the name of the applicant nor even contained any contents, which may in any manner suggest that the present applicant has committed the alleged crime. Per learned counsel, such material has been foisted upon the applicant by the police, whereas, weapon allegedly recovered from the applicant was sent for chemical examination and as per such chemical examination report, it has come on record that the bullets received from the alleged crime scene were not fired from the pistol allegedly recovered from the applicant. Per learned counsel, this is an unseen crime, whereas, there is no eye witness nor any other material available with the prosecution, which may connect the present applicant with the alleged crime. Moreover, the matter requires further inquiry, hence the applicant is entitled to be released on bail subject to furnishing his surety. It has been further contended by the learned counsel for the applicant that under somewhat similar circumstances, bail has been granted by this Court to the co-accused namely Mst. Sindhu vide order dated 24.02.2014. In support of his contention, learned counsel for the applicant has placed reliance in the following case law:-
1) Karamat Hussain vs. The State 1972 SCMR 15
2) Syed Amanullah Shah vs. The State PLD 1996 SC 241
3) Abdul Qadir Motiwala vs. The State 2000 P.Cr.L.J 1734
4) Abdul Karim alias Baboovs. The State 2006 SCMR 813
5) Muhammad Asif vs. The State and another 2011 YLR 2722
5. Conversely, learned counsel for the complainant has opposed the grant of bail on the ground that since the applicant is required in a case under Section 302/109/34 PPC, whereas, CDR obtained by the prosecution shows that the applicant and the co-accused namely Mst. Sindhu remained in contact on mobile just before the alleged incident. Learned counsel submitted that name of the applicant was not reported in the FIR for the reasons that the complainant was infact misguided by the co-accused, however, during investigation, it transpired that the co-accused has committed murder of the deceased, who had relations with the co-accused Mst. Sindhu. It has been further contended by the learned counsel for complainant that there is sufficient material available with the prosecution in the shape of CDR mobile record, which reflects that the applicant was in continuous contact with Mst. Sindhu on mobile before the alleged incident took place, therefore, it cannot be ruled out that the applicant and the co-accused are involved in the commission of alleged crime. Learned counsel further submits that the authenticity of the CDR record at this stage cannot be examined as it requires deeper appreciation of evidence, hence, submits that the applicant may not be released on bail. Learned D.P.G has also supported the arguments of the learned counsel for complainant.
6. I have heard both the learned counsel as well as learned D.P.G and perused the record. From tentative assessment of the FIR and the material available on record. The applicant has been implicated by the prosecution on the basis of his extra judicial confessional statement before the police while in custody, whereas, in the challan reference to some CDR in respect of a mobile and sim alleged to have been recovered from the applicant has been made. It appears that neither the mobile nor the sim alleged to have been recovered and used by the applicant to contact the co-accused Mst. Sindhu is in the name of present applicant. In view of extracting of extra judicial alleged confessional statement by the police from the applicant while in custody in the instant case the possibility of having foisted the above material i.e. mobile, sim and CDR record cannot be ruled out, whereas, the weapon allegedly recovered from the applicant and the ballistic report thereof is also in negative and suggested that the bullets used and recovered from the scene of alleged crime were not fired from the pistol, which was allegedly recovered from the applicant. It appears to be an unseen crime, whereas, the prosecution has not been able to refer to any direct evidence, which may connect the present applicant with the alleged crime. The matter requires further inquiry and the false implication of the present applicant in the instant crime cannot be ruled out. The applicant is behind the bar since his arrest, whereas, investigation has been completed and challan has already been submitted, whereas, the prosecution has not examined any material witness, hence no useful purpose will be served by keeping the applicant behind the bar.
7. Accordingly, the applicant was admitted to bail subject to furnishing solvent surety in the sum of Rs.500,000/- (Rupees five lac) with P.R. Bond in the like amount to the satisfaction of the learned trial Court vide short order dated 22.09.2014 and these are the reasons for such short order.
8. Needless to observe that the observations 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.
9. However, it is clarified that if, the applicant misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant as per law.
J U D G E