ORDER SHEET

IN THE HIGH COURT OF SINDH, AT KARACHI.

Criminal Bail Application No. 748 of 2016

Date               Order with Signature of Judge                                       .                                             

 

For hearing of bail application.

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26.01.2017.

           

Syed Zafar Ali Shah, Advocate for applicant.

            Mr. Abdullah Rajput, APG.

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             Having rejected his first application for grant of pre-arrest bail bearing Bail Application No. 2374/2015, vide order dated 19.05.2016 and second application for grant of post arrest bail  in Sessions Case No. 1884/2013, vide order dated 26.05.2016, passed by the learned 3rd Additional Sessions Judge, Karachi West, the applicant/accused Ayaz Ahmed s/o. Ahmed Bux Soomro, through instant Criminal Bail Application seeks post -arrest bail in Crime No. 12/2013, registered at P.S Manghopir, Karachi, under Section 302/34 P.P.C.   

 

2.         Briefly stated, the facts of the prosecution case as narrated in the aforementioned FIR lodged on 15.01.2013 at 1630 hours are that the complainant Abdul Aleem s/o. Muhammad Soomar was present at his house, when he was informed on phone that someone had fired bullet shots on his younger brother Abdul Waheed, on such information he alongwith his maternal cousin Javed went to the house of his parents, situated at Mir Muhammad village, where he saw that the dead body of his brother was lying there and blood was oozing from his body. He took dead body of his brother on Chhipa ambulance to PS Manghopir and from there to Abbasi Shaheed Hospital for postmortem and then he brought the dead body of his brother to house for burial and after consultation he reported the matter by showing doubt that his brother was killed by his in-laws, namely, (1) Ayaz Ahmed, (2) Riaz Ahmed s/o. Ahmed Bux and (3) Abu Bakr s/o. Abdul Wahid because a family dispute was going on with them as the wife of his deceased brother was in her parents’ house since one year and they had also lodged an FIR at PS Shikarpur against them, which was pending and they had come twice to their home to kill them in their absence and they had also issued threats. 

 

3.         The learned counsel for the applicant/accused has submitted that the applicant is innocent and has falsely been implicated in this case due to enmity; that even from the contents of FIR it is clear that the same has been lodged by the complainant after consultation; that there is no eye witness of the incident; that earlier the case was investigated by SIP Ali Muhammad, who recommended the case for disposal under “A-Class” and subsequently the same was investigated by SIO Wahid Bux Bozdar and thereafter by SIP  Muhammad Rafiq Tanoli; that even from the contents of FIR the guilt of the applicant requires further enquiry. 

 

4.         On the other hand, learned APG have opposed this application on the ground that there is an eye witness, namely, Baby Mubina alias Moona d/o Abdul Qayyoom aged about 10 years, who is niece of the deceased Abdul Waheed and her statement under Section 161 Cr.P.C. was recorded by the I.Os. on three times i.e. 15.02.2013, 29.03.2013 and 09.07.2013, wherein she has alleged that she was going with her deceased uncle Abdul Waheed on motorcycle, when two persons namely Ayaz and Abu Bakr fired upon him. He has further submitted that the enmity between the parties has not been denied by the applicant; therefore, he is not entitled for concession of bail.

 

5.         I have heard the learned counsel for the parties and perused the material available on record.

6.         It is an admitted fact that as per FIR the alleged murder of deceased Abdul Waheed is blind and the FIR has been lodged after consultation with delay of three days. The statement of alleged eye witness Baby Mubina alias Moona was recorded firstly on 15.02.2013 after one month of the alleged incident and even it is not mentioned in the FIR that if said baby Mubina was travelling with deceased Abdul Waheed on motorcycle, though the F.I.R. was lodged admittedly after consultation. Under the circumstances, the guilt of the present applicant/accused requires further enquiry as envisaged under Sub-Section 2 of Section 497 Cr.P.C.; Hence, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.200,000/- with P.R. Bond in the like amount to the satisfaction of the trial Court.   

 

7.         Needless to say that the observations made by this Court are tentative in nature and shall not influence the trial Court while deciding the case on merits and in case the applicant misuses the concession of bail the trial Court shall be at liberty to cancel the same after giving notice to the applicant, in accordance with law.

 

JUDGE

Athar Zai