ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1298 of 2013
Applicant: Khwaja Muhammad Asghar s/o. Muhammad Siddik,
through M/s Khwaja Naveed Ahmed and Ashiq
Muhammad, Advocates.
Respondent: The State, through Mr. Zahoor Shah, APG.
Complainant: Imam Bux, through Mr. Muhammad Munir Ahmed,
Advocate.
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Date of hearing: 31.01.2017
Date of order: 31.01.2017
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O R D E R
Zafar Ahmed Rajput, J:- Through instant Criminal Bail Application, the applicant/accused Khwaja Muhammad Asghar s/o. Muhammad Siddik has sought pre-arrest arrest bail in Crime No. 244 of 2013, registered at PS Gulistan-e-Jauhar, Karachi under Section 302/34 P.P.C. He was granted ad-interim pre-arrest bail by this Court vide order dated 14.10.2013, now he seeks confirmation of his bail.
2. Briefly stated, the facts of the case are that on 25.04.2013 at 1655 hours complainant Imam Bux lodged aforementioned FIR alleging therein that on 23.04.2013 at about 12:00 p.m. he alongwith Javed Aziz, Ali Akbar and Ali Gohar was available at the estate agency of his nephew i.e. “Al-Ghafoor Estate Agency” situated at Sher Muhammad Baloch Goth, Block-10, Gulistan-e-Jauhar, Karachi, when four persons on two motorcycles came there and accused Tariq Nasim pointing pistol directed the complainant and Javed Ali to keep silent, while applicant/accused alongwith two unidentified persons went inside the room where Akbar and Gohar were sitting and on the instigation of applicant/accused the unknown accused fired upon Akbar and then all the four persons ran away on motorcycles. Injured Akbar was shifted to Darul Sehat Hospital but he succumbed to injuries.
3. The learned counsel for the applicants/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case by the complainant party due to malice and ulterior motive, as the deceased was a member of Land Grabbing Mafia and the applicant/accused struggled against land grabbers up to the Supreme Court; that there is inordinate delay of about 2 days and 7 hours in lodging the F.I.R. for which no plausible explanation has been furnished by the complainant; that as per Computer Data Record of the applicant, at the time of alleged incident he was present at Civic Centre Karachi near to his office; that the applicant is an old man of more than 70 years and also suffering from several diseases; that there is no independent witness of the incident; that the first I.O. after the investigation submitted report under Section 173 Cr.P.C. for disposal of case under “A-Class” but the learned Judicial Magistrate did not accept the same and directed him for the submission of challan; that the statement of witnesses namely Ali Gohar and Javed Aziz were recorded under Section 164 Cr.P.C. in absence of applicant; the applicant has been assigned the role of instigator; hence, the instant case is a fit case for further enquiry and the applicant is entitled for the concession of bail. In support of his contentions, learned counsel for the applicants has placed reliance upon the cases of Abdul Shakoor vs. The State and 6 others (1982 SCMR 970), Farid Ahmed Bhatti vs. The State (1999 P.Cr.L.J. 1237 Lahore), Mawasi Khan vs. The State (1969 SCMR 289), Ali Sher and others vs. The State (2008 SCMR 707) and Dilmir and another vs. the State & Muhammad Munir vs., the State (1970 SCMR 840).
4. On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the co-accused at the instigation of applicant/accused have committed murder of deceased Ali Akbar as such, he is not entitled for the concession of bail; that the applicant has been nominated in the F.I.R. by name; that from the statements of witnesses recorded under Section 161 Cr.P.C. presence of the applicant and instigation to co-accused has been established; that the incident has taken place in the estate agency of deceased as such the persons available in the estate agency are natural witnesses; that the old age did not entitle the applicant for concession of bail; that the first I.O. has wrongly recommended disposal of case under “A-Class” and the learned Judicial Magistrate has rightly ordered for the submission of challan; hence, the applicant is not entitled for the concession of bail. In support of his contentions, the learned counsel for the complainant has placed his reliance on the cases of Allah Bachayo and another vs. The State (2009 P.Cr.L.J. 503), Mazhar Hussain vs. The State (2009 MLD 747), Ghulam Nabi vs. The State (1996 SCMR 1023), Dildar Baig vs. The State (1998 SCMR 358), Allah Bachayo and others vs. The State (2009 SCMR 1352), Sher Bahadur vs. Haji Ghaffar Ali Khan and the State (1999 SD 145), Muhammad Bashir vs. The State (2000 SCMR 78), Pirdad vs. Muhammad Umar and another (1992 P.Cr.L.J. 122) and Muhammad Din vs. The State (1998 SCMR 1).
5. The learned APG while adopting the arguments of the learned counsel for the complainant has also opposed this application.
6. I have considered the arguments advanced by the learned counsel for the parties and also perused the material available on record.
7. The applicant/accused has been nominated in the Crime with the role of instigation to other accused, who allegedly fired at the deceased Ali Akbar. F.I.R. is silent about the fact of identifying the person, who fired at the deceased at the instigation of applicant/accused. The incident is alleged to have been taken placed in an estate agency in presence of many persons but none of the accused person was apprehended at the spot. Applicant was admittedly not armed with any weapon, who is admittedly more than 70 years of age. As per investigation, the deceased was a member of Land Mafia. The delay of 2 days and 7 hours in lodging the F.I.R. cannot be ignored in the peculiar circumstances of the case, which shows a long history of applicant’s litigation against the land grabbers up to the Honourable Supreme Court of Pakistan. The vicarious liability of applicant to kill the deceased could only be established by the trial Court after thorough probe into the matter. Case of applicant, in circumstances, is one of further enquiry into his guilt covered under sub-section (2) of Section 497 Cr.P.C. Case-law cited by the learned counsel for the complainant being on different footings cannot be applied in the case of applicant/accused. Hence, the interim pre-arrest bail granted to the applicant/accused is confirmed on the same terms and conditions.
JUDGE
Athar Zai