Suit No

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 1502 of 2016

Applicant: Rozi Khan s/o. Pam Jan, through Mr. Ashiq Ali

Mangan, Advocate.

Respondent: The State, through Mr. Abdullah Rajput, APG a/w

SIP Ghulam Mustafa PS Peerabad, Karachi.

Complainant: Faqeer Muhamamd s/o. Sher Muhamamd Khan

(nemo)

-----------------

Date of hearing: 07.02.2017

Date of order: 07.02.2017

-----------------

O R D E R

Zafar Ahmed Rajput, J:- Through instant criminal bail application, the applicant/accused Rozi Khan s/o. Pam Jan seeks post arrest bail in Crime No. 133 of 2014, registered at PS Peerabad, Karachi under Section 302/34 P.P.C. His earlier application for gran of bail was heard and dismissed by the learned IX^th Additional Sessions Judge, Karachi West in Sessions Case No. 2647 of 2014, vide order dated 24.08.20146.

2. Briefly stated, the facts of the prosecution case are that on 18.03.2014 complainant Faqeer Muhamamd s/o. Sher Muhamamd Khan received a phone call that his nephew, namely, Fazal Wahid aged about 16/17 years received fire arms injuries and shifted to Abbasi Shaheed Hospital for treatment. The complainant rushed to the hospital where he found his nephew in critical condition; hence he shifted him to Agha Khan Hospital, where he succumbed to injuries during treatment on 19.03.2014. As per complainant, he came to know that on 18.03.2014 his said nephew was coming from Madarsa to his house when he reached inside street No. 9 near Al-Huda Masjid, Muslimabad No.2, Qasba Colony one person, namely, Rozi Khan s/o. Pam Jan alongwith his accomplices opened fire upon him with fire arm weapons with intention to kill him due to which he sustained injuries and later on died.

3. The learned counsel for the applicant/accused has submitted that the applicant is innocent and has falsely been implicated in this case; that there are general type of allegations and no specific role has been attributed to accused and even no motive has been alleged by the complainant for causing death to his nephew; that the alleged incident took place on 18.03.2014 at 1045 hours while F.I.R. was lodged on 20.03.2014 at 0145 hours, wherein no name of eye witness has been disclosed; however, later on 21.03.2014 statement of witness, namely, Mian Saeed Jan was recorded by the police under Section 161 Cr.P.C., who disclosed entire different story in his statement claiming himself to be eye witness of the incident, otherwise no direct or indirect evidence is available against the accused; that the accused was arrested on 29.03.2014 and since then he is confined in jail and his earlier bail application filed on merits as well on statutory ground of delay was dismissed by the learned trial Court observing that the applicant is a hardened, desperate and dangerous criminal; that the criminal record of the accused shows that only one F.I.R. was registered against him and that was of the year 1993 under Section 14 EHO; however, after his arrest two further cases under Section 9(c) of CNS Act, 1997 and 23(i)-A of Sindh Arms Act, 2013 bearing Crimes No. 147 and 148 of 2014, respectively, were registered against him by Peerabad police; that on merits the case of the applicant squarely falls within the purview of further enquiry, even otherwise he is entitled for the concession of bail on the statutory ground.

4. On the other hand, learned APG has strongly opposed this application on the ground that though the name of the eye witness is not mentioned in the F.I.R. but subsequently police recorded statement of eye witness of the incident, namely, Mian Saeed Jan, who was present at the occurrence and in his statement he has given full account of the incident; that the accused has remained involved in case of theft and the present incident is also outcome of a Wardat of theft committed by the accused for that a Faisla was made by the Ilaqa people; however, that Faisla was not accepted by the accused and in retaliation he committed murder of deceased nephew of the complainant; that when the accused was arrested he was found in possession of narcotic and illegal arms; therefore, two further cases were registered against him; hence, on account of rider clause as contained in the 4^th proviso of Section 497 Cr.P.C., the accused being hardened, desperate and dangerous criminal is not entitled for the concession of bail even on statutory ground.

5. I have considered the arguments advanced by the learned counsel for the parties and also perused the material available on record.

6. After receiving this criminal bail application, notices were issued to the complainant; however, the same received un-served. Today also report has received that complainant has shifted to some unknown place and his present whereabouts are not known and in this regard statements of two witnesses of the locality have also been recorded and placed on record by the SHO of PS Peerabad, Karachi.

7. It appears that the alleged incident took place on 18.03.2014 while F.I.R. was lodged on 20.03.2014, with delay of 1 day and 15 hours, nominating the applicant as an accused, but motive for causing death to deceased and the name of eye witness, namely, Mian Saeed Jan, have not been mentioned in the F.I.R. The record shows that the statement of alleged eye witness, namely, Mian Saeed Jan was recorded by I.O. under Section 161 Cr.P.C. on 21.03.2014. There appears only one F.I.R. registered against the accused prior to instant case and that is of the year 1993, while two cases were registered against him by Peerabad police after his arrest on 29.03.2014 in present case.

8. It is now well-settled principle of law that an accused has a statutory right of being enlarged on bail if he has continuously remained under detention for a period over two years for an offence punishable with death and whose trial for such offence has not concluded. Only ground on which said right can be declined is that accused is either previous convict or that he is hardened, desperate or dangerous criminal. No hard and fast rule could be enunciated for holding as to when a person can be said to be a desperate, dangerous and hardened criminal. It would depend upon facts of each individual case. In order to determine whether a person is hardened or dangerous criminal the Court may take following factors into consideration:

(i) Nature of accusation and conduct of accused at the time of alleged incident,

(ii) Previous record of the accused which may include his earlier prosecution, and

(iii) The material before the trial Court and with the Investigating Agency and also the reports of police and jail authorities.

9. In the instant case, the F.I.R. does not disclose the nature of accusation and conduct of accused at the time of alleged incident. Merely on the basis of registration of an F.I.R. under Section 14 EHO, prior to the instant case, and in absence of any material before the Court or with the investigating agency against the accused, he cannot be held as hardened, desperate and dangerous criminal to deprive him from right of bail on statutory ground under 4^th proviso of section 497 Cr.P.C. The record does not show that the delay in trial has occurred due to any act of the accused; hence he is admitted to bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Hundred Thousand only) with P.R. Bond in the like amount to the satisfaction of the trial Court.

10. Needless to mention here that the observations made herein-above are tentative in nature and would not influence the trial Court while deciding the case of applicants on merits and if the applicant in any manner tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.

JUDGE

Athar Zai