ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 43 of 2017
Applicant: Naseem Khan s/o. Abdul Ghafoor,
Through Mr. Khwaja Naveed Ahmed, Advocate.
Respondent: The State, through Ms. Rahat Ehsan, DPG.
Complainant: Bakht Jameel s/o. Bakht Ameen, through Mr. Mazhr
Ali Khan, Advocate.
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Date of hearing: 20.02.2017
Date of order: 20.02.2017
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O R D E R
Zafar Ahmed Rajput, J:- Through instant criminal bail application, the applicant/accused Naseem Khan s/o. Abdul Ghafoor seeks post-arrest bail in Crime No. 353 of 2016, registered at PS Jackson, Karachi under Section 302/34 P.P.C. His earlier bail application bearing No. 2208 of 2016 was heard and dismissed by the learned Additional Sessions Judge-IV, Karachi-West, vide order dated 19.12.2016.
2. Briefly stated, the facts of the case are that on 23.07.2016 at 0320 hours complainant Bakht Jameel s/o. Bakht Ameen lodged aforesaid F.I.R., alleging therein that on 22.09.2016 at about 1930 hours applicant/accused Naseem Khan alongwith co-accused persons, namely, Muhammad Naeem s/o. Iban Ameen, Noman s/o. Muhammad Naeem and Muhammad Khan s/o. Abdul Ghaoor entered into their house, situated near K.M.C. Dispensary, Pidar Ground, Qasim Shah Road, Kemari and demanded cost of common wall from his father and on reply of his father that the amount had already been paid, they all became angry and started beating him with fists and kicks, who fell down and died at the spot. Thereafter, the applicant/accused was arrested on 24.09.2016.
3. The learned counsel for the accused has mainly contended that the accused is innocent and has falsely been implicated in this case by the complainant party; that there is a delay of about 8 hours in lodging of F.I.R., which makes the entire prosecution case doubtful, even otherwise consultation and deliberation before lodging of F.I.R. cannot be ruled out; that deceased Bakht Ameen is the step brother of co-accused Muhammad Naeem being a son from a different mother, while present accused Naseem is brother-in-law of co-accused Muhammad Naeem, who lived in his own house and even he did not have any knowledge of alleged dispute, which suddenly erupted between two brothers; that deceased Bakht Ameen died of cardiac arrest and the cause of death could not be ascertained by the MLO and initially it was kept reserved; however, after receipt of the clinical report, the MLO has given his opinion, in view of findings and circumstantial factors with regard to the cause of death, as “unnatural”; that the accused himself is heart patient and also suffers from mental diseases and under the circumstances it is a fit case for further enquiry under Section 497(2) Cr.P.C. for the grant of bail to accused.
4. On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the accused is nominated in the F.I.R. with specific role, he entered into the house of the deceased alongwith co-accused persons and made quarrel over payment of cost of common wall, thereafter, they hit him with kicks and fists, who died at the spot; that the delay of 8 hours in lodging of F.I.R. is natural as, after the incident, the complainant took his deceased father to Keamari hospital, where after examining doctors declared him dead and, thereafter, on the advice of the doctors he took his deceased father to civil hospital and then he lodged the F.I.R.; that the accused is a hardened, desperate and dangerous criminal as he is involved in number of murder as well as attempt to murder cases; that the absconding accused are persistently appearing to the door of the complainant and harassing him for the withdrawal of F.I.R. lodged by him and in this regard C.P. No. S-2190/2016, filed by the complainant against the harassment and for the protection is already pending adjudication before this Court.
5. The learned DPG has also opposed this application. She has submitted that besides present case, the accused is involved in (i) Crime No. 26/1999 under Section 324/337-A (i) P.P.C. of PS TPX, (ii) Crime No. 78/1998 under Section 302 P.P.C. of PS TPX, (iii) Crime No. 205/2004 under Section 324 P.P.C. of PS Jackson and (iv) Crime No. 334/2004 under Section 324 P.P.C. of PS Jackson. She has also contended that since the accused has been nominated in the F.I.R. by name and no case of further enquiry has been made out, he is not entitled for the bail.
6. I have considered the arguments advanced by the learned counsel for the accused, complainant and learned DPG as well as perused the material available on record.
7. It appears that the accused has been assigned role of causing kicks and fists blows to deceased alongwith co-accused, namely, Muhammad Naeem, Noman and Muhammad Khan, who have been shown absconders in the challan. The alleged incident has taken place in the house of deceased allegedly on the refusal of deceased from payment of cost of common wall. Although there is delay of 8 hours in lodging the F.I.R. but the same has been explained by the complainant in the F.I.R. As per his criminal record, the accused is nominated in four other F.I.Rs., registered at PS Jackson (old PS TPX) under Sections 302 and 324 P.P.C., which shows that he is a habitual offender; hence, there is an apprehension that after obtaining bail, the accused may misuse the concession of bail by causing harassment to the complainant. Such petition filed by the complainant bearing C.P. No. S-2190/2016 is already pending adjudication before this Court against the harassment allegedly being caused by the absconding accused persons to him. As regards the ground of illness, suffice to say it that the accused is allegedly suffering from common diseases, which could be conveniently treated in jail hospital and the same do not appear to be life threatening. The alleged offence is punishable for death. From the tentative assessment of the evidence in the hands of prosecution, no ground for further enquiry has been made out. Accordingly, this bail application is dismissed.
JUDGE
Athar Zai