ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 99 of 2017
Applicants: (1) Umer Imam s/o. Muhammad Naseem
(2) Muhammad Nabeel s/o. Muhammad Shakeel.
Through Mr. Saba Khan, Advocate.
Respondent: The State, through Mr. Abdullah Rajput, APG.
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Date of hearing: 27.02.2017
Date of order: 27.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicants/accused Umer Imam s/o. Muhammad Naseem and Muhammad Nabeel s/o. Muhammad Shakeel seek post-arrest bail in Crime No. 163 of 2016, registered at PS Gulbahar, Karachi under Section 302/34 P.P.C. Their earlier bail application in Sessions Case No. 990 of 2016 was heard and dismissed by the learned IIIrd Additional Sessions Judge, Karachi-Central, vide order dated 09.12.2016.
2. Briefly stated, the facts of the case are that on 18.10.2016 between 9.30 a.m. to 9.45 a.m. two unknown persons on motorcycle caused firearm injures to Mazhar Shah s/o. Iqbal Shah inside road of Jamia Imamia in front of Muhammadi General Store, Nazimabad No.2, Karachi, while driving Suzuki Pick-up bearing Registration No. CE-7342, who succumbed to injures.
3. The learned counsel for the applicants/accused has mainly contended that the accused are innocent and have falsely been implicated in this case; that there is delay of about 04 hours in lodging of F.I.R., for which no plausible explanation has been furnished by the complainant; that it was a blind murder and there is no direct or indirect evidence against the accused except extra-judicial confessional statement of co-accused Nafees-ur-Rehman; that there is no independent witness of recovery of alleged TT Pistols from accused Muhammad Nabeel and Umer Imam; as such, presumption of foisting the same cannot be ruled out; that co-accused Mst. Rubina Mazhar and Nafees-ur-Rehamn have been granted bail the learned trial Court vide orders dated 05.01.2017 and 13.02.2017; as such, the present accused are also entitled for the concession of bail on the principle of rule of consistency; that no specific role has been attributed to the present accused in commission of the alleged offence and the vicarious liability of accused, if any, shall be determined by the trial Court after trial; hence, the case of accused falls within the ambit of further inquiry; as such, the present accused may be released on bail. In support of his contentions, the learned counsel has placed his reliance on the cases of Raja Muhammad Younus vs. The State (2013 SCMR 669), The State through Deputy Director Anti-Narcotic Force, Karachi vs. Syed Abdul Qayum (2001 SCMR 14) and Ghulam Rasheed vs. The State and another [PLJ 2009 Cr. C. (Peshawar) 28].
4. On the other hand, learned APG has vehemently opposed this application on the ground that there were illicit relations between wife of deceased Mazhar Shah, namely, Mst. Rubnia with co-accused Nafees-ur-Rehman, who in connivance with present accused has committed pre-planned murder of deceased and from the possession of accused persons unlicensed TT Pistols have also been recovered, while the Pistol recovered from accused Umer is the crime weapon used in the instant case and the ballistic report is also positive.
6. I have considered the arguments advanced by the learned counsel for the accused and learned APG as well as perused the material available on record.
7. It appears that the names of accused Umer Imam and Muhammad Nabeel are not mentioned in the F.I.R. and both have been implicated in this case on the basis of statement of co-accused Nafees-ur-Rehman made by him before the police. However, at the time of arrest of accused Umer Imam and Muhammad Nabeel police recovered unlicensed TT Pistols from their possession. Although the F.I.R. has been lodged against unknown accused persons but it has surfaced in investigation that on the fateful day in connivance with co-accused Nafees-ur-Rehman being paramour of co-accused Mst. Rubina, the wife of deceased Mazhar Shah, the present accused Umer Imam committed his Qatl-e-Amd by means of firearm injury. As per the evidence available with the prosecution, the crime weapon was subsequently recovered by the I.O. from possession of accused Umer Imam was sent to FSL alongwith empty recovered from the spot and as per the report of FSL the empties were fired from the same pistol. As regard application of principle of rule of consistency, it may be examined here that co-accused Nafees-ur-Reham and Mst. Rubina have been granted post arrest bail by the trial Court as the parties have entered into compromise and patched up with each other and the legal heirs of deceased have recorded their no object for grant of bail to co-accused; therefore, principles of rule of consistency are not applicable to the case of present accused.
8. From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima-facie sufficient evidence is available against the accused Umer Imam to connect him with the commission of alleged offence, carrying punishment for death and imprisonment for life. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence. Hence, bail application of accused Umer Imam is dismissed.
9. So far as accused Muhammad Nabeel is concerned, no overt act has been assigned to him and the role of causing fire arm injury to deceased has not been attributed him. Under the circumstances, vicarious liability of said accused could be established only after recording the evidence. Hence the case of accused is one of further enquiry into his guilt covered under sub-section (2) of section; therefore, accused Muhammad Nabeel 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.
JUDGE
Athar Zai