ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1254 of 2016
Applicant: Muhammad Uzair Khan s/o. Muhammad Masood
Hanif Khan, through Mr. Raja Rashid Ali, Advocate.
Criminal Bail Application No. 1270 of 2016
Applicant: Syed Tanveer Hussain Jaffari @ Farukh s/o. Syed
Shakir Hussain Jaffari, through Mr. Muhammad Asif,
Advocate.
Criminal Bail Application No. 1279 of 2016
Applicant: Arshad Khan s/o. Hameed Khan,
through Mr. Chaudhry Waseem Akhtar, Advocate.
Criminal Bail Application No. 1360 of 2016
Applicant: Muhammad Adeel Khan s/o. Muhammad Ishtiaq
Khan, through Mr. Muhammad Khalid Khan,
Advocate.
Respondent: The State, through Ms. Rahat Ehsan, DPG.
Complainant: Mst. Shahnaz Parveen widow of Syed Ahmed Abu
Nasr Sikandar, through Mr. Mehmood Ahmed Khan.
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Date of hearing: 02.03.2017
Date of order: 02.03.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- By this common order, I intend to dispose of above listed bail applications, as the same have arisen out of F.I.R. No. 228/2016 registered at PS Al-Falah, Karachi under Section 302, 381-A. 34 P.P.C.
2. Through criminal bail applications No. 1254, 1270 & 1279 of 2016, applicants/accused Muhammad Uzair Khan, Syed Tanveer Hussain Jaffari @ Farukh and Arshad Khan, respectively have sought pre-arrest bail in aforesaid crime. Their earlier applications for grant of pre-arrest bail bearing No. 1754, 1719 and 1711 of 2016, respectively, were dismissed by the learned Sessions Judge, Karachi East, vide order dated 23.08.2016. They were granted ad-interim pre-arrest bail by this Court vide orders dated 31.08.2016, 02.09.2016 and 07.09.2016, respectively, now they seek confirmation of their bail. While, through criminal bail application No. 1360 of 2016, applicant/accused Muhammad Adeel Khan seeks post-arrest bail in aforesaid crime/ F.I.R. His earlier application for grant of post-arrest bail bearing No. 1879 of 2016 was dismissed by the learned Sessions Judge, Karachi East, vide order dated 09.09.2016.
3. Briefly stated, the facts of the case are that on 01.08.2016 at 0015 hours complainant Mst. Shahnaz Perveen lodged the aforesaid F.I.R. alleging therein that her son, namely, Syed Ali Faran was working as a Stock Broker at “Din Capital” and people used to invest amount in the said company through her son; however, due to falling down of prices in the stock exchange, there was loss to investors; therefore, the they were demanding their amount from her son. On 27.07.2016 at about 1945 hours, close friends of her son, namely, Fayyaz @ Nasir, Aziz, Farrukh, Arshad, Sagheer and Adeel alongwith 12/13 boys entered in her house situated at Anam Homes, Jamia Millia Road, Malir and started beating her son and kept on maltreating him till 3:00 a.m. who became unconscious and despite request of complainant her son was not allowed to be taken to hospital. It is also alleged that the accused persons also locked her daughters-in-law in a room, they searched the entire house and smashed the articles in the room and while leaving the home at 6:00 a.m. they took away Corolla Car bearing Registration No. L-3260, Laptop, three mobile phones, cash of Rs.45,000/-, as well as passport and other documents of her son Faran with them, extending threats of murder to her other sons, who were not present in the house at that time. Thereafter, son of the complainant was brought to Jinnah Hospital at 7.45 a.m. who succumbed to injuries in ICU ward.
4. The learned counsel for the applicants/accused have submitted that the accused are innocent and have falsely been implicated in this case by the complainant party with malice and ulterior motive; that there is delay of more than four days in lodging the F.I.R. and no plausible explanation has been furnished by the complainant for such inordinate delay; that on 28.07.2016 at 1640 hours report bearing No. 27 was made to the police by the complainant wherein names of accused persons were not mentioned but, subsequently, the names of accused person were nominated in the F.I.R. lodged by the complainant admittedly after due deliberation and consultation; that no specific role has been assigned to the accused person in commission of the alleged offence and at the most it is a case of vicarious liability; that as per initial in-door patient report, the medial officer suspected the case of deceased as of poisoning / alcohol and the postmortem of the deceased was not allowed to be conducted by the complainant party; that the complainant has also improved her case in her further statement recorded by the second investigating officer under section 161 Cr. P.C., so also, the statements of her sons and daughters-in-laws show the material contradiction and improvements; that the deceased was a defaulter of more than 4 Crors and 50 Lacs rupees of the people; as such, he under state of depression committed suicide, which plea is supported by the fact that ceiling fan was lying on the floor of room of deceased; that as per F.I.R. the accused persons kept on maltreating the deceased from 1945 hours to 0300 hours; however, as per medical report there was only one injury on the head of the deceased and no other injury was noticed on his person; that no witness of the locality has been cited as witness of the incident; that a fit case of further enquiry has been made out; therefore, the accused are entitled to the concession of bail. In support of their contentions, the learned counsel for the applicants have relied upon the case of Farzand Ali v. Taj and 2 other (2000 SCMR 1854), Muhammad Ayyub and others v. The State (1987 SCMR 1906), Khadim Hussain v. The State (1978 SCMR 146), Rehmat ullah alias Rehman v. The State and another (1970 SCMR 299) and Amjad Ameen v. The State (2010 YLR 2993).
5. On the other hand, learned counsel for the complainant has vehemently opposed these applications on the grounds that the accused persons are nominated in the F.I.R. who had persistently beaten the deceased and due to injury caused on his head, the deceased expired; that the witnesses have also corroborated the version of the complainant in all respects; that the CDR of accused Adeel Khan, Uzair and Fayyaz shows their availability at the place of occurrence at the relevant time; that the Toyota Corolla Car of the complainant party, was recovered on the pointation of accused Fayyaz; that the accused are involved in a heinous crime; as such, they are not entitled for the concession of bail.
6. The learned DPG for the State while adopting the arguments of learned counsel for the complainant has also opposed the grant of bail to accused.
7. In rebuttal, the learned counsel for the applicants have contended that the applicants are residing in the same vicinity, therefore, mainly on the basis of CDR they cannot be held guilty of alleged offence. They have also contended that the recovery of Toyota car on the pointation of accused Fayyaz from an open area is fake and there is no private mashir of the alleged recovery.
8. I have considered the arguments advanced by the learned counsel for the applicants/accused, learned counsel for the complainant and learned DPG as well as perused the material available on record.
9. It appears that before recording of F.I.R., the complainant lodged a report at P.S Al-Falah, which was incorporated in Roznamcha, vide entry No. 27 on 28.07.2016 at 4:40 p.m. alleging therein that on 27.07.2016 at 7:45 a.m. about 20 persons entered into her house and thrashed her son Faran and someone, out of them, hit him with a hard substance, which resulted in an injury on his head and he later on expired in hospital. The complainant did not name any accused in her said report. Subsequently, she lodged the F.I.R, admittedly with consultation, on 01.08.2016 at 00:15 a.m. wherein she has disclosed the names of accused persons, among 20 persons, identifying them as fast friends of her deceased son, who entered into her house at 7:45 p.m. and subjected her said son to torture for six hours till 03:00 a.m. However, in F.I.R. she did not attribute the alleged head injury of her deceased son to any accused person. Statement of P.W. Syed Ali Imran, the brother of deceased Faran, recorded under section 161 Cr. P.C. does not support the sequence of events taken place before/during the occurrence. It further appears that as per the contention of complainant the accused person had given beatings to deceased from 07:45 p.m. to 03:00 a.m. but the medical report discloses only one injury on the head of her deceased son. It is an admitted position that the accused were not armed with any weapon, there are general allegations against them and no specific role has been assigned to any of the accused. As per medical certificate of cause of death, the complainant party was not interested in getting MLO, while as per Patient’s Details of Accident & Emergency Department, JPMC, dated 28.07.2016, the case of the deceased was suspected as poisoning, alcohol and head injury. The post-mortem of the deceased was admittedly not conducted as the complainant party was not willing for the post-mortem of the deceased. The question of vicarious liability of the accused in regard to the commonness of their intention for committing alleged offence will be determined at the trial. In the circumstances of the case mentioned above, I have found the case against the accused one of further inquiry into their guilt as envisaged under subsection (2) of section 497 Cr. P.C.
10. For what has been discussed above, interim bail granted to applicants/ accused, namely, Muhammad Uzair Khan, Syed Tanveer Hussain Jaffari @ Farukh and Arshad Khan, vide orders dated 31.08.2016, 02.09.2016 and 07.09.2016, respectively is hereby confirmed on the same terms and conditions, while applicant/ accused, Muhammad Adeel Khan is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.3,00,000/- (Rupees Three Lacs only) and P.R. bond in the like amount to the satisfaction of Nazir of this Court.
11. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the accused on merits. In case accused in any manner try to misuse the concession of bail, it would be open for the trial Court to cancel their bail after issuing them the requisite notice.
JUDGE
Athar Zai