ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

Criminal Bail Application No. 1317 of 2016

 

Applicant:                             Syed Azam Raza Naqvi s/o. Syed Kazim Raza Naqvi,

                                                through Mr. S. Ghulam Hasnain, Advocate.

 

Respondent:                          The State, through Mr. Abdullah Rajput.

 

Complainant:                        Syed Shahid Raza Naqvi s/o. Syed Ali Kousar Naqvi,

                                                through Ms. Gul Qadam Malik, Advocate.  

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Date of hearing:                    09.02.2017

Date of order:                        09.02.2017

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O R D E R

 

Zafar Ahmed Rajput, J:- Through instant criminal bail application, the applicant/accused Syed Azam Raza Naqvi s/o. Syed Kazim Raza Naqvi seeks post arrest bail in Crime No. 156 of 2014, registered at PS Malir City, Karachi under Section 302/109/34 P.P.C. His earlier application for grant of bail in Sessions Case No. 616 of 2016 was heard and dismissed by the learned IVth Additional Sessions Judge, Karachi South, vide order dated 12.08.2016.

 

2.         Briefly stated the facts of the prosecution case as narrated in the aforementioned F.I.R. lodged by the complainant, namely, Syed Shahid Raza Naqvi s/o. Syed Ali Kousar Naqvi on 01.09.2014, are that his younger sister Mst. Zehra was married with Muhammad Azam s/o. Muhammad Kazi Naqvi (the applicant) five years ago and out of said wedlock two daughters were born out. Azam used to quarrel with his sister, as he was jobless. On 29.08.2014 at about 2040 hours he received phone call from his brother-in-law, who directed him to take his sister. He alongwith his brother Zahid, Asif, Raza and sister went to his sister’s house, where they saw that the dead body of his sister was lying on the floor of her bed room and one 30 bore pistol was also found under her head. It is further alleged by the complainant that his brother-in-law Azam after consulting with his sisters Zakia Fatima and Abdida Fatima @ Yasmeen committer murder of his sister and ran away from the spot.  

 

3.         The applicant surrendered before police on 13.09.2014, while co-accused Zakia Fatima and Abdida Fatima @ Yasmeen were let off by the police.

 

3.         The learned counsel for the applicant/accused has submitted that the applicant is innocent and has falsely been implicated in this case; that the incident is unseen one and the applicant has surrendered himself before police;  that infact deceased Zehra, the wife of the applicant, committed suicide but the complainant maliciously converted the case of suicide into a case of murder by falsely implicating the applicant; that no direct or even circumstantial evidence is available with the prosecution to establish the alleged commission of murder; that even otherwise it is a fit case of further enquiry; hence, the applicant is entitled to the concession of bail. In support of his contention, the learned counsel for the applicant has placed his reliance upon the cases of Nasar vs. The State and others (2017 SCMR 130), Anwar Ali vs. The State (2016 P.Cr.L.J. 1514), Habibullah vs. The State (2011 MLD 1616), Imamuddin vs. The State (2010 P.Cr.L.J. 331) and Hayatullah vs. Lal Badshah and another (PLD 2009 Peshawar 28).

 

4.         On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the alleged incident has taken place in the house of the applicant, who has failed to furnish any explanation with regard to the availability of firearm with his deceased wife, if she had committed suicide. She has further contended that the applicant himself did not report the incident to police station, if it was a case of suicide, on the contrary he ran away from his house, which shows that the applicant has taken a false plea of suicide. 

 

5.         The learned APG has adopted the arguments of learned counsel for the complainant.

 

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

 

7.         It is an admitted position that the alleged incident has taken place at the house of accused. The learned counsel for the applicant has given much stress on the point that it was infact a case of suicide, but it is also an admitted position that the applicant did not report the incident to police station, if it was a case of suicide, on the contrary he ran away from his house after the alleged incident. It is the case of the prosecution that deceased Zehra died due to firearm shot made by the accused. The P.W. MLO, who conducted postmortem of deceased Zehra has yet not been examined by the trial Court; hence at this stage of the case the accused has nothing to discard the evidence available with prosecution against him. The alleged offence being punishable for death falls within the prohibitory clause of section 497 Cr.P.C. Any defence plea or hypothetical question which could be imagine, 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. The case-law cited by the learned counsel for the accused being distinguishable is not applicable to the case of present accused. Hence, this application is dismissed.

 

8.         The learned trial Court is however, directed to examine P.W. MLO Dr. Nasreen Qamar within thirty (30) days hereof. The accused is at liberty to repeat bail application before the trial Court on merit, if so advised, in case any fresh ground is available to him after recording evidence of said MLO by the trial Court.

           

9.         Above are the reasons of my short order dated 09.02.2017, whereby this application was dismissed.

JUDGE

Athar Zai