ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1829 of 2016
Applicant: Noor Ahmed alias Noora s/o. Din Muhammad,
Through Mr. Abdullah J. Narejo, Advocate.
Respondent: The State, through Ms. Seema Zaidi, APG.
Complainant: Saeed Khan s/o. Gulab Khan, through Mr. Zulfiquar
Ali Shaikh, Advocate.
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Date of hearing: 21.02.2017
Date of order: 21.02.2017
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O R D E R
Zafar Ahmed Rajput, J:- Through instant criminal bail application, the applicant/accused Noor Ahmed alias Noora s/o. Din Muhammad seeks post-arrest bail in Crime No. 96 of 2014, registered at PS Gulshan-e-Maymar, Karachi under Section 302/34 P.P.C. His earlier two bail applications in Sessions Case No. 2282 of 2014 on merit as well as on statutory ground were heard and dismissed by the learned Sessions Judge, Karachi-West, vide orders dated 19.04.2016 and 22.09.2016, respectively.
2. Briefly stated, the facts of the case are that on 25.06.2014 at 1210 hours complainant Saeed Khan s/o. Gulab Khan lodged aforesaid F.I.R., alleging therein that his elder brother, namely, Aamir informed him on phone that on 25.06.2014, he was sleeping in his house situated in Scheme No. 77 near Jonbhar Goth Graveyard, Gulshan-e-Maymar, Karachi, when at about 0100 he heard fire-shot, but he did not pay heed; however, when in the morning at about 0500 hours he tried to wake-up his brother, namely, Dilawar Khan he noted his brother lying dead having a bullet injury on his body and blood was oozing. During course of the investigation, on 08.08.2014 police arrested co-accused Sakina (wife of the deceased), who disclosed that her deceased husband was killed by the present applicant/accused, who was arrested on the same day and on his pointation crime weapon was also recovered.
3. The learned counsel for the accused has mainly contended that the accused is innocent and has falsely been implicated in this case; that there is delay of about 11 hours in lodging of F.I.R., for which no plausible explanation has been furnished by the complainant; that it was a blind murder whereas PW Amir recorded his statement 164 Cr.P.C. on 13.08.2014 implicating the accused; however, the same was recorded after about one month and 18 days of the alleged incident; that the accused was earlier arrested on 08.07.2014; however, complainant sworn an affidavit / undertaking stating therein that the accused was innocent and he did not want to proceed case against him, as such, the accused was released by the police but he was again arrested on 10.08.2014; that co-accused Mst. Sakina has been granted bail by the learned trial Court; hence, the accused is also entitled for the concession of bail on the ground of principle of rule of consistency, besides it is a fit case for further enquiry under Section 497(2) Cr.P.C. therefore, he may be released on bail.
4. On the other hand, learned APG has vehemently opposed this application on the ground that the accused in connivance with the wife of deceased Dilawar Khan has committed his pre-planned murder and on his pointation crime weapon has been recovered, while 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 may be relevant to mention that the learned counsel for the accused at the very outset has submitted that he is seeking bail on merit and neither he has taken the ground of statutory delay in bail application nor intends to take it in his arguments.
8. Although the F.I.R. has been lodged by the complainant against unknown accused persons; however, it has surfaced after the investigation that on the fateful day the applicant being paramour of co-accused Mst. Sakina, the wife of deceased Dilawar Khan, who firstly administered intoxicant in meal to her husband and when he became unconscious, the present accused committed his Qatl-e-Amd by means of firearm injury as it had come into knowledge of deceased that there were illicit relations between them. As per the evidence available with the prosecution, the crime weapon was subsequently recovered by the I.O. on the pointation of present accused in presence of two private witnesses, which was sent to FSL alongwith empty recovered from the spot and as per the report of FSL the empty was fired from the same pistol. It further appears that in order to prove the connection in between both the accused persons the I.O. during course of investigation also collected call data record of their mobile phones, which shows that they had conversation with each other.
9. As regard the contention of learned counsel for the accused that the accused was earlier let off on the basis of an affidavit of the complainant, suffice to say it that when sufficient evidence is collected against an accused, he is sent up for trial and letting him off during course of investigation for lack of evidence or even on the basis of any statement of complainant before completing the investigation does not mean that he cannot be re-joined in investigation subsequently, if at the latter stage sufficient evidence is collected to implicate him with the commission of offence. As regard application of rule of consistency, it may be examined here that co-accused Mst. Sakina has been granted post arrest bail by the trial Court being a female having suckling baby and her case falls within the first proviso of sub-section (1) of section 497 Cr.P.C.; therefore, principles of rule of consistency are not applicable to the case of present accused. 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 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, this bail application is dismissed.
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 accused on merits.
JUDGE
Athar Zai