Suit No

O R D E R SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 474 of 2016

Applicant: Abdul Moeed s/o. Allah Buksh.

Through Mr. Saadat Hassan, Advocate.

Respondent: The State, through Mr. Ms. Rahat Ehsan, DPG.

Complainant: Mst. Aaqil Lana w/o Zarnosh

Through Mr. Meher Qadir Khan, Advocate.

Date of hearing: 13.03.2017

Date of order: 13.03.2017

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O R D E R

ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused S.H.O/S.I.P Abdul Moeed s/o. Allah Bukhsh has sought pre-arrest bail in Crime No. 27 of 2014, registered at P.S. Peerabad, Karachi under Section 365/302/34 P.P.C. His first bail application bearing No. 333 of 2014 was dismissed by the learned III^rd Additional Sessions Judge, Karachi-West for non-prosecution, vide order dated 16.05.2014. Thereafter, he was granted protective bail by this Court in his second bail application bearing Criminal Bail Application No. 1131 of 2014, vide order dated 07.07.2014, whereafter he approached the learned Sessions Court, Karachi-West for grant of pre-arrest bail by filing criminal bail application No. 1273 of 2014, which was heard and dismissed by the learned IX^th Additional Sessions Judge, Karachi-West, vide order dated 19.03.2016. Thereafter, he filed the instant Criminal Bail Application, wherein he was granted ad-interim pre-arrest bail by this Court, vide order dated 07.04.2016, now he seeks confirmation of his bail.

2. Briefly stated, the facts of the case are that on 22.01.2014 at 0020 hours complainant Mst. Aaqil Lana w/o Zarnosh lodged aforesaid F.I.R. alleging therein that on 12.10.2013 her son, namely, Haider Ali was sitting in the stand of Yousuf Zai Coach, when one police mobile bearing No. 7062 reached there, wherein ASI Mehboob Kalhoro, Driver Sultan and one Tahir were sitting, who boarded Haider Ali in the said mobile and took him to police station. On receiving such information, the complainant alongwith others reached coach stand, where Abdul Rehman, Anwar Jan, Asad Khan, Bakht Manosh and Akbar were present, who told her that in their presence police officials took away Haider Ali, whereafter complainant alongwith her husband and daughter came at PS where Haider Ali was present. SHO of the PS (applicant/accused) asked the complainant party that Haider Ali shall be set free next morning. However, Haider Ali was not released by the police.

3. Thereafter, on 28.02.2014, the complainant party identified a picture of a deadbody in Edhi Centre as of Haider Ali, whose deadbody, as per record of Edhi Centre, was found lying on 14.10.2013, near Love Lane Bridge at Lyari Express Way and, subsequently, buried in Edhi graveyard as unidentified. Later, on 12.03.2014 exhumation was conducted in presence of Magistrate and the sample of complainant, her husband and deadbody were sent for DNA test to Institute of Bio-medical and Genetic Engineering Islamabad and as per report of the said Institute, dated 29.03.2014, the deadbody was of Haider Ali.

4. The learned counsel for the applicant/accused has mainly contended that the accused is innocent and has falsely been implicated in this case by the complainant party due to malice and ulterior motive; that the deceased Haider Ali had criminal record, and the family members of the complainant party are narcotic dealers, against whom several F.I.Rs. are registered and another son of complainant, namely, Sardar was also convicted by the concerned Court in narcotic case and due to malice and ulterior motive the present accused he has been involved in this case falsely; that infact the deceased died due to road accident, which fact is also evident from postmortem report; that there is inordinate delay of 100 days in lodging of the F.I.R. for which no plausible explanation has been furnished by the complainant; that all the witnesses are close relatives of the complainant and no independent witness has been cited; that the names of alleged eye witnesses were not disclosed by the complainant in the criminal petition under Section 491 Cr.P.C. bearing No.1033/2013, filed before the learned Sessions Judge, Karachi-West or in the Constitutional Petition No. D-5004/2014, filed before this Court; however, later on after consultation and deliberation their names have been mentioned in the F.I.R.; that no motive behind alleged kidnaping and murder of the deceased has been disclosed by the complainant; that none of the PWs except complainant has taken the name of accused; that no specific role has been attributed to the accused except that he was SHO of PS Peerabad at the time of alleged abduction of the deceased; hence, it is a fit case of further enquiry; that the accused is attending the trial Court regularly and has not misused the concession of bail; that the challan has been submitted and accused is no more required for the purpose of further investigation; therefore, accused is entitled for the confirmation of the bail.

5. On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the deceased was taken away by the police officials in presence of eye witnesses and later on he was seen by the complainant party at PS; however, after some time his deadbody was found; that the complainant approached the concerned Sessions Judge by filing Cr. Misc. Application No. 1033/2013, whereafter an application was made to DIG West and then C.P. No. D-5004/2013 was filed, whereafter the instant F.I.R. was lodged, which was initially cancelled under “A-Class”; however, after re-investigation challan has been submitted against accused persons; that the complainant has no motive to implicate the accused falsely in a murder case; that pre-arrest bail is an extra-ordinary relief which is to be granted in extraordinary situation, where prosecution is motivated by any consideration or mala fide; therefore, the accused is not entitled to concession of bail. In support of his contentions, the learned counsel for the complainant has placed his reliance on the cases of Muhammad Yousuf Butt vs. P.C. Abdul Lateef Shar and another (2012 SCMR 1945), Malik Zafar Abbas vs. Agha Raza Abbas Qazilbash and another (PLD 2002 SC 539), Muhammad Akram and another vs. The State (1993 P.Cr.L.J. 1820), Ejaz Khan vs. The State (2001 MLD 1127), Murad Khan vs. Fazal-e-Subhan and another (PLD 1983 SC 82), Muhammad Safdar vs. The State (NLR 1983 SCJ 205), Altaf Hussain vs. The State (2014 P.Cr.L.J. 650), Muhammad Azam vs. The State (1996 SCMR 71) and Muhammad Arshad and another vs. The State and another (1996 SCMR 74).

6. The learned DPG for the State while adopting the arguments of the learned counsel for the complainant has also opposed grant of bail to the accused, on the ground that prima facie accused is connected with the alleged offence and eye witnesses have also seen the deceased son of the complainant being boarded in police mobile, whereafter his deadbody was found.

7. I have considered the arguments advanced by the learned counsel for the accused and complainant and learned D.P.G. for the State, as well as perused the material available on record.

8. It is alleged that the deceased son of complainant, namely, Haider Ali was picked up by the police from Yosuf Zai Coach Stand on 12.10.2013 in presence of witnesses; however, all the witnesses cited in the F.I.R. are closed relatives of the complainant. The record further shows that the complainant, before lodging of the aforesaid F.I.R., had filed a Constitutional Petition bearing No. 5004 of 2013 before this Court for the production of her said son, but she did not disclose the name of the witnesses in the petition who had seen the police taking her said son in police mobile, so also, in her said petition she did not claim to have seen her said son in police lock-up of P.S. Peerabad. The record also shows that deceased Haider Ali had a criminal record; he was nominated in Crime No. 398 of 2009, registered under section 392/ 34 P.P.C. at P.S. Peerabad for committing extortion from one Korean national and the snatched articles were also recovered from him. He was also nominated in Crime No. 312 of 2007, under section 3/4 of Prohibition, E.H.O. wherein he was absconder. Besides, Crime No. 508 of 2012 is registered against the brother of Haider Ali, namely, Sardar at P.S. SITE, under section 6/9 (b) C.N.S. Act, 1997. Crime No. 108 of 2011 and Crime No. 597 of 2015 are registered at P.S. Peerabad and SITE-A, respectively under section 3/4 of Prohibition, E.H.O 6/9 (b) and C.N.S. Act, 1997, respectively against the brother of Haider Ali, namely, Faramosh. Crime No. 279 of 2014 is registered at P.S. Peerabad under section 6/9 (a) C.N.S. Act, 1997 against the brother of Haider Ali, namely, Bahadur and Crime No. 508 of 2015 is registered at P.S. Peerabad under section 6/9 (a) C.N.S. Act, 1997 against the brother of deceased Haider Ali, namely, Khalid. As per medical report of deceased Haider Ali, the cause of death was road accident. Hence, mala fide and ulterior motive on the part of complainant to implicate the accused, under the circumstances, cannot be ruled out and from the tentative assessment of the available record, the guilt of the accused, prima facie, requires further inquiry as envisaged under sub-section (2) of section 497 Cr. P.C. The case-law cited by the learned counsel for the complainant being on different footings does not advance the case of complainant for the rejection of this application. I, therefore, confirm the interim bail, granted to accused vide order dated 07.04.2016, on the same terms and conditions.

9. 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 tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.

JUDGE

Athar Zai