ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 179 of 2017
Applicant: Ayaz Khan s/o. Sultan Zareen,
Through Mr. Fazal Karim Durrani, Advocate.
Respondent: The State, through Ms. Rahat Ehsan, DPG.
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Date of hearing: 14.03.2017
Date of order: 14.03.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused Ayaz Khan s/o. Sultan Zareen seeks post-arrest bail in Crime No. 122 of 2012, registered at PS Manghopir, Karachi under Section 302/34 P.P.C. His earlier bail application bearing No. 504 of 2012 was heard and dismissed by the learned Additional Sessions Judge-V, Karachi-West, vide order dated 27.01.2017.
2. Briefly stated, the facts of the case are that on 21.04.2012 at 0900 hours complainant Shahid Khan s/o. Akbar Khan lodged aforesaid F.I.R., alleging therein that on the said date at 0900 he received phone call from applicant/accused, disclosing that he had killed the brother of the complainant, namely, Mohasil Khan by firearm and the deadbody of deceased was lying in his house. The complainant alongwith police officials reached the house of applicant/accused, where deadbody of his brother was found.
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 no eye witnesses of the alleged incident; that no independent witnesses has been cited; that the mobile phone data of complainant and accused has not been collected by the prosecution in order to prove that the accused made call to the complainant on the date of occurrence; that no motive has been disclosed behind alleged murder of the deceased; that no article connecting the accused with the commission of alleged offence has been recovered; that there is no circumstantial evidence available with the prosecution against the accused; that the co-accused Mst. Taskeen has already been granted bail by the trial Court; as such, on the principles of rule of consistency the present accused is also entitled for the concession of bail; that in the proclamation notice issued by the trial Court nickname of the accused has wrongly been mentioned; therefore, the same has no value in the eyes of law; that the accused is behind the bars since 10.11.2016 and since it is a fit case for further enquiry under Section 497(2) Cr.P.C. for the grant of bail to accused; the accused may be admitted to bail. In support of his contentions, the learned counsel for the accused has placed his reliance on the cases of Shah Sarwar etc. vs. The State (PLJ 1975 Cr. Case (B.J.) 333), Ahmed and another vs. The State (PLJ 1974 Cr. C. (Lah.) 493), Bashir Ahmed etc. vs. The State (PLJ 1974 Cr. C. (Lah.) 460), Qalandro alias Nazro vs. The State (PLJ 1997 Cr. C. (Karachi) 577), Muhammad Ali vs. The State (2008 P.Cr.L.J. 87), Muhammad Nadim Butt vs. The State (2001 P.Cr.L.J. 80), Bachando and another vs. The State (2000 P.Cr.L.J. 1204), Babar vs. The State (2000 P.Cr.L.J. 1262), Ghulam Qasim vs. The State and another (2008 P.Cr.L.J. 1371), Muhammad Nawaz and others vs. The State (2007 MLD 21), Mir Salam Jan and others vs. The State (1997 MLD 956), Muhammad Riaz vs. The State (2007 MLD 526) and Umar Daraz vs. The State (2008 YLR 1632).
4. On the other hand, learned DPG has vehemently opposed this application on the ground that the accused has committed murder of an innocent person and he is nominated in the F.I.R. which was promptly lodged; that medical report affirms the fact that deceased died due to firearm injures; that six (06) empties and one loaded magazine containing six live rounds were also recovered from the place of occurrence; that PW Muhammad Shafiq, who is landlord of the accused saw the accused while escaping from the place of incident having a pistol in his hand and wearing blood stained clothes; that after committing murder of deceased the accused absconded away and remained fugitive from law despite the fact that he was declared proclaimed offender by the trial Court on 18.11.2012; that the accused was arrested on 10.11.2016 in Crime No. 304/2016 registered at P.S. Sharafi Goth, Karachi under Section 506-B, 380, 427, 454, 149 P.P.C. whereafter he was arrested in this case; hence, sufficient evidence is available with the prosecution to connect the accused with the commission of alleged offence; therefore, he is not entitled for the bail.
6. I have considered the arguments advanced by the learned counsel for the accused and learned DPG as well as perused the material available on record.
7. It appears that accused has committed murder of deceased with firearm weapon and the deadbody of deceased was recovered by police from the house of accused and soonafter the incident he was seen by his landlord PW Muhammad Shafiq in the street having pistol in his hand and wearing blood stained clothes. The medicolegal report also affirms that the deceased died due to firearm injuries and the police has also recovered six empties and one loaded magazine containing six live bullets from the place of incidence. It also appears that after committing murder of deceased, the accused absconded away and remained fugitive from law for more than four years and seven months despite the fact that he was declared proclaimed offender by the trial Court. As regard application of rule of consistency, it may be examined here that co-accused Mst. Taskeen, the wife of accused, 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. The case-law cited by the learned counsel for the accused being on different footings does not advance the case of accused for the grant of bail. Hence, this bail application is dismissed.
JUDGE
Athar Zai