ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No. 737 of 2016
Mr. Dur Muhammad Shah and Mr. Tariq Hamza, advocate for applicant.
Mr. Zahoor Shah, APG for the State.
02.03.2017.
O R D E R
Khadim Hussain Tunio (J). Through instant application, applicant seeks his admission on post arrest bail in FIR No. 289/2012 of P.S. Korangi for an offence under section 302/34 PPC. The applicant approached learned trial Court with the same plea, which was declined vide order dated 26.04.2016.
2. Briefly facts of the prosecution case as unfolded in the FIR are that on 25.09.2012 at about 0415 a.m. Syed Amir Ali left his house alongwith Suzuki Pickup for booking. At about 7.30 a.m. complainant has been informed by his mother-in-law through telephone that Amir met with an accident and is in Jinnah Hospital. On receiving such information the complainant proceeded to Jinnah Hospital and found that his brother-in-law Syed Amir Ali received bullet injuries and his dead-body was lying in the mortuary-room, thereafter he went to the police station and lodged FIR against unknown culprits that they have committed murder of his brother-in-law by causing fire injuries due to some unknown enmity.
3. Mr. Dur Muhammad Shah, learned counsel for the applicant argued that after conducting the investigation in the case final report under section 173, Cr.P.C was submitted under clause-A, for want of eye-witnesses and unidentified culprits, which was approved by the learned Magistrate on 12.10.2012; that the applicant was arrested by the police of P.S. KhawajaAjmairNagri, in case under section 23(1)A, Arms Act, 2013, in which he has been admitted to bail; that during interrogation applicant disclosed that he had alsocommitted present offence on 29.01.2016, therefore, his custody was handed over to the police of P.S. Korangi, who arrested him in the present case; that the identification parade alleged to have been held on 04.02.2016 through PW Sultan; that the confession before the police is not admissible in evidence; that the name of applicant does not transpire in the FIR; that no specific part has been assigned to the applicant even in the alleged identification test conducted through eye-witness Sultan; that the identification parade has been held with a delay of four years from date of commission of incident and five days of his arrest; that the applicant is in custody and his physical custody is nor more required for further investigation. Learned counsel has relied upon cases reported in PLD 2002 SC 590; 1999 P.Cr.L.J 1295; 2004 SCMR 89; PLD 1960 SC 223; 1993 SCMR 550; 1996 SCMR 511; 1993 SCMR 585; 2009 SCMR 84; 2005 YLR 1637; PLD 1981 SC 142; 1995 SCMR 127; 1988 SCMR 557; 2005 YLR 1637; 1990 P.Cr.L.J. 1044; PLD 1995 FSC 20 and 2012 P.Cr.L.J. 1529.
4. Conversely, Mr. ZahoorShah,learned A.P.G. for State opposed the bail plea of the applicant while submitting that he has been picked in identification parade by the PW Sultan; that no enmity alleged or proved by the applicant with the complainant; that there is sufficient materialavailableon record to connect the applicant with the offence with which he is charged.
5. I have given meticulousconsideration to the submissions made by the learnedcounsel for the respective parties and perused the record.
6. It is admitted position that name of the applicant does not transpire in the FIR. It is also admitted position that marks of identification and description of applicant are not disclosed in the FIR by the complainant. It is further admitted position that none has witnessed the applicant while committing the alleged offence per FIR. Further there is no specific role is assigned to the applicant in the FIR by the complainant. So also the applicant was arrested by the police of P.S. KhawajaAjamirNagriunder section 23(i)(a) Sindh Arms Act, 2013. There is only piece of evidence produced by the prosecution is in respect of applicant,is identification parade, in which PW Sultan picked him and stated that at the time of commission of alleged incident applicant was sitting on rare seat of motorcycle and holding pistol in his hand. The relative of the applicant filedConstitutional Petition No. D-426 of 2016 on 22.01.2016 against Federation of Pakistan; Director General, Pakistan Rangers; I.G. Police Sindh; SSP Korangi; SHO, P.S. Korangi-4 and the State in respect ofpresent applicant/detenueMuhammad Ahsan alias Chand son of Rajubefore this Court in which notices issued to the concerned police, where-after applicant has been shown arrested/apprehended by the police of P.S. KhawajaAjmairNagri for an offence under section 23(i)(a) Sindh Arms Act, 2013 and during interrogation applicant disclosed his involvement in the present offence. It is well established principle of law that confession before police is inadmissible in law as per provisions of Articles38 and 39 of Qanun-e-Shahadat. Nothing has been recovered from the possession of applicant during investigation of the case. There is four years delay in identification parade of applicant through PW-Sultan from the date of commission of alleged incident and five days from the date ofarrest of the applicant.
7. For the forgoing reasons, the applicant is admitted to post-arrest bail subject to furnishingsolventsurety in the sum of Rs.500,000/= and PR Bond in the like amount to the satisfaction of trial Court. Whatever stated above is tentative in nature and will notinfluence the mind of the trial Court at the trial.
These are the reasons of short order dated 02.03.2017.
J U D G E