ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

 

Cr. Bail Application No.485 of 2018

 

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DATE                 ORDER WITH SIGNATURE(S) OF JUDGE(S) 

 

 

FOR HEARING OF BAIL APPLICATION

 

Date of hearing:        04.6.2018

 

Date of Order:           04.6.2018     

 

Mr. Farooq H. Naek, advocate for applicant

Syed Shafiq Ahmed and Mst. Shamim Khatoon Complainants in Crimes No.105 and 186 of 2016 of PS Landhi, Karachi are present

M/s. Sagheer Abbasi/ Tanya Allah Dad, APG a/w SIP M. Hanif Abbasi PS Landhi

 

 

ORDER

 

 

 

Abdul Maalik Gaddi, J.  By this Order, I intend to dispose of Criminal Bail Application, filed on behalf of the applicant/ accused Muhammad Ibad son of Muhammad Ashraf, arising out of FIR No.105/2016, registered under Section 302/34 PPC of PS Landhi, Karachi.

2.                   The bail pleas filed on behalf of the applicant were dismissed by the learned trial Court vide its Orders dated 01.9.2016 and 13.01.2018. Now the applicant/ accused is seeking his release on bail purely on the ground of delay in non-conclusion of trial in only Crime No.105/2016 of PS Landhi, Karachi.

3.                  The facts of the case as per FIR are that complainant Syed Shafiq Ahmed lodged the FIR at PS Landhi on 10.3.2016, stating therein that on 09.3.2016 he went to Passport office and returned back at 1230 hours and knocked the door, when his wife Mst. Mussarrat jehan opened the door and disclosed that Mst. Shahla, who resided on the upper floor was lying with full of blood. He immediately rushed to the upper floor and found that his daughter in law lying on the floor, electric wire was in her neck and room was in scattered condition. Meantime his daughter Azrar Shafiq also reached there, who called the ambulance. Police and Ambulance reached there. Police completed the proceedings of dead body and sent the dead body to JPMC. Police also secured three churries, cricket bat and electric wire from there. Police after registration of FIR arrested the accused, challaned him in this case.  

4.                  I have heard the learned counsel for applicant/ accused, learned APG, Syed Shafiq Ahmed and Mst. Shamim Khatoon, Complainants of Crime No.105 and 186 of 2016 of PS Landhi, Karachi and have gone through the case paper so made available before me.

5.                  During the course of arguments, learned counsel for applicant/ accused has reiterated the same facts and grounds as mentioned in the bail application. He has further contended that applicant/ accused is innocent and has falsely been implicated in this case. Applicant/ accused is not named in the FIR nor any specific role has been assigned to him. He has argued that the applicant/ accused was arrested on 11.3.2016 and since then he is in custody and the charge was framed against him on 25.02.2017 but despite of expiry of 02 years, trial has not been concluded. He further submits that as per diary sheet on record there is no delay in trial on the part of the applicant/ accused. He further submitted that applicant/ accused neither previous convict nor hardened, desperate or dangerous criminal, therefore, according to him under the aforementioned facts and circumstances, applicant is entitled for bail in Crime No.105/2016 of PS Landhi, Karachi.

6.                  Conversely, learned APG has opposed the grant of bail application on the ground that accused is involved in heinous offence of murder of his aunty (Mumani) which falls under the prohibitory clause of section 497 CrPC. He has further contended that police has secured blood stained uniform of accused on his pointation. However, complainants in Crimes No.105 and 186 of 2016 are present, they have recorded their no objection, if the applicant/ accused is granted bail in Crime No.105/2016 of PS Landhi, Karachi.

7.                  I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.

8.                   Applicant/ accused seeks bail on the ground of statutory delay in non-conclusion of trial within the period of 02 years, therefore, I have gone through the newly amended provision in Section 497 CrPC, which says that where the Court is of the opinion that the delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused persons be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not been concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

9.                  It is an admitted fact that applicant/ accused was arrested on 11.3.2016 and charge against him was framed on 25.02.2017 but despite of expiry of 02 years, trial has not been concluded.

10.             I have gone through the progress report submitted by the Presiding Officer of trial Court as well as police papers so made available before me and come to the conclusion that the delay in trial is not attributed on the part of applicant/ accused. During the course of arguments, I have specifically asked the question from learned APG whether the delay in non-conclusion of trial is on the part of applicant/ accused, he answered in negative. It also appears from the record that the applicant is in young age and behind the bar for the last more than 02 years, but his trial has not been concluded and the delay in conclusion of trial is also not on the part of the applicant. Besides the name of the applicant is not appearing in FIR. No specific role has also been assigned to him in the murder of Mst. Shahla Kamran. There is no eye-witness of the incident. Nothing on record that the applicant/ accused is previously convicted in any criminal case. There is also nothing on record that applicant/ accused has remained indulged in any criminal activities in past. During the course of arguments, all these legal and factual aspects of the case were confronted to learned APG for reply, he has no answer to rebut the assertions made by the counsel for applicant/ accused. Syed Shafiq Ahmed and Mst. Shamim Khatoon (Complainants) of Crimes No.105 and 186 of 2016 of PS Landhi are present. They have recorded their no objection if the applicant/ accused is granted bail in Crime No.105/2016.

11.             In view of the above, applicant/ accused has made out a case for grant of bail on merit as well as on the ground of statutory delay in non-conclusion of trial. I, therefore, admit the applicant/ accused on bail only in Crime No.105/2016 of PS Landhi, Karachi subject to his furnishing solvent surety in the sum of Rs.1,00,000/- and PR bond in the like amount to the satisfaction of trial Court.

12.             Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant after due notice to him.

Judge

asim/pa