ORDER SHEET
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.778 of 2019
For hearing of Bail Application.
Applicant : Mst. Naila Younus d/o Muhammad Younus
Through Mr. Mehmood-ul-Hassan, Advocate.
Complainant : Rasheed-ul-Hassan Through Mr. Amanullah Kakar,
Advocate.
Respondent : The State Through Ms. Rahat Ahsan,
Additional Prosecutor General Sindh.
Date of hearings : 08.8.2019
Date of Judgment : 08.8.2019
ORDER
Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining her release on bail from trial Court in Crime No.12/2017 registered under Section 302 & 34 PPC at PS Ebrahim Haideri, Karachi. Now the applicant Mst. Naila Younus d/o Muhammad Younus is seeking her release on bail through instant bail application.
2. Facts necessary for the disposal of this bail application are that complainant Rasheed-ul-Hassan lodged FIR against the accused named in FIR to the effect that his brother namely Muhammad Younus along with his two wives namely Naila and Hina Kanwal was resided at Ali Muhammad Brohi Goth. Due to the quarrel, he divorced his wife namely Hina Kanwal 3/4 months ago and was residing with applicant. On 27.01.2017 at about 0400 hours, his sister in law (bhabhi) namely Naila informed the complainant that at 12:00 night Muhammad Younus left the house and his dead body having knife injuries, was recovered from Cricket Ground near Navy Wall, Muhammad Brohi Goth and taking to Jinnah Hospital. Complainant reached at Jinnah Hospital, after conducting legal formalities the dead body of deceased was handed over to him by the police. After funeral and burial ceremony complainant came to know that Mst. Naila (wife of deceased) having illicit relation with other persons and she used to meet with them and on this dispute she had quarreled with the deceased (her husband). Complainant has serious doubt that his brother Muhammad Younus has been murdered by stabbing knife injuries by his wife Mst. Naila with collusion of unknown accused persons and threw his dead body at Cricket Ground near Navy Wall, Ali Muhammad Brohi Goth.
3. Learned counsel for the accused has argued that the applicant/ accused is innocent, falsely implicated in the case by the complainant with the collusion of police with malafide intention and ulterior motives; that there is unexplained delay of approximately 01 day in lodging of FIR which is not plausibly explained by the complainant; that applicant is behind the bars for last 02 years and 02 months but prosecution has failed to conclude the trial; that there are material contradictions in the statement of PWs, those have been examined in trial Court, which itself makes prosecution story highly doubtful, which requires further inquiry; that the evidence of PW Muhammad Yousuf (son of deceased) is managed, manipulated and engineered, the PW Muhammad Yousuf has also not disclosed any specific role of present applicant/ accused in commission of alleged crime. Learned counsel for the applicant/ accused in support of his case has relied upon the following case laws:-
i. 2019 PCRLJ NOTE 50 (Zareen Muhammad & another v. Muhammad Shoaib and another);
ii. 2016 SCMR 2046 (Muhammad Ramzan v. The State & others);
iii. 2005 SD 72 (Mst. Shahnaz Akhtar v. The State);
iv. 2017 YLR Note 307 (Haji v. Mst. Saindini through L.Rs. and 3 others);
v. 2017 P.Cr.L.J. Note 60 (Muhammad Ejaz v. The State and another);
4. As against this, learned APG assisted by learned counsel for complainant has opposed this bail application and has contended that the applicant/ accused is nominated in FIR, which is lodged without any delay and the role of the applicant has also been assigned in committing the murder of deceased. She further submitted that in this matter two witnesses namely Muhammad Yousuf and complainant Rasheed-ul-Hassan have been examined before trial Court, who in their evidence have supported the prosecution case.
5. I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.
6. It appears from the record that the name of the applicant as one of the accused is appearing in FIR with specific role for causing murder to deceased. No doubt incident was taken place in the intervening night of 26th/27th of January 2017, while the FIR was lodged on 28.01.2017 with delay of one day. It is argued by learned counsel for applicant that there is no direct evidence against the applicant and the FIR is delayed by one day which has not been explained by the prosecution. I am not impressed with the arguments of learned counsel for applicant for the reasons that in my tentative view delay in criminal cases by itself, in lodging the FIR is immaterial, factor is to be considered by the courts are, firstly, that the delay stood reasonably explained; and secondly, that the prosecution has not derived any undue advantage through the delay involved. Delay in lodging of report is material only, when there is doubt regarding identity of culprits or their existed enmity between the parties. As per record both ingredients are missing.
9. I have noticed that in this matter two prosecution witnesses including complainant have also been examined. It is stated by learned APG that case has also been transferred to Model Courts, Malir for expeditious disposal of the case.
10. It is argued by the learned Counsel for the applicant that applicant being a women accused is facing the charge under Section 302, PPC and under the law, she is entitled for bail and case still has not been concluded. I am also not impressed with this argument for the reasons that admittedly, the case has been transferred to the Model Court for early disposal and merely arguing that applicant being women is not entitled for grant of bail as a right in every case. Courts generally take lenient view while dealing with the bail applications of the women and exercise discretion in their favor in suitable cases. Such discretion, however, is to be exercised keeping in view the facts and circumstances of the case. While deciding such matters, Court should be vigilant and should carefully and minutely examine the facts and circumstances of the case and by no means take lenient view. In this case, as observed above, the applicant is nominated in FIR with specific allegations of committing murder of her husband. In this regard, I am supported with the case of Mst. Taj Bibi v. The State reported as PLD 89 Quetta 60, relevant page 61, in which, it has been held as under:-
“Thus, females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits.”
11. It is noted that in this matter one innocent person has lost his life and as per police paper, the deceased was living with the applicant and the deceased was doubted over the character of the applicant. Under these circumstances, applicant prima facie involved in the commission of alleged offence. Factum of being first offender by itself has also not sufficient for allowing the bail to the applicant. As observed above, in this matter, two prosecution witnesses including complainant have been examined. Case has also been transferred to Special Model Courts for expeditious disposal. The mandate of the Model Courts is that of early disposal of the cases. It is stated by learned APG that trial is at the verge of conclusion. Under these circumstances and keeping in view of the material so brought on record, I find no merit in this bail application, which is dismissed along with listed applications. Case laws cited by learned counsel for applicant have been perused and considered by me but did not find applicable to the facts of the present case, even otherwise, precedents in bail matters are of no help to a party, as it varied from case to case depending upon the facts of each case, as held in case of Muhammad Faiz @ Bhoora vs. The State and others reported in 2015 SCMR 655.
12. Before parting with this order, I would like to make it clear that observation, if any, made in this order shall not influence the trial Court while deciding the case on merits.
JUDGE
asim/pa