THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1304 of 2019

Applicants                   :           Mukhtiar Ali son of Rasool Bukhsh

                                                Through Mr. Wazeer Hussain Khoso, Advocate

Respondent                 :           The State Through Mr. Abdullah Rajput, D.P.G. a/w Complainant SIP Muhammad Masood & IO/ SIP Jehangir Tanoli of PS SITE-B, Karachi

Date of hearing           :           12.11.2019

Date of Judgment       :           12.11.2019

For hearing of Bail Application.

ORDER

Abdul Maalik Gaddi, J.  Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.121/2019 registered under Section 302 PPC at P.S. SITE-B, Karachi. Now the applicant Mukhtiar Ali is seeking his release on bail in the said crime through instant bail application.

2. Brief facts of the FIR are that on 14.3.2019 by an entry No.9 at about 1050 hours one person Gul Badshah son of Ghafoor Khan resident of house near Madina Masjid, Haroonabad, SITE Area, Karachi, informed Police through his phone bearing SIM No.0302-5588938 that his tenant Kareem Khan son of Mayoon Shah aged about 45-50 years, whose room was closed from outside and foul odour was coming out of his room, there was apprehension of existence of any dead body inside the room. After receiving the information, ASI Muhammad Masood proceeded towards the place of incident and found that the door was locked from outside and foul odour was felt around the room, he broke open that lock in the presence of Ameerzada and other local persons and discovered a dead body lying on the floor of the room and a piece of cloth was surrounded around his neck, he shifted the dead body to Civil Hospital for postmortem and after completing legal formalities he lodged FIR that some unknown persons due to unknown motive had murdered Kareem Khan son of Mayoon Khan Shah 18/20 days before.

3. Learned counsel for applicant contended that the applicant is innocent and has been falsely implicated in this case; that the incident is an unseen incident and there was no eye-witness of the alleged murder; that the accused is not nominated in the FIR and no prosecution witness has implicated the accused in his statement recorded under Section 161 CrPC; that the applicant/ accused has been implicated by the co-accused in his confessional statement recorded before Police and confession with Police is inadmissible in the eyes of law according to Article 38 of Qanun-e-Shahadat Order, 1984; that the same co-accused recorded his confessional statement before the Magistrate on 10.4.2019 after 6 days of his arrest remaining in continuous custody of Police; that prior to this, Police arrested accused Imtiaz Hussain son of Ghulam Rasool Abbasi, who confessed his guilt before the Police during investigation but later on Police released him and declared him innocent in Investigation Report after taking bribe and arrayed another set of accused persons in the same challan and implicated the applicant with malafide intention and ulterior motive; that no incriminating material has been recovered from the applicant nor the I.O. has collected any evidence against the applicant/ accused to connect him with offence; that it is fundamental right of accused that he may be presumed innocent unless and until his guilt is proved as such keeping him behind the bars prior to his guilt is proved is advance punishment which is against the fundamental rights guaranteed by the Constitution; that the applicant is behind the bars since his arrest i.e. 08.4.2019; and that the Police has already submitted the Investigation Report and applicant is no more required for further investigation, as such, applicant is entitled for bail.

4. On the other hand, learned DPG who appeared on behalf the State has opposed this bail application on the ground that there is sufficient material available on record, which connects the present accused with the commission of the offence, which carries capital punishment.

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

6. It appears from the record that the applicant/ accused is not nominated in FIR. It is noted that accused Asif was arrested by the Police on 04.4.2019 and his confessional statement before the Judicial Magistrate was recorded on 10.4.2019, in which the accused Asif has implicated the present applicant/ accused in the commission of offence. It appears that present applicant has been arrested on the basis of statement of co-accused Asif. It is argued by learned counsel for applicant that the arrest of the present applicant/ accused on the basis of statement of accused Asif is a very weak type of evidence and it is yet to be determined at the time of trial whether the present applicant/ accused is in fact involved in the commission of crime or otherwise.

7. It appears from the record that during investigation accused Imtiaz was arrested on 20.3.2019, who during investigation disclosed to the I.O. of the case that he had committed the crime with the help of co-accused Irfan and Sabab Abro, but it is surprising to note that these accused were not challaned by the I.O. of the case. Not only this, during investigation, I.O. of the case also arrested Irfan Ali Nunari against whom the allegation was that a mobile phone of deceased was also recovered from his possession, but he was also released by the Police. Case has been challaned. Nothing was recovered from the applicant. It was unseen murder of deceased. It is noted that the case of the present accused appears to be on better footings, then those who have not been challaned by the Police. When all these facts were confronted to learned DPG, he has no satisfactory answer with him.

8. Under the aforementioned facts and circumstances of the case, I have come to the conclusion that the case of the applicant/ accused requires further probe. In view of the above, this bail application is allowed. Applicant/ accused is ordered to be released on bail forthwith, if he is not required in any other criminal case, after furnishing his solvent surety in the sum of Rs.1,00,000/- and PR bond in the like amount to the satisfaction of the trial Court.

9. Needless to mention here that any observation if made hereinabove 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 without making any reference to this Court.

Judge

asim/pa