ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No S- 159 of 2023.

Date of hearing

Order with signature of Judge

1.         For orders on office objections.

            2.         For hearing of bail application.

03.07.2023.

                        Mr. Rafique Ahmed K. Abro, Advocate for the applicant.

                        Mr. Sanaullah Bhutto, Advocate for the complainant.

                        Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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KHADIM HUSSAIN SOOMRO, J;- Through captioned bail application filed in terms of Section 497 Cr.PC, the applicant has assailed the order dated 15.03.2023, passed by learned 4^th Additional Sessions Judge, Larkana, whereby his bail plea was declined in FIR Crime No.21/2022, for offence punishable under Sections 302 & 34 PPC, registered with P.S Baqapur(District Larkana).

2.         Succinctly, facts of the case as depicted in the FIR lodged on 02.07.2022 by complainant Mukhtiar Ali Shaikh are to the effect that few days ago, an altercation took place between his maternal cousin Ali Gohar Shaikh (deceased), aged 35 years and accused Irfan Ali Khokhar, Abdul Samad @ Sono (applicant) over money transaction, whereupon the accused were annoyed with Ali Gohar. On 29.06.2022, at about 7.00 p.m, accused namely Irfan Ali Khokhar and Abdul Samad @ Sono Tunio together with an unknown person came at his otaq, where he along with his maternal cousin Abrar Ali Shaikh and brother Zulfiqar Ali Shaikh were available; accused Irfan asked them to call Ali Gohar, as they have to give him money, who was called and accused persons asked him to accompany them towards Otha-Chowk where the person would bring money, as such accused Irfan Ali sat with Ali Gohar (deceased) on his motorcycle brought by him from his house, while accused Abdul Samad alias Sono and one unknown person departed on his motorcycle; however, after lapse of sufficient time, Ali Gohar did not return to home and at about 1.00 a.m., the complainant with his mashirs/witnesses went at the doors of accused Irfan Ali Khokhar and Abdul Samad @ Sono Tunio and narrated the facts to the inmates of their house and inquired about them but they disclosed that the accused persons are not available in the house. The complainant party attempted to contact with deceased over his cell phone, which was switched off. On 30.06.2022, at about 7.00 a.m., accused Irfan Ali Khokhar and Abdul Samad @ Sono Tunio came on a motorcycle to the street of complainant party, where the complainant with his witnesses and relatives waited for Ali Gohar at their otaq, the accused while making aerial firing were disclosing that they have committed murder of Ali Gohar in revenge and both of them while making aerial firing from their pistols went away towards western side. They searched for the deceased but to no avail. In the meantime, the news was made viral through social media, together with a snapshot of Ali Gohar (deceased) in the dead condition that a dead body of an unknown person having fire-shot and neck cut injuries had been secured adjacent to Noohani Railways crossing falling within the domain of P.S, Baqapur. The complainant party then came to the Police Station, Baqapur, where the police showed them the snapshot of the recovered dead body, which was of Ali Gohar, and the police further disclosed that the dead body after observing the necessary formalities had been handed over to Edhi Foundation, later-on, the complainant party met with Edhi Center, Larkana, where it was informed that the dead body had been buried. The complainant party then remained busy with the funeral rituals of the deceased, and later he came to the police station and reported the incident against the accused. 

3.         Per applicant’s counsel, the applicant is innocent and has falsely been arraigned in this case; that the FIR has been registered with inordinate delay of about 2/3 days; that the deceased was missing since 29.06.2022 but the complainant party did not approach the police till 02.07.2022; that this is an un-witnessed incident and there is only last seen evidence against the applicant, as according to prosecution, the applicant and co-accused came at otaq of the complainant and the deceased was accompanied with them; that neither anybody has identified the deceased at the time of postmortem examination, nor the postmortem report bears the name of deceased; that the mashirnama of place of incident shows that it was shown to the police by the complainant but as per the record, the complainant was not there; that the applicant is below age of 18 years and is being tried under Juvenile Justice System Ordinance, as such he deserves the concession of bail; that the applicant has remained in jail for about a year and yet the prosecution has not examined even a single witness. In that situation, the guilt of applicant is calling for further inquiry. In support of his contentions, he relied upon case laws reported in 2002 P.Cr.L.J-657, 2006 MLD-507, 2006 P.Cr.L.J-1648, 2009 P.Cr.L.J-47 and an unreported order dated 20.04.2020 passed by this Court in Crl.Bail.Appln.No.S-64 of 2020.

4.         Conversely, learned DPG for the State who is assisted by learned counsel for the complainant has opposed the grant of bail to the applicant by contending that the applicant is nominated in the FIR with specific role that on 29.06.2022, he alongwith co-accused came at otaq of the complainant and took the deceased with them on the pretext to give his money and since then deceased had gone missing and subsequently they came at the street of complainant where they by making aerial firing disclosed that Ali Gohar has been done to death by them in revenge. The complainant party came to know through social-media that the police has recovered dead body of the deceased and on approaching at police station, found the picture to be of Ali Gohar (deceased). The deceased's motorcycle was recovered from the applicant on his arrest. That the applicant is aged about 17 years and his case does not fall within the meaning of Section 6 Sub-clause (4) of the Juvenile Justice System Ordinance, 2000. That the delay in conclusion of trial, if any, is not on the part of complainant but on the part of applicant as is evident of case diaries of learned trial Court dated 08.4.2023, 03.05.2023, 17.05.2023, 01.06.2023 and 14.06.2023, which were placed on record. That the offence with which the applicant has been charged, falls within the prohibitory clause of Section 497 Cr.PC, as such, he is not entitled to the concession of bail.

5.         Heard learned counsel for the respective parties and perused the entire material available on record with their able assistance.

6.         The careful perusal of the record entailing that this is an un-witnessed incident, as none indeed has seen any of the accused committing murder of the deceased; however, there is only the last seen evidence against the applicant and co-accused to the effect that they took with them the deceased from his home. Further, the deceased was allegedly accompanied by the accused persons on 29.6.2022 and did not return home till late at night. Still, the complainant did not report the incident to the police and on the second day i.e. 30.06.2022, the accused persons came into the street of the complainant party and, while making aerial firing, revealed that Ali Gohar had been done to death by them in revenge. Even then, the complainant has not reported the incident to the police. It was quite astonishing that after the lapse of 2/3 days with no satisfactory explanation, the incident was reported to police by the complainant when the dead body of the deceased was discovered and later buried, being heirless by Edhi Foundation; therefore, the delay in the lodgment of FIR prima facie demonstrates due deliberation and consultation on the part of the complainant. A reference in this regard can be had from case of GUL MUHAMMAD Vs. The STATE reported in 2023 SCMR-857.

7.         Moreover, the postmortem report does not disclose the name of the deceased. Furthermore, there appears to be no direct evidence against the applicant except the last seen evidence, extra-judicial confession by the accused before the complainant party and the recovery of the deceased's motorcycle. The last seen evidence is presumed to be weak, and it seems to need more confidence to inspire. At the same time, an extra-judicial confession by accused persons also seems to be concocted, as there is nothing on record to show the compelling circumstances which led the accused to confess their guilt before the complainant party.

8.         Further, the recovered motorcycle was allegedly owned by the deceased, but no such registration document showing ownership of said motorcycle with the deceased has been collected by the investigation officer during the course of the investigation. No evidence is brought on record to establish any connectivity of the recovered motorcycle with the deceased, therefore, the recovery of incriminating article, at this juncture cannot be considered as direct evidence but it would only be considered as circumstantial evidence. The entire case of the prosecution is based upon the last seen evidence. In this regard, I have been guided by case of FAIZ JALANI alias IMRAN MAMA V/S. The STATE and others (2017 SCMR-61), wherein it was held that;  

“After hearing the learned counsel for the parties and going through the record we have observed that admittedly the murder in issue had remained unwitnessed and although the petitioner's name had figured in the FIR yet his name had been mentioned therein not as a culprit but as a friend of Haji Imdad Hussain deceased. The only pieces of evidence being relied upon by the prosecution against the petitioner are the last-seen evidence, recovery of some mobile telephone sets and recovery of a handcart. Upon our query the learned Additional Prosecutor-General, Punjab appearing for the State has gone through the record of investigation and has informed that there is a Memorandum of Identification of the mobile telephone sets available on the record but the said memorandum does not disclose any mark of identification of the recovered mobile telephone sets so as to connect the same with the deceased. There is no evidence available on the record to establish any connection of the recovered handcart with the murder in question or with the alleged removal of the dead body by using the said handcart. The only remaining piece of evidence is in the shape of last- seen evidence and the question of proximity vis-a-vis the said piece of evidence shall be attended to by the trial court on the basis of the evidence to be produced before it. In view of the factors noted above and the questions about evidentiary worth of the pieces of evidence available with the prosecution we have found the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and consequently Faiz Jalani alias Imran Mama petitioner is admitted to bail in the above mentioned criminal case subject to furnishing bail bond in the sum of Rs.1,00,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the trial court”

9.         Besides the above, the applicant is said to have remained behind bars for about a year, and the case trial is yet to commence. The accused, being 17 years of age, has been certified by the Medical Board to be a juvenile; therefore, his case has been bifurcated and is being tried under the Juvenile Justice System Ordinance, 2000.

10.     The applicant has been in custody since the date of his arrest, i.e. 05.07.2022. The counsels in Court unanimously inform that though the charge has been framed yet, not a single witness has been examined by the learned trial Court. Section 6 Sub-clause (5) of the Juvenile Justice System Ordinance, 2000, provides that "Where the Juvenile Court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile or any other person acting on his behalf or in the exercise of any right or privilege under any law for the time being enforced, such juvenile shall be released on bail if he has been detained for a continuous period exceeding six months and whose trial has not been completed". The case of the present applicant comes within the ambit of the above-cited section. Liberty is a vital right of a person that cannot be taken away unless there are exceptional circumstances to do so. A person's liberty cannot be restricted only on the basis of baseless claims. Further, the investigation of this case has been finalized, and physical custody of the applicant is no more required by the police for the purpose of investigation. In these circumstances, continuous custody of the applicant in jail is not likely to serve any purpose beneficial at this juncture. It is also a well-settled principle of law that bail does not mean acquittal of the accused but only change of custody from government agencies to the sureties, who, on furnishing bonds, take responsibility to produce the accused whenever and wherever required to be produced.

11.       The tentative assessment of all these factors and the material available on record makes out the case of applicant to be of further enquiry falling under Sub-Section (2) of Section 497 Cr.PC. Consequently, the instant bail application is allowed and applicant Abdul Samad @ Sono Tunio is admitted to post-arrest bail subject to his furnishing solvent surety in sum of Rs.100,000/- (Rupees One Lac) and P.R bond in the like amount to the satisfaction of learned trial Court.

12.       Before parting with this order, it needs no clarification that the observation recorded hereinabove being tentative in nature would not prejudice the case of either party at trial.

JUDGE

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