ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail Appl. No.628 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
25.11.2009.
Mr. Ahmed Ali Shaikh Advocate for applicant.
Mr. Shahid Ahmed Shaikh Additional Prosecutor General Sindh for the State.
Mr. Taj Muhammad Keerio Advocate for complainant.
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Ahmed Ali Shaikh J. Applicant Haseeb Hussain seeks post arrest bail in crime No.179/2008 of Police Station Hussainabad for offence punishable u/s 302 and 211 PPC.
2. The bail plea of the applicant has been turned down by learned Ist Additional Sessions Judge, Hyderabad vide order dated 05.10.2009.
3. On 03.11.2008, the complainant Aamir Ali registered a case with Police Station Hussainabad. The contents whereof are reproduced as under:-
“Report is that I am serving in “Zarai-Agricultural University Tando Jam. On 30.10.2008 at 11.00 a.m. time my brother, Naveed alias Nooni disclosed me that his amount of Rs.35000/- have been given to Haseeb Rind as loan who called me through mobile phone No.0308-8574330 to come and take back his loan amount. I am going to the house of Haseeb Rind at Unit No.4, Latifabad, Hyderabad to take my mone and will return upto evening time. My brother Naveed proceeded towards Hyderabad on his Unique Motorcycle bearing No.AFR. At the late hours of night, I was continuously contacting my brother Naveed on his phone No.0301-3543449 but his phone was off. On 31.10.2008 at 5.00 p.m, I came to the house of Haseeb Rind Unit nO.4 Latifabad Hyderabad, where Haseeb met me from whom I inquired about my brother Naveed who disclosed that Naveed had returned to village at 8.00 p.m. Being satisfied on the reply of Naveed, I went to village. In the house, I made inquiry about Naveed on which house inmates disclosed that Naveed has not reached at the house. On 01.11.2008 I started searching of my brother and met with Ramzan Mangwano and Liaqat Jhangherjo who disclosed that on 30.10.2008 at evening time we met with your brother Naveed at the house of Haseeb Rind, where they were exchanging harsh words with each other on account of transaction of money. We got up from there and went to take tea and reached near the house of Haseeb Rind at “Magrib” time and we saw that Haseeb Rind was taking away something in a “Katta” by putting at the front of Motorcycle, we made inquiry from Haseeb Rind regarding Naveed, who disclosed that he has settled the account with Naveed and Naveed has gone to village on motorcycle. On account of late hours of night, I went to the house of my brother at Qasimabad and by phone made inquiry from village about my brother Naveed to which house inmates disclosed that till that time, Naveed has not reached at the house. On next day ie.. 02.11.2008 I disclosed all the facts of Jaffer Mangwano and Rasool Bukhsh Mangwano who are friends of Haseeb Rind. Thereafter I, my brothers Furqan and Ramzan, Rasool Buksh, Jaffer altogether went to the house of Haseeb Rind and pressurized Haseeb Rind to produce my brother, on which Haseeb Rind disclosed that on 30.10.2008 after hitting your brother, strangulated through rope has killed him and dead body by putting in the Katta alongwith Motorcycle had thrown at Barkat Bhai Town near Nursery. Thereafter we took Haseeb Rind with us and reached near Nursery at Barkat Bhai Town, where we on the pointation of Haseeb Rind, saw that a Katta/ganni (bag) was lying there, from which bad smell was coming, on which we opened it and found dead body of my brother Naveed lying there and his neck, hands and legs were tired with rope. Thereafter I informed the police and then brought the dead body at Bhitai Hospital for postmortem. After postmortem since dead body was in very critical condition, it was taken to village for burial and on account of late night, I did not appear. Now I appear, make report that justice be done”
4. After registration of FIR, police started investigation and subsequently applicant/accused was sent up to face the charge while co-accused Asad Ali was shown absconder in the charge sheet.
5. It is inter alia contended by the learned counsel for the applicant that the prosecution story narrated in the FIR is false, absurd, concocted one and unbelievable; the FIR is belated by three days without any plausible explanation; this is an unseen occurrence and co-accused Asad has been admitted on bail. He further contended that present applicant has been implicated in this case on the basis of statement of co-accused and same is inadmissible piece of evidence; no overt act has been assigned to the applicant and his name has been given by P.Ws in their 164 Cr.P.C statements due to personal grudge and that no incriminating recovery has been effected from him, therefore, case of the applicant requires further inquiry and he is entitled to concession of bail. In support of his arguments, learned counsel has relied upon the case of Mohan Lal and 2 others Vs. The State reported in 2006 YLR 155, Allam Khan Vs. The State, 2006 YLR 1378, Ijaz Ahmed & another Vs. The State, 1997 SCMR 1279, Qurban Ali @ Fouji Vs. The State, 2007 P Cr. L J 647, Shoib Mehmood Butt Vs.Iftikhar-ul-Haq & 3 others Vs. The State, 1996 SCMR 1845, Imam Bux Vs. The State 2009 P Cr. LJ 476, Abdul Ghaffar & 2 others Vs. The State, 2003 MLD 1916, Fakeer Muhammad & 2 others Vs. The State, 2007 MLD 340, Momin @ Muhammad shah Vs. The State 2008 P Cr. L J 1552 and Parial Vs. The State 2006 P Cr. L J 1212.
6. Learned State Counsel has vehemently resisted bail plea of the applicant and contended that delay in lodging the FIR has been properly explained by the complainant as he was busy to trace out the deceased; no enmity has been alleged against the complainant and that medical evidence corroborates the prosecution version.
7. Learned counsel for the complainant adopted the arguments of learned State counsel.
8. Heard arguments and perused the material available on record.
9. Admittedly deceased Naveed had given Rs.35000/- to the applicant as loan and on the day of incident deceased went to the house of Haseeb Rind by his motorcycle for receiving his money. The P.Ws Ramzan and Liaquat in their 161 and 164 Cr. P.C statements corroborated the version of the prosecution that on 30.10.2008 they met the deceased at the house of Haseeb Rind, where they found that deceased and applicant were exchanging harsh words over the transaction of money. In their respective statements, they further stated that after sunset when they again came to the house of applicant Haseeb Rind, they saw that Haseeb Rind was taking away something in Katta (bag) by putting the same on the front of motorcycle and on inquiry he disclosed that he had settled the account with deceased Naveed and he has gone to village on motorcycle. The dead body had been recovered on the pointation of applicant Haseeb from Barkat Bhai Town which was lying in Katta (bag). The record further reveals that accused Haseeb Rind had disclosed that on 30.10.2008 he had committed the murder of deceased by strangulation through rope. The medical evidence also corroborates the prosecution version in respect of death of deceased by strangulation. The motorcycle and chapel of the deceased as well as rope (with whom the deceased was strangulated) were also recovered from the house of applicant.
10. With profound respect, the law relied upon by the learned counsel for the applicant is distinguishable and not applicable in the case in hand. In the case of Mohan Lal and 2 others Vs. The State, the applicant was admitted on bail on the ground that one of the co-accused was already released by the police u/s 497 Cr.P.C and postmortem of deceased’s body was not conducted. In case of Allam Khan Vs. The State, the accused was admitted on bail on the ground of inordinate delay/hardships as well as on the rule of consistency and compromise had been arrived at between the parties and learned counsel for the complainant had also conceded the bail plea of the accused. In Ifaz Ahmed’s case, the facts were quite different as the prosecution witnesses first saw the deceased and after some distance they saw the accused going towards the same direction and the names of prosecution witnesses before whom the accused were alleged to have made extra judicial concession did not figure in the FIR. In the case of Qurban Ali @ Fouji Vs. The State, medico legal report was not placed on record to corroborate the nature of injuries and the co-accused, who too was shown duly armed with weapons at the place of incident had been released on bail. In Shoib Mehmood Butt’s case, Honourable Supreme Court of Pakistan has laid down the principle of bail in case of counter versions arising from the same incident, one given by the complainant in the FIR and other given by the opposite party. In case of Imam Bux Vs. The State, the accused was admitted on bail in view of rule of consistency as co-accused was already admitted on bail. In case of Abdul Ghaffar and 2 others Vs. The State, there was absolutely no incriminating material/evidence on police record against the accused, therefore, they were granted bail. In case of Fakeer Muhammad and 2 others Vs. The State, a direct complaint was filed in respect of same incident in which the complainant admitted that accused persons had been falsely implicated by him in the FIR at the instance of his step brother and that infact it was accused cited in the direct complaint, who had committed the crime. In the case of Momin @ Muhammad Shah Vs. The State, the accused who was constable, was found to be present on his duty in traffic section at the time of occurrence and during inquiry got conducted by Inspector General of Police, he was found innocent. In the case of Parial Vs. The State, co-accused had been let off as innocent person and apart from other factors, enmity was also apparent from the contents of FIR.
11. In view of the above circumstances, I am of the considered view that the law relied upon by the learned counsel for the applicant is not helpful to the case of applicant. In case of Nazeer Shahzad Vs. The State reported in 2009 SCMR 1140, the appeals of the accused were dismissed by the Honourable Supreme Court on the basis of last seen evidence and confession before the Magistrate. In aforesaid Judgment, their lordships had relied upon the case of Sher Muhammad Vs. The State reported in 1968 P Cr. L J 221. In this case, full bench of their lordships held as under:-
“In absence of any explanation by the accused as to how he came to have knowledge of the dead body in the defused well, it may fairly be presumed that he was the person, who had thrown the body in dismembered state into the well”
12. Admittedly in the case in hand, the dead body of deceased had been recovered on the pointation of accused. In the case of Mst. Raheela Durani Vs. The State reported in 1995 SCMR 1184, the bail allowed to the accused by Sessions Court was cancelled by the High Court on the ground that deceased had been seen going inside the house of accused on the day, when he was killed. The evidence was also available to show the presence of the accused in her car at a place where dead body of deceased was being thrown. The police had also secured the clothes of the deceased from the car of accused. The Honourable Supreme Court had observed that High Court had properly exercised its discretion in canceling the bail allowed to the accused by Sessions Court. In the case of Haji Khalil Ahmed and another Vs. The State, 2007 P Cr. L J 1620 the bail was declined by this court to the applicants on the ground that oral evidence was corroborated by recoveries of crime empties from the place of incident and the recovery of pistol on the information supplied by accused. Some articles were also recovered from possession of accused belonging to deceased. In the case of Bahauddin Vs. The State, 2007 P Cr. L J 1406, concession of bail was not extended in favour of accused on the ground of heinous offence of torture and cold blooded murder at the hands of accused.
13. There is overwhelmining evidence available on record to connect the applicant with the commission of crime, for the offence with which the accused is charged is hit by prohibition contained in section 497(i) Cr.P.C. Even at bail stage, the deeper appreciation of evidence cannot be undertaken.
14. For the foregoing reasons, I am of the view that there is sufficient material connecting the applicant/accused with commission of offence and there are reasonable grounds to believe that he has nexus with the alleged episode in which a younger boy lost his life, the application in hand merits no consideration and same is dismissed accordingly.
The Criminal Bail Application No.628/2009 stands disposed of.
JUDGE