ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

 

CR. B.A.NO.S-703 OF 2009.

 

DATE                          ORDER WITH SIGNATURE OF JUDGE

 

14.12.2009.

 

            Mr. Abdul Aziz Memon, Advocate for the applicant.

 

Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh.

. . . .

 

Applicant Maqbool seeks post-arrest bail in Crime No.44 of 2009, of police station Chhachro, under sections 302 and 34 PPC.

2.         Facts of the case are that on 14.10.2009 at 1200 hours, the complainant lodged the F.I.R. at police station Chhachro, in respect of murder of his sister Mst Shahnaz stating therein that he has five sisters and five brothers. One of his sisters is married while the others are unmarried. His sister Mst Shahnaz is aged about 18/19 years. During recent rainy season they cultivated the land of Haji Jamaluddin, which is adjacent to the land of Sohrab Chohan and others. Maqbool is a vagrant person who used to tease Mst Shahnaz by playing tape-recorder and utter balled words. Since they are poor, therefore, nobody was paying any heed. He had gone to Karachi for labouring purpose, where in the morning he received telephonic information that that last night at “Assar” time, i.e. 04.00 p.m. Mst Shahnaz left the house to take out sheep from cattle pond but did not return. His family members tracked footprints under torch light and noticed that three persons have dragged Mst Shahnaz from outside the cattle pond towards northern side. They remained searching and at dawn time his father and mother saw that Mst Shahnaz was hanging with a rope, tied round her neck, with a “Kandi” tree near well of Dr. M. Khan. She was immediately brought down and found dead. Meanwhile, Tharo Chohan came there, who disclosed that at “Assar” time he saw Maqbool and two other persons, whom he could identify on seeing, running towards southern side from his well. On this, his family members became sure that Maqbool being vagrant alongwith his unknown accomplices, committed murder of Mst Shahnaz by strangulating her while taking advantage of odd hours and seeing her coming out of house alone, as he used to keep his evil eye on her and in order to give colour of suicide to murder he hanged Mst Shahnaz with “Kandi” tree.  On receiving such information complainant alongwith his brother left Karachi and went to his house and after verifying the facts lodged the report.

3.         During investigation, police arrested the applicant/accused on 14.10.2009 and subsequently he was sent up to face the charge.

4.         It is, inter alia, contended by the learned counsel for the applicant that the applicant is innocent and he has been falsely implicated in this concocted case; the manner in which the complainant has involved the applicant by referring to past acts of the applicant is quite illogical and baseless, as no such complaint was made by the complainant party to anybody. This is an unseen incident and nobody has claimed to be eye witness of the occurrence. The F.I.R. is belated by 08 hours, which shows the malafides and fabrication on the part of complainant. It is further contended that except the alleged words of P.W Tharo Chohan that applicant alongwith two unknown persons was seen while running from the alleged place of incident there is no other evident available to connect the applicant with the alleged offence. In support of his contentions learned counsel for the applicant has relied upon the cases of (1) SHAHBAZ v. THE STATE   and another (2007 P Cr.L.J 1555 Lahore), (2) MUHAMMAD ARIF and another v. THE STATE  and another         (2009 M L D 546), (3) IMAM BUX v. THE STATE (2009 P Cr. LJ 476 Karachi), (4) JAVED IQBAL v. THE STATE (2008 P Cr. LJ 1578 Lahore), MUHAMMAD TARIQ v. THE STATE (2008 P Cr. LJ 490 Lahore) and RAMZAN v. THE STATE (2007 P Cr. LJ 1572 Lahore).

5.         Mr. Shahid A. Shaikh, learned A.P.G for the State vehemently opposed the bail plea of the applicant. He contended that per F.I.R. the applicant used to tease deceased Mst Shahnaz and his previous conduct shows that he had an evil eye over the deceased. No enmity has been alleged by the applicant with the complainant party, therefore he does not deserve the concession of bail.

6.         Heard learned counsel for the parties and perused the record.

7.         No doubt nobody has claimed to be eyewitness of the incident but from the contents of F.I.R. it transpires that the conduct of the applicant was against the norms of the society. The complainant has alleged that prior to this, the applicant who is vagrant person used to tease Mst. Shahnaz in different manner. Since they are poor persons, therefore, no body was willing to pay any heed to their complaint. The deceased Mst. Shahnaz was an unmarried girl and the complainant being real brother is not supposed to level baseless allegations against anyone in which the honour and dignity of his real sister may come under cloud.  The medical evidence also corroborates the version of the prosecution in regard to death of the deceased. The statement of P.W. Tharo also corroborates the version of prosecution to the extent that at the place of occurrence he saw the applicant with two unknown persons. The F.I.R. further reveals that due to previous conduct of the applicant the complainant party has approached the influential of the area, but none paid any heed, thus the applicant when could not succeed to fulfill his illegitimate desire, committed the murder of deceased.  

8.         With profound respect the law relied upon by the learned counsel for the applicant is distinguishable. In the case of Shahbaz (Supra) during investigation the accused was not found to be connected with the case and the motive part of the case was attributed to co-accused.  In the case of Muhammad Arif (Supra) the accused was implicated by co-accused in his 161 Cr.P.C. statement and co-accused was granted bail and on rule of consistency the accused was admitted on bail. In the case of Imam Bux (Supra) the accused was admitted on bail on the rule of consistency. In the case of Javed Iqbal (Supra) the facts were quite different and no allegation against the specific person was leveled.   In the case of Muhammad Tariq (Supra) name of the accused was not mentioned in the F.I.R. and the accused was declared innocent by the police. In the case of Ramzan (Supra) the whole prosecution case revolved on suspicion of administration of poison by the accused to the deceased but prima facie, no such evidence was available on record and the medical report had contradicted the prosecution case.

9.         The contention raised by learned counsel for the applicant requires deep appreciation of the evidence and at bail stage same is not permissible, as held by Apex Court.

10.       For the foregoing reasons I am of the considered view that the bail application of the applicant merits no consideration and same is accordingly dismissed. However, the observation made hereinabove are tentative in nature and will not prejudice the case of either party.

 

                                                                                                            JUDGE