ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.
Criminal Bail Application No.S-647 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
FOR HEARING.
22.12.2009.
Mr. Shamasuddin Khushk, Advocate for applicants.
Mr. Mian Taj Muhammad Kerio, Advocate for complainant.
Mr. Shahid Ahmed Shaikh, A.P.G, Sindh.
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AHMED ALI SHAIKH, J. Applicant Mirza Salman Baig seeks post arrest bail in crime No.24 of 2009 of Police Station B-Section, Latifabad, Hyderabad, offence under section 302 PPC.
2. The bail plea of the applicant has been turned down by the trial Court vide order dated 05-06-2009.
3. The facts rising to this application are that on 07-02-2009, one Muhammad Yaseen s/o Faiz Muhammad Rajput lodged the report at PS B-Section, Latifabad, Hyderabad, which reads as under:-
“Complaint is this I am resident of above mentioned address and am contractor. My younger brother Muhammad Yameen, aged about 30/32 years was residing in Unit No.5 Latifabad, and was contractor. On 06-02-2009 in the night I was present in my house when at about 2-00 a.m. brother Jameel phoned me and informed that younger brother Muhammad Yameen has been shot dead by bullet. I immediately came to Bhitai Hospital from Kotri and found dead body of Brother Muhammad Yameen in Hospital. Brother Jameel and brothers in law of Yameen namely Shakeel and Aqeel also met me in Hospital. We removed dead body of brother from Hospital to home. After funeral ceremony we both brothers made enquiries when owner namely Aleem of City Estate Agency Unit No.5, Latifabad, told us that brother Muhammad Yameen on said date as usual came at the City Estate Agency Unit No.5 Latifabad in night when he received phone calls and in response to said phone calls Yameen left the Estate Agency at about 12 night and thereafter at about 12-30 night dead body of brother was found by police from Block F, Unit No.6 Latifabad from main road and from his pocket neither mobile cell, nor purse, nor NIC, nor ATM Card and documents of motor found. Today after becoming free from Sooiam Fataha and after consulting with each other I have arrived at Police Station and lodging FIR that unknown culprits because of some unknown enmity murdered younger brother Muhammad Yameen by making bullet fire on his face. Investigation be conducted and my brother’s killer or killers be arrested at an earliest and justice be done.”
4. During investigation, the applicant was arrested on 12-02-2009 and after usual investigation he was sent up to face the charge.
5. It is, interalia, contended by the learned counsel for applicant that the applicant has nothing to do with the alleged offence and there are no reasonable grounds to believe that he has committed the alleged offence; the story narrated in the FIR is false, fabricated and concocted one; there is delay in lodging of FIR without plausible explanation; the alleged incident is un-witnessed; the dead body of the deceased has been recovered from a busy road; the prosecution has failed to bring any plausible evidence to connect the applicant with the above offence; only evidence collected by the police during investigation is that last calls in Mobile Phone of deceased were made from the Mobile Number of the applicant; there is no direct allegation against the applicant in record to the death of deceased. In support of his contentions, learned counsel relied upon the case of Shahid Naseem.Vs.The State, reported in 1998 P.Cr.L.J 1198 and Mir Hazar Malik.Vs.The State reported in 1999 SCMR 1377.
6. Conversely, Learned A.P.G, Sindh for the State, assisted by Mr. Mian Taj Muhammad Kerio, learned counsel for the complainant, has opposed the bail plea of the applicant, on the ground that the applicant is involved in a heinous offence, which falls within the Prohibitory clause of section 497(1)Cr.P.C and there is sufficient evidence against him, therefore, at this stage he is not entitled for concession of bail.
7. Heard learned counsel for the parties and perused the record available in the file.
8. The alleged incident had taken place on 06-02-2009, whereas the FIR was lodged on 07-02-2009; the name of the applicant does not appear in the FIR; none of the P.Ws has claimed to be eye-witness of the occurrence. During investigation it was found that two/three calls were made from the Cell Phone No.03219274983, to the Cell Phone of deceased, which was said to be in use of the applicant but the prosecution could not collect any evidence to show that the said Phone Number was either allotted to the applicant or in his use; even such sim was not recovered. The learned counsel for the State has referred the 161 Cr. P.C statements of P.Ws Aleem, Shakeel and Akeel, but in their respective statements they did not claim to be eye-witnesses of the occurrence, but merely stated that accused had confessed his guilt before police in their presence. Moreover, PWs Aqeel and Shakeel are brother-in-law of deceased. Learned State counsel further stated that murder of the deceased had taken place in Suzuki hi-roof vehicle and that same vehicle was recovered from the possession of Sarwar Abbas owner of Dyna Motor Karachi, but during investigation police did not record the statement of Sarwar Abbas in order to ascertain whether said vehicle was rented out to the applicant or not? As far as the recovery of Pistol from the applicant is concerned, the record reveals that the same was not sent to the Ballistic Expert nor the empty bullet was secured from the place of occurrence.
9. In Shahid Naseem’s case (supra), the accused was granted bail on the ground that two P.Ws who were relatives of the complainant alleged to have stated before the police that three days prior to occurrence accused had expressed his grievance before them against deceased and stated that deceased by carrying illicit connection with his mother had disgraced him in the village and that he would not spare deceased. Two other prosecution witnesses also alleged to have seen accused near place of occurrence shortly before incident at some distance from deceased. Evidence on record had shown that deceased was not seen by prosecution witnesses in the company of accused before occurrence.
10. In the case of Mir Hazar Malik (supra), the accused was admitted on bail by the Honourable Supreme Court of Pakistan, on the ground that his name did not originally transpire in the FIR and he was involved subsequently in the commission of the crime. Prosecution in support of its second version had relied upon the extra-judicial confession allegedly made by the accused before the prosecution witnesses.
11. For the foregoing reasons, I am of the considered view that there are no reasonable grounds to believe that the applicant has committed the above offence for which he is charged, but there are sufficient grounds to believe that his case falls under subsection (2) of section 497 Cr.P.C and requires further inquiry.
12. It was held by the Honourable Supreme Court of Pakistan in Manzoor.Vs.The State PLD 1972 SC 81 as under:-
“It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in Jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.”
13. Under the above circumstances of the case and following the principle laid down by Honourable Supreme Court, I allow this application and admit the applicant on bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees two hundred thousands only) and PR Bond in the like amount, to the satisfaction of trial Court.
14. The observations made in the above order are tentative in nature and will not prejudice the case of either party at the trial.
JUDGE.
A.C/P.A