Order Sheet.

 HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

 

CR. B.A.NO.S-688 OF 2009.

 

Akbar and another. . . . . .Versus. . . .The State.

Date              Order with signature of Judge

 

            FOR HEARING.

 

Date of hearing:   01.03.2010 & 15.03.2010.

Date of order:        19.03.2010.

 

      Mr. Amjad Ali Sahito, Advocate for the applicants.

 

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

 

Mr. Nazeer Ahmed Bhatti, Advocate for the complainant.

. . . .

 

MUHAMMAD ALI MAZHAR,J.-    Through this criminal bail application, the applicants Akbar and Saleem  have applied for bail in Crime No.244 of 2009, registered under sections 302, 148, 149, 365-B, 504 and 496 P.P.C.

2.    Bail plea of the applicants was declined by the learned IIIrd Additional Sessions Judge, Dadu, vide order dated 27.10.2009 in Sessions Case No.319 of 2009.

3.    Facts of the prosecution case, in brief, are that complainant Habibullah Panhwar lodged F.I.R. on 29.5.2009 at 1630 hours, stating therein that applicant Akbar demanded the hand of his sister Mst Tasleem for his brother Rehmatullah, but they refused. It is alleged in the F.I.R. that on 28.5.2009, the complainant alongwith Azeem, Rafiq and sister-in-law Mst Zamiran, aunt Mst Rahman and sister Mst Tasleem and other family members after taking night meal went to sleep after closing the house through hedge. On 29.5.2009 at 4.00 a.m. the complainant and family members woke up on the dogs' barking and saw that accused Akbar (applicant No.1), Allahditto, Rehmatullah alias Namu armed with DBBL guns, Saleem (applicant No.2), Abdul Ghafoor and Usman alias Ghulam Muhammad armed with SBBL guns were present. Accused Akbar, Allahditto and Rehmatullah made straight fire upon Mst Zamiran, Mst Raheeman and Usman made straight fire upon Rahiman. The accused Habibullah forcibly dragged Mst Tasleem outside the house. Thereafter all the accused persons kidnapped Mst Tasleem forcibly and went away towards northern side. The complainant party saw that Mst Raheeman received (3) firearm injuries on left side and Mst Zamiran received (3) firearm injuries on her chest and abdomen. Both ladies due to said injuries died and the complainant lodged the F.I.R.

4.    After usual investigation, final Challan was submitted in the Court and the case is pending trial before the Court of IIIrd Additional Sessions Judge Dadu.

5.    Heard the learned counsel for the parties and with their assistance perused the police papers.

6.    Mr. Amjad Ali Sahito, learned counsel for the applicants has argued that story narrated in the F.I.R. is false as Mst Tasleem was not abducted/kidnapped by the applicant, nor any such incident as narrated in the F.I.R., had taken place. He further argued that there is no independent witness of the alleged incident and all the witnesses are related interse. He also argued that complainant party himself committed murder of Mst Rahiman and Mst Zamiran and the case is based on personal enmity, which fact is clearly mentioned in the F.I.R. that the applicant demanded "Rishta" of Mst Tasleem for his brother Rehmatullah, which the complainant had refused. Learned counsel for the applicant further argued that no incident was taken place and in fact Mst Tasleem married with brother of the applicant on 28.5.2009 and the alleged abductee also sworn her affidavit of freewill on the same day. He further argued that Rehmatullah, Usman and applicant No.2 filed a C.P.No.333 of 2009 before the Divisional Bench of this Court, in which they prayed for the quashment of F.I.R. No.244 of 2009. Alongwith the bail application, he also annexed copy of Nikahnama of Mst Tasleem with Rehmatullah, freewill of Mst Tasleem and affidavit of Mst Tasleem, which she had submitted in this Court in C.P.No.D-333 of 2009. Para-4 of the affidavit says that she was not kidnapped or abducted or enticed by anyone but in fact on 27.5.2009 she left the house of her brother, as her brother intended to get her married with Haji Panhwar who was an old person. She further stated in her affidavit that she by her own freewill married with Rehmatullah. Learned counsel for the applicant also pointed out statement of Mst Tasleem recorded under section 161 Cr.P.C. on 13.6.2009 in which, she stated almost same facts. The applicants have also attached statement of Mst Tasleem recorded under section 164 Cr.P.C. before the III-Civil Judge & Judicial Magistrate Dadu. The learned counsel for the applicant has also pointed out a report of District Police Officer Jamshoro submitted to Deputy Inspector General of Police Hyderabad Zone on 18.7.2009. In this report, the District Police Officer Jamshoro tendered his opinion that there is no substantial evidence against Rehmatullah and his brother for the involvement in the murder case, therefore they may be exonerated from the charge of murder case. He further argued that there are two sets of statements, one statement given by Mst Tasleem, from which it is transpiring that she on her own accord solemnized marriage with Rehmatullah, the brother of the applicant, and there was no case of abduction, while the contents of F.I.R. show that Akbar, Allah Ditto, Habibullah and Usman Panhwar by causing gunshot injuries had killed the complainant's sister and aunt and kidnapped his sister Mst Tasleem by force of weapons with intention to commit zina. The learned counsel for the applicant has next argued that this is a fit case of further inquiry and while passing the impugned order, the learned trial Court did not consider all said facts. In support of his contention the learned counsel for the applicant has relied upon a judgment reported in 2009 S C M R 1210, in which the bail was allowed on the ground that sufficient incriminating material was lacking connecting the accused with the commission of the alleged offence. In the same judgment, it was further held that where evidence on record is vague and sketchy and prosecution version leaves much to be inquired into, the bail may be granted by pressing into service the concept of further inquiry, as envisaged under section 497(2) Cr.P.C. It was further observed in the same judgment, that accused can claim admission to bail as a right where Court finds reasonable ground to believe that he is not guilty of the offences leveled against him. Besides, above case law, learned counsel for the applicants further relied upon a judgment reported in 2005 P Cr. L J 462, in which it was held that police opinion though, is not binding on the Court, yet it may be taken into consideration while deciding such like question. In the above referred case, three Investigating Officers had found that accused had caused injury to none and was mainly present at the spot empty handed.

7.    The learned A.P.G. vehemently opposed the bail application and from police file, he argued that the statements under section 161 Cr.P.C. were recorded and two eye witnesses namely Azeem and Rafique have fully supported the version of the complainant. He also argued that murder has not been denied, the medical evidence also supported the version of the complainant, empties were found and the death was caused due to firearm injuries. He further stated that Mst Tasleem is simply supporting the accused persons due to her alleged marriage with one of the accused.

8.    The learned counsel for the complainant also adopted the arguments of learned A.P.G and further added that both the applicants are involved in a heinous crime whereby two women were murdered. Learned counsel for the complainant has relied upon a judgment reported in 2004 S C M R 1018, in which it was held that besides the F.I.R. eye witnesses in their statements under section 161 Cr.P.C. had implicated the accused for the offence and deeper appreciation of the prosecution case was not ordinarily undertaken. In this case the High Court refused the bail, the Honourable Supreme Court maintained the order and refused leave to appeal. The learned counsel for the complainant  has further relied upon a judgment reported in P L D 1994 (Supreme Court) 172, in which, the Honourable Supreme Court held that the finding of Investigating Officer holding the accused innocent is not justified. Specific role assigned to the accused in the F.I.R. fully supported by the eye witnesses. In this case also, the bail was refused by the High Court, which was maintained by the Honourable Supreme Court and the leave was refused. He further relied upon 2002 S C M R 1876. This judgment is distinguishable as it pertains to the cancellation of bail and is not relevant to the facts and circumstances of the present case.

9.    I have heard the arguments of learned counsel for the parties and perused the record made available. Though the alleged abductee Mst Tasleem in her affidavit and freewill stated that she was not abducted but solemnized marriage with Rehmatullah, the brother of the applicant, on 28.5.2009, but in her affidavit filed in the High Court she said that she left the house on 27.5.2009 while in her statement recorded under section 161 Cr.P.C. she stated that she left the house on 26.5.2009, while in her statement recorded under section 164 Cr.P.C. she only mentioned the date "26" and did not remember the month and in her affidavit of freewill also no date has been mentioned as to when she left the house, which creates doubts. The two eye witnesses Azeem and Rafique, clearly involved the applicant No.1 in the said crime, which cannot be overlooked. The Challan has already been submitted, therefore, the inquiry allegedly conducted by District Police Officer Jamshoro and submission of his report on 18.7.2009 to Deputy Inspector General of Police Hyderabad Zone has no relevancy at this stage. While conducting the alleged inquiry by the District Police Officer Jamshoro, neither the complainant was given any opportunity to attend nor the statement of any eye witness was recorded. The District Police Officer in his alleged report only mentioned the names of seven witnesses with the simple statement that all the above witnesses endorsed the version of applicant Ali Hassan, uncle of accused Rehmatullah, who requested for an inquiry. This report is not a part of the investigation conducted in Crime No.244 of 2009 and the witnesses cited in this report were neither present at the site of incident nor they were the eye witnesses, so the said statements of the witnesses cannot be given preference over the statements of eye witnesses of the incident. Even otherwise, it is very much clear that the report of Investigating Officer is not binding upon the Court and this report even was not submitted by the Investigating Officer but a part of an inquiry conducted separately on the request of one Ali Hassan, uncle of accused Rehmatullah, therefore, this report does not merit any consideration for bail when specific role has been assigned to applicant No.1 Akbar and he has also been implicated by the eye witnesses of the incident. The Challan has been submitted in the trial Court on 16.6.2009, in which (12) witnesses have been cited and no witness is common in the Challan and District Police Officer's report. Mst. Tasleem in her affidavit maintained that at the time of incident she was not present but in her statement recorded under section 161 Cr.P.C. she has leveled allegations that her relatives had killed Mst Raheeman and Mst Zamiran, while in her 164 Cr.P.C. statement, she stated that murder was committed to which she has no knowledge. The statements of Mst Tasleem are contradictory. Even in the grounds of bail application, it has been alleged that complainant party itself committed murder of two ladies Mst Raheeman and Mst Zamiran out of aggression & annoyance, they themselves killed them in order to save their own skin, this contention seems to be illogical and irrational. For the purpose of deciding a bail application, Court is required to examine and appraise the prosecution evidence with a view to observe not only the facts of the prosecution case but also to make out a tentative assessment of the possibility of the offence having taken place, as claimed by the prosecution and the question of prima facie, involvement of the accused specially in cases which are punishable with death, imprisonment for life or ten years so as to determine whether the case falls within the prohibition contained in section 497 Cr.P.C. While hearing a bail application, at the initial stage of the case, the Court has to consider the allegations made against the accused in F.I.R., evidence which the prosecution proposes to produce before the Court, the defence plea raised by the accused and has to make a tentative assessment. The case law reported in 2009 S C M R 1210, relied upon by the learned counsel for the applicants is not helpful to the applicant, as in this case, the Honourable Supreme Court allowed the bail to the applicant on the ground that sufficient incriminating material was lacking, prima facie, connecting the accused with the commission of the alleged offence, but in the present case, the version of the complainant was supported by two eye witnesses with clear statement recorded under section 161 Cr.P.C. The another judgment reported in 2005 P Cr.LJ 462, relied upon by the learned counsel for the applicants, is also not helpful to the applicants, as in that case three Investigating Officers had found that the accused had caused injury to none and was merely present at the spot empty handed. In the present case there is no report of Investigating Officer but the learned counsel for the applicants is simply relying upon a District Police Officer's report, which is based on one sided version. The case law reported in 2004 SCMR 1018, relied upon by the learned counsel for the complainant is applicable in the present circumstances in which, the leave was refused against the order of the Lahore High Court declining the bail. In this judgment, the Honourable Supreme Court has held that besides the F.I.R., eye witnesses in their statements under section 161 Cr.P.C. had implicated the accused as a principal accused of the offence and bail was rightly declined. In the F.I.R. specific role has been assigned to the applicant No.1 that he alongwith the co-accused Allah Ditto, and Rehmatullah made straight fires from their guns and killed two women and this version has been fully supported by the two eye witnesses namely Rafique and Azeem in their statements recorded under section 161 Cr.P.C. on 31.5.2009.

10.   Keeping in view the above facts, applicant No.1, Akbar S/o Usman is not entitled to the concession of bail, therefore, his bail application is hereby rejected.

11.   So far as the case of applicant No.2 Saleem is concerned, no role has been assigned to him in the F.I.R. but his name is only mentioned with other co-accused without any allegation. The direct allegations are against the accused Akbar, Allah Ditto and Rehmatullah, who allegedly made straight fires from their guns upon the sister-in-law and aunt of the complainant with intention to kill them. Even in the conclusion of F.I.R. the complainant again repeated that the above accused by causing gunshot injuries have killed his sister-in-law and aunt and kidnapped his sister Mst Tasleem on the force of weapons. Throughout the F.I.R. no specific role has been assigned to applicant No.2 Saleem, therefore, in my view the applicant No.2 Saleem S/o Usman is entitled to the concession of bail and his case may be treated a case of further inquiry. Accordingly, the applicant No.2 Saleem is granted bail subject to furnishing solvent surety in the sum of Rs.100,000/- (One Lac) with P.R Bond in the like amount to the satisfaction of the trial Court.

12.   The trial Court is directed to conclude the trial within a period of three months and report compliance. However, during the course of trial, applicant Akbar may move successive bail application on some new ground or development, if any, come to the light during trial.  

      Bail application disposed of accordingly.

 

                                                      JUDGE

 

S.