IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.2706 of 2025
Criminal Bail
Application No.599 of 2025
|
DATE |
ORDER WITH
SIGNATUREs OF JUDGEs |
For
hearing of bail applications
--------------------------------------------
06.03.2026
Mr.
Wazir Hussain Khoso, advocate for applicant in B.A. 2706/2025
Mr.
Asadullah Shah Rashidi,
advocate for applicant in B.A. 599/2025
Mr.
Sharafuddin Kanhar, A.P.G.
Mr.
Nusrat Ali Shar, advocate
for complainant
SIP
Syed Mushtaque Ali Shah, SIO Shahrah-e-Faisal
East, Karachi
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Applicant/accused Shank Sharma son
of Karan Babu seeks post arrest bail, through Cr.
Bail Application No.2706/2025 and applicants/accused Preeti
Sharma daughter of Sanjay Kumar Sharma and Jai Kumar son of Haresh
Kumar seek pre-arrest bail, through Cr. Bail Application No.599/2025, in FIR
No.1134/2024, registered at P.S. Shahrah-e-Faisal,
Karachi for offence under Section 302, 397, 120, PPC, after dismissal of their
bail pleas by learned Additional Sessions Judge-X, Karachi East vide orders dated 10.03.2025 and 04.03.2025, respectively.
2.
Facts depicted in
the impugned orders are reproduced here as under:
“Deceased
Rahul, husband of accused Preeti Sharma was murdered
on 02.12.2024 in his flat bearing No.805, 8th Floor Nickon Building, Block-19, Gulistan
e Johar, Karachi, at about 2110 hours, in presence of
accused Preeti Sharma (wife). Complainant Katesh Kumar, brother of deceased was accordingly intimated
by accused Preeti Sharma, who disclosed to him that
on the fateful day one person came into the flat and being known to deceased,
he was brought inside in a room of the flat, whereas, the wife was asked to
remain in another room. After a while accused Preeti
Sharma as per her version heard noise and cries accordingly she went inside to
that room where she saw that his husband was lying on the floor and the blood
was oozing out of his body. The said murderer threatened her to remain silent,
tied her hands and mouth with her own scarf, the feet with the shirt of
deceased and after looting gold jewelry, mobile phones of deceased as well as
of the accused Preeti Sharma (wife) fled away”.
On
such information the complainant i.e. brother of the deceased lodged FIR on
08.12.2024, on his arrival at Karachi, after burial ceremony; however,
subsequently the complainant got recorded his further statement u/s 162 Cr.PC wherein he implicated applicants/accused Shank Sharma
and Preeti Kumar and three other as suspected
accused.
3. Learned counsel for the
applicants/accused jointly argued that the applicants/accused are innocent and
they have been falsely implicated in this case due to mala fide intentions and
ulterior motives; that the complainant is not the eyewitness of the alleged
incident and the applicants are not nominated in the FIR and the alleged
incident is unseen; that there is delay of six days in lodging of FIR without
plausible explanation; that after 29 days of registration of FIR the
complainant recorded his further statement under Section 162, Cr.PC wherein he implicated Preeti
Sharma, Jai Kumar, Dharmendar, Sanjay Kumar, Rashi Babu and Shank Sharma; that
during investigation Dharmendar, Sanjay Kumar, Rashi Babu were found innocent
and their names were placed in Column No.2 of the charge sheet by the IO; that
only piece of evidence against applicant/accused Shank Sharma is identification
parade of PW Malik Muhammad Hussain, who is watchman,
which was conducted with a delay of 8 days after getting three remands of
applicant/accused Shank Sharma; that IO collected CCTV footage, which shown a suspected
killer was muffled face wearing wig and cap on his head entered in the premises
but IO did not get the forensic of CCTV footages; that there is no direct
evidence against the applicants/accused; that only piece of allegation against
applicants Preeti Kumar and Jai Kumar is that they
hatched conspiracy, which requires further inquiry in terms of Section 497(2), Cr.PC. In support of their contentions, learned counsel for
applicants relied upon 2024 SCMR 479, PLD 1996 SC 241, 2021 SCMR 2011, 2008
SCMR 807, and 2022 YLR 136.
4. On the other hand, learned A.P.G.,
assisted by learned counsel for complainant opposed for grant of bail on the
ground that during investigation, IO
recorded further statement of complainant wherein he implicated
applicants/accused Preeti Kumar, Shank Sharma and Jai
Kumar, who allegedly hatched conspiracy to commit murder of deceased Rahul;
that IO got recorded statements of all independent witnesses, namely, Hafiz
Muhammad Hussain, Malik Muhammad Hussain
and Sabir, who implicated applicants for commission
of offence; that PW Malik Muhammad Hussain identified
applicant Shank Sharma through identification parade; that IO also recovered
mask, cap and wig, wearing by applicant Shank Sharma at the time of alleged
incident, that IO collected CCTV footages from place of incident; that the
alleged offence is a heinous one and it carries capital punishment, therefore,
they are not entitled for grant of post arrest as well as pre-arrest bail; that
applicants failed to prove their case on the point of mala fide. In support of
their contentions, learned A.P.G. and learned counsel for complainant have
relied upon the cases of Judgment dated 26.08.2020 passed in Criminal Petition
No.1721-L/2019 (Abdu Bakar Siddique
vs The State and Others), 2016 PCr.LJ
Note 73, Judgment dated 10.06.2024 passed in Criminal Petition No.201-K/2023
(Muhammad Ali Mazhar versus The State), Judgment
dated 07.10.2020 passed in Criminal Petition No.77-P/2020 (Imtiaz
vs Azam Khan & Others),
2024 SCMR 1071, Judgment dated 08.03.2015 passed in Cr. Bail Applications Nos.S-218
& 219 of 2015 (Rab Nawaz and Others vs The State), Judgment dated 17.07.2023 passed in Cr. B.
A. Nos.701/2022, 788/2022, 800/2022 and 801/2022 (Saadat
Ahmed & Others vs. The State), 2024 SCMR 2052021 MLD 1912, 2020 YLR Note
80, 2013 YLR 2522, 2021 YLR 2233, 2005 YLR 3357.
5. Heard learned counsel for the applicants/accused,
learned A.P.G., learned counsel for complainant and perused the material
available on record.
6. There
is delay of six days in lodging of FIR, without plausible explanation as the
alleged incident occurred on 02.12.2024 whereas FIR was registered on 08.12.2024. Complainant
is not the eyewitness of the alleged incident. In fact, alleged Incident is
unseen. Complainant recorded his further statement after 29 days of
registration of FIR, which was recorded on 07.01.2025 wherein he has suspected
applicants/accused Shank Sharma, Preeti Kumar and
co-accused Dharmendar, Sanjay Kumar and Rashi Babu as accused who hatched
conspiracy and are involved in the murder of deceased Rahul without disclosing
any source of information, however, during investigation Co- accused Dharmendar, Sanjay Kumar and Rashi
Babu were found innocent and the IO released them and
placed their names in Column No.2 of the charge sheet. During investigation,
Crime Scene Unit collected evidence from the place of incident, including
fingerprints, which did not match with DNA as well as fingerprints of the
applicants/accused. Applicant Preeti Kumar is wife of
deceased whereas applicants/accused Shank Sharma and Jai Kumar are cousins of Preeti Kumar. During investigation applicants/accused Shank
Sharma and Jai Kumar have taken plea that at the time of alleged incident they
were available at Port Grand City Hotel and they moved application before the
learned concerned Magistrate as well as Ex-Officio Justice of Peace in order to
get direction to the IO to collect CDR of Shank Sharma and Jai Kumar as well as
CCTV footages of the said Hotel, however, despite directions of Ex-Officio
Justice of Peace to IO, he did not collect the CCTV footages of the hotel as
well as CDR of Shank Sharma and Jai Kumar. During investigation IO also
collected CCTV footages of the Project where the alleged incident occurred. The
CCTV footages shows that one person, who was wearing mask on his face, wig and
cap on his head, entered into the premises and after, the incident he left the
premises but the IO did not verify CCTV Footages from forensic expert. Other
piece of evidence collected by the IO is wig, cap and mask from the bushes of
Port Grand City Hotel but surprisingly he did not collect CCTV footages from
Port Grand City Hotel despite directions sought by applicants from Ex-Officio
Justice of Peace to the IO. So far as the identification parade of applicant
Shank Sharma is concerned, he was identified by PW Malik Muhammad Hussain, who was watchman of the building, and it was
conducted after 9 days of arrest of applicant/accused Shank Sharma, after
getting his three remands by the IO. At this stage, fact cannot be ignored that
Killer was wearing mask, wig and cap at the time of incident. In a case of Naveed Sattar reported in 2024
SCMR 205, Apex Court granted bail by holding that the identification parade was
conducted after accused’s nomination by the complainant and in such
circumstances, prima facie the sanctity of such identification parade test is
open for determination.
7. Case
has been challaned, the applicants are no more
required for further investigation and they are facing the trial. No any
incriminating material recovered from possession of applicants. From tentative
assessment of record, it appears that the case of applicants/accused requires
further probe in terms of Section 497(2), Cr.PC. In
this regard, reliance is placed on the cases of Roidad
Khan versus The State and another (2022 MLD 660) and Abid
Ali alias Ali versus The State (2011 SCMR 161). In these circumstances, it is the trial Court who, after
recording of evidence, would decide about the guilt or otherwise of the
applicants/accused and till then the applicants/accused cannot be put behind
bars for an indefinite period, as held by the Supreme Court of Pakistan in the
case of SAAD ZIA versus The State and others (2023 S C M R 1898). It is settled proposition of law that merits of the
case can be considered in pre-arrest bail as held by the apex Court in the case
of Muhammad Ijaz versus The State (2022 SCMR 1271).
8. In view of the above, instant criminal
bail applications are allowed. Resultantly, interim pre-arrest bail granted to
applicants/accused Preeti Sharma and Jai Kumar by
this Court vide order 07.03.2025 is confirmed on the same terms and conditions
whereas applicant/accused Shank Sharma son of Karan Babu
is granted post arrest bail in the aforesaid FIR, subject to furnishing solvent
surety in the sum of Rs.500,000/- (Rupees Five
Lac) and P.R. bond in the
like amount to the satisfaction of the trial Court. Applicants/accused are directed to join the trial forthwith.
9. Needless to mention here that the above
observations are tentative in nature, the same would
not prejudice the case of either party at trial.
10. The captioned criminal bail applications
are disposed of in the above terms.
J U D G E
Gulsher/PS