ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Bail. Appl. No.S-516 of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

For hearing.                           

20.08.2010

Mrs. Razia Ali Zaman Khan Advocate for applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh

Mr. Ishrat Ali Lohar Advocate for the complainant.

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AHMED ALI M. SHAIKH J:            By this order I intend to dispose of Cr. Bail Application No.516/2010 filed by the applicant Abdullah whereby he seeks post arrest bail in crime No.22/2010 of P.S Tando Ghulam Hyder registered u/s 302, 324, 201, 114, 34 PPC.

2.         Contents of prosecution case in nutshell are that on 18.04.2010 Azeem Khan @ Baboo got registered the case stating therein that his niece Mst. Khair Nisa @ Nisha D/o late Shamsuddin aged about 18 years was married to Habibullah S/o Abdullah. On 16.04.2010 he came to know that his niece Khair un Nisa @ Nisha has been burnt due to fire and admitted in Civil Hospital Karachi. He went to Karachi, where he met with Khair un Nisa @ Nisha, where police was also present. In presence of the doctor, Mst. Khair un Nisa @ Nisha stated that after her marriage her mother in law and husband Habibullah used to beat her and were compelling her to get hand over her property to them otherwise she would be murdered. She further stated that on 15.04.2010 at about 6.00 a.m. her husband and mother in law Mst. Khair un Nisa @ Nisha locked her in the bath room, sprinkled the petrol upon her and set her on fire. She raised cries which attracted villagers who arrived there. She put herself under the water , came out from the bath room and fell down.

3.         The applicant approached the trial court for bail but his bail plea was turned down by the Additional Sessions Judge, Tando Muhammad Khan vide order dated 26.06.2010.

4.         It is inter alia contended by the learned counsel for the applicant that the applicant is innocent and has nothing to do with the alleged offence. Per learned counsel no specific allegation is leveled against the applicant and during investigation prosecution could not collect any piece of evidence to show his nexus with the alleged offence. It is further contended that the applicant has been falsely involved as he is father of co-accused Habibullah. It is urged with vehemence that the FIR is false and the complainant has suppressed the real facts. She lastly contended that from the contents of FIR it appears that at the time of alleged incident present applicant was not present; no specific role is assigned to the applicant. Per learned counsel deceased Mst. Khair un Nisa @ Nisha  in her statement dated 16.04.2010 recorded before Dr. Karar Ahmed Abbasi, did not level any allegation against the present applicant/accused, therefore, case of the applicant requires further inquiry.

5.         Conversely, Syed Meeral Shah Deputy Prosecutor General Sindh and Mr. Ishrat Ali Lohar Advocate for the complainant opposed the bail plea of the applicant on the ground that sufficient material has been collected during investigation against the applicant/accused which prima-facie shows that he is involved in the above offence.

6.         Heard learned counsel for the parties and perused the record. Upon perusal of FIR, it appears that the name of the applicant does not appear in the FIR. Record reveals that on 16.04.2010, statement of Mst. Khair un Nisa @ Nisha was recorded in presence of Dr. Karar Ahmed Abbasi, MLO Civil Hospital Karachi, in which she did not disclose the name of present accused, however, on 22.04.2010 in her 161 Cr.P.C statement, she has alleged that on the instigation of applicant, her husband and mother in law Mst. Madina locked her in the bath room sprinkled petrol and set her on fire. Admittedly, there are two statements of deceased Mst. Khair un Nisa @ Nisha and in her earlier statement she did not level any allegation against the present applicant, however, in her subsequent statement she has implicated him and stated that on his instigation she was set on fire. It is pertinent to mention that first statement of the deceased was recorded in presence of Dr. Karar Ahmed Abbasi MLO Civil Hospital Karachi, such statement is duly signed by the above named doctor. So for the subsequent statement of deceased is concerned, the same has been recorded after the delay of six days from previous statement and after eight days from the incident. Even during the investigation, prosecution could not collect any piece of evidence against the present applicant which could corroborate subsequent statement of deceased Mst. Khair un Nisa @ Nisha . Since there are conflicting statements of deceased Mst. Khair un Nisa @ Nisha  and it is yet to be determined which statement is true. For the foregoing reasons, I am of the considered view that the case of the applicant requires further inquiry. Consequently I allow this application and admit the applicant on bail subject to furnishing surety in the sum of Rs.200,000/- with P.R bond in the like amount to the satisfaction of the trial court.

7.         These are the reasons in support of short order dated 18.08.2010, whereby bail was granted to the applicant/accused.

                                                                                                JUDGE

A.K