ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 739 of 2010.
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Date Order with signature of Judge |
Present before: Ahmed Ali M. Shaikh, J
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1. For order on M.A No. 3858/2010. 2. For Hearing 02-08-2010
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Lal Khan and an other |
………………Applicant
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Versus |
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The State |
…………….Respondent |
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For the Applicant |
Mr. Mehmood A. Balaoch, Advocates -.-.-.-.-.-.-.-.-.-.- |
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For the Respondent |
Ms. Rahat Ihsan D.P.G for the State. |
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Date of hearing: |
02-08-2010 |
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AHMED ALI M. SHAIKH, J: Through this application, the applicants seek post arrest bail in crime No. 302/34 P.P.C of Police Station Docks, Karachi.
The applicants approached the trial Court for bail but their bail plea was turned down by trial Court vide order dated: 13.07.2010.
On 15.05.2009, a case bearing F.I.R No. 169/2009 was registered at Police Station Docks, Kiamari Town Karachi. The contents of the F.I.R reads as under:-
On 26.04.2009, he came from Azad Kashmir and started residing in the house of her brother Muhammad Sadiq, situated at Neelam Colony. His son Yasir Hussain age 22 years since lat 2 years and 2 months came at Karachi for working and performing duty at the grave of mother of Dr. Aamir Liaquat Hussain as a Chowkidar and also selling rings another artificial jewelries at the temple of Abdullah Shah Ghazi. Before this his son also done his job at the hotel and one Abdullah became his friend at the temple of Abdullah Shah Ghazi. During this the said Abdullah also arrested in criminal case, who gave his place to his son and told him to send him amount for the proceedings of criminal case and when he returned back from the jail then he told his son to vacate his place. On reply his son told that the Seth directed to look after the grave of mother of Dr. Aamir Liaquat Hussain and to sit in the place on such the said Abdullah started quarreling with his son since last 2/3 months and his son also reported the matter at P.S Boat Basin. 2 months before the said Abdullah alongwith his companion came to him at Azad Kashimr and told that his son occupied over his place and demanded Rs.300,000/- from him but he refused to give him said amount and at the time of going he issued threats that he will kill his son. One month before his brother informed him that his son is missing. On such he immediately reached at Karachi on 26.04.2009 reported the matter at P.S Boat Basin about missing of his son but his son not traced. Today SI Muhammad Ziafat informed him that from the house situated at Machar Colony, one dead body of young boy recovered and from his pocked one diary recovered and in the said diary our numbers were recovered, therefore, to reach at Civil Hospital. On such he reached at the Civil Hospital and identified the dead body of his son. Now he is recording his statement.
It is interalia contended that applicants are innocent and have been falsely involved in this case. Per learned counsel, the F.I.R was registered with inordinate delay without any explanation. He has further contended that the names of the applicants do not appear in the F.I.R. During course of evidence prosecution could not collect any piece of evidence to show any nexus of the applicants with the alleged occurrence. Per learned counsel at the most this is case of last seen evidence and the case of applicants falls within the ambit of sub-section (2) of section 497 Cr.P.C and requires further inquiry. In support of his contentions he has relied upon the case of Farman Ali and another versus THE STATE (2004 P Cr. L J 629 Lahore).
On the other hand, Ms. Rahat Ihsan learned D.P.G for the State vehemently opposed the bail application on the ground that there is sufficient evidence against the applicants and they do not deserve the concession of bail. In support of her contentions, she has relied upon the cases of Mst. Robina Bibib versus THE STATE (2001 S C M R 1914), Muhammad Arif and another versus THE STATE (2002 M L D 1082), Asghar Khan versus THE STATE and 2 others (2004 P Cr. L J 1252).
Heard the arguments of learned counsel for the parties and perused the record.
No doubt the names of the applicants do not find place in the F.I.R, but P.W Raja Muhammad Zubair in his 164 Cr.P.C statement has implicated them that on 12.04.2009 deceased Yasir went with the present applicants, further more the applicants have pointed out the place of occurrence from where the dead body of the deceased was recovered. Though one of P.Ws namely Zahid who is son of the land lord of the house from where dead body was recovered also corroborated the version of P.W Muhammad Zubair, though some extent. During the investigation, the applicants also disclosed the manner in which they committed the murder of deceased. With profound respect, the facts of the case relied upon by the learned counsel for the applicant are quite distinguishable and not applicable to the case in hand as in Farman Ali’s case (supra) the applicant/accused was admitted on bail on the ground that despite the fact that two prosecution witnesses had informed the complainant that they had seen the accused throwing his brother in the canal, he did not report the matter to the police for 10 days and continued his private search. Another aspect of the case was that per F.I.R accused had grudge against the complainant and not against his brother. Though this is the case of last seen evidence as the deceased was seen alive in the company of applicants, before the time he was present to have made his death, hence inference can reasonably be drawn that accused is responsible for the death of the deceased. Even during the course of investigation, the applicants led the police party to the place from where the dead body of the deceased was recovered. No doubt, the F.I.R is belated but the complainant did not nominate the present applicants in the F.I.R, therefore, there is no malafide on the part of complainant if he had such intention naturally he would have nominated the present applicants as accused in the F.I.R, but he did not do so. However applicants have been implicated by P.W Raja Muhammad Zubair, who has no enmity with the applicants.
For the foregoing reasons, I am of the considered view that a prima facie case exits against the applicants and they do not deserve the concession of bail, consequently bail application is dismissed.
The observations made in this order are tentative in nature and trial Court shall not be influenced by observations.
JUDGE
Karachi
Dated .
Abdul Salam/P.