ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application Nos. 635, 758 & 763 of 2013
Date Order with signature of Judge
Date of hearing 01.10.2013.
Mr. Ch.Munir Ahmed, Advocate for applicant in Cr.B.A.No. 635/2013.
Mr. Riaz Ahmed Bhatti, Advocate for applicant in Cr. B.A.No.758/2013.
Mr. Muhammad Akram, Advocate for applicant in Cr. B.A.No.763/2013.
Ms. Akhtar Rehana, Additional Prosecutor General, Sindh.
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SYED MUHAMMAD FAROOQ SHAH, J. :- By this common order I would like to dispose of Cr. Bail Applications Nos. 635 of 2013, 758 & 763 of 2013, filed separately for release of applicants on bail, arising out of similar Crime No. 155 of 2011, under section 302/376-ii/496-A/34 PPC, registered at police station Manghopir as the earlier applications filed before the learned trial court were dismissed.
2. Relevant precise facts as narrated in the FIR are that on 01.6.2013 SIP Ali Muhammad proceeded under section 174 of dead body of unknown woman aged about 30/35 years, having bullet mark on right cheek exited from left temple and another bullet injury entered from right shoulder, exited from other side. The dead body was lying in deteriorated condition in the bushes, which was brought at civil hospital, where the Medical Officer confirmed the cause of death due to bullets injuries and she was killed 3/4 days prior to medical examination. The body was shifted to Edhi Home, Sohrab Goth and thereafter SIP Ali Muhammad lodged the FIR under section 302 PPC against unknown persons to cause the murder of unknown lady.
3. The arguments advanced by Mr. Ch.Munir Ahmed, Advocate for applicant Abdul Qayoom were adopted by learned counsel for the remaining two applicants/accused. The contentions raised by Mr. Munir are reproduced as follows:-
Learned counsel argued that the applicants are innocent and have falsely been implicated by the police in commission of offence . It is contended that FIR has been lodged after delay of 3/4 days of recovery of dead body; that no identification parade has been held before the concerned Magistrate as it is well principle of law that the identification must be conducted by the witnesses and complainant, in view of following reported judgments:-
1. Muhammad Khalid V/S The State (2007 P.Cr.L.J. 1947)
2. Muhammad Suleman V/S Riasat Ali & another (2002 SCMR 1304)
3. Hussain Bux V/S The State (1994 P.Cr.L.J. 508)
4. Waqar Yousuf V/S The State (1992 P.Cr.L.J. 764)
5. Muhammad Alam V/S The State (2001 P.Cr.L.J. 86)
6. Allah Wasaya V/S The State (2004 P.Cr.L.J. 1659)
7. Shah Nawaz V/S The State (2004 MLD 1942)
8. Muhammad Raees V/S The State (2004 P.Cr.L.J. 611)
It is next contended that the applicants have been involved on the basis of extra judicial confession, recorded under section 161 Cr.P.C. Learned counsel further submitted that no legal sanctity is attached to a confession made before the police. Learned counsel submits that under Articles 38 & 39 of Qanun-e-Shahadat Order, 1984, the confessional statement of accused before police is not admissible. It is further submitted that as per memo of arrest nothing was recovered from the possession of applicants, therefore, on the basis of recovery of abandoned dead body, the applicants may not be involved, particularly, two examined PWs Mst. Naseem mother of the deceased and Zafar in their depositions did not implicate the applicants in commission of the offence; moreso, the instrument of murder viz. weapon has also not been recovered. It is argued that while rejecting the bail application, the learned trial judge neither discussed the citations relied upon by learned counsel, nor applied judicial mind and without perusing the material on record has rejected the bail applications and as a matter of fact from the finding of learned judge it clearly reveals that the matter require further enquiry. Learned counsel further contended that while making the search and arrest of the applicants, the provision of section 103 Cr.P.C. have also not been complied with as no independent person of the locality was examined to act as mashir. Learned counsel submitted that the bail cannot be withheld as punishment for the simple reason that it is a murder case.
4. Conversely, learned Additional Prosecutor General, Sindh, opposes the bail applications on the ground that the applicants are involved in a heinous offence but after perusing the case papers admitted that no identification parade was held before any Magistrate, nor any incriminating article including crime weapon has been recovered from their possession. He has also submitted that no legal sanctity is attached to the extra judicial confession under Article 38 & 39 of the Qanun-e-Shahadat Order, 1984, made before the police until recorded by any Magistrate. She has also admitted that it is an un-witnessed incident.
5. While considering the arguments advanced from both sides, it appears that on 18.11.2011 the applicants were arrested and since last about twenty two months they are behind the bars, though it is settled law that bail cannot be withheld as a punishment but the trial court while rejecting the bail has observed that the evidence of examined witnesses cannot be relied upon solely for grant of bail, which would be amount to deeper appreciation of evidence and same would influence the trial in either way.
6. In the case of ZIAUL REHMAN V/S THE STATE (2000 SCMR 528) the Hon'ble Supreme Court held that extra judicial confession alone without any corroboration is not sufficient to maintain any conviction thereon. In the case of MOLANA ABDUL AZIZ V/S THE STATE (2009 SCMR 1210) the Hon'ble Apex Court has held that if sufficient incriminating is lacking prima facie connecting the accused with the commission of alleged offence. Presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offence, consequently, the accused was admitted to bail. In another case of HAJI MUHAMMAD NAZIR V/S THE STATE (2008 SCMR 807) it is held that bail does not mean acquittal of accused but only change of custody from government agencies to the sureties, who on furnishing bond take responsibility to produce the accused whenever and wherever he is required to be produced.
7. It is an admitted position that name of applicants are not appearing in the FIR nor any incriminating material was recovered from their possession, implication of applicant is only on the basis of their statement recorded by the police, having no legal sanctity under Article 38/39 Qanun-e-Shahadat Order 1984. Both examined witnesses including mother of victim did not involve the applicants in commission of offence. More so, neither there is any eye-witness of the incident nor any incriminating material had been placed on the record to suggest the involvement of applicant in commission of offence. Resultantly the applicants are entitled to grant of bail.
8. The above are the reasons of short order dated 01.10.2013, whereby the applicants were admitted to bail upon furnishing sureties in the sum of Rs. 200,000/-(Rupees two lacs only) each and P.R. Bond to the satisfaction of trial court.
*Aamir/PS* J U D G E