Criminal Bail Application No.1109 of 2014
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar
Date of hearing : 26.11.2014
Date of order : 12.12.2014
Applicant : Sikandar Ali through
Mr. Mehmood A. Qureshi along with Mr. Jamshed Iqbal, advocates.
Versus
Respondent : The State through
Mr. Ali Haider Saleem a/w DSP Razi Khan Almani, I.O.
Complainant : Hunain Tariq through
Mr. Anwar Mansoor Khan, advocate along with Mr. Pir Asadullah Rashdi, Advocate.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 13.06.2014 passed by the learned Judge, Anti Terrorism Court Hyderabad @ Hyderabad, in ATC Case No.91/2014 in Crime No.12/2014 registered at P.S. GOR, Hyderabad, under Sections 302, 114, 109, 34 PPC read with Section 6/7 of Anti Terrorism Act, 1997, whereby the bail application filed by the applicant Sikandar Ali Lashari son of Ali Muhammad Lashari was dismissed, the applicant has filed instant bail application under Section 497 Cr.P.C. read with Section 21-D ATA 1997, seeking his release on bail during pendency of the trial subject to furnishing solvent surety.
2. Brief facts as stated in the aforesaid FIR and noted by the learned trial Court are that on 20.02.2014, the complainant Hunain Tariq son of Tariq Hussain lodged an FIR at P.S. GOR, Hyderabad, stating therein that “he is student in Sindh University and resides with his uncle Mr. Khalid Hussain Shahani, Sessions Judge Jacobabad at the address as given in the FIR, whereas, his uncle Khalid Hussain Shahani has three sons, and Aaqib Hussain, aged about 18 years, is the elder son, who was the student of 1st year at Hamdard University, Karachi. It is further stated that on 19.02.2014, the complainant along with his cousin Aaqib Hussain, mother of Aaqib Hussain namely, Shamsunnisa, sisters namely Komal and Nimra and younger brother Adil, left in their car after Maghrib prayer, they visited one Aijaz Khaskheli and his family at Judicial Complex, Hyderabad and after meeting them at about 09:30/10:00 p.m. left for their home in the same car. Aaqib Hussain was driving the Car, whereas, his mother Mst.Shamsunnisa was sitting on the front seat and brother Adil, sisters Komal & Nimra and the complainant were sitting on the rear seat of the car, and when they were passing through Thandi Sarak, towards internal road of Niaz Stadium at about 10:25 p.m. and when they reached on the southern corner of WAPDA Sports, a silver colour corolla car suddenly came from behind and stopped our car by jamming their car. Four persons armed with pistols came out from that car opened the door of Aaqib Hussain, asked for his name and further inquired that are your son of Khalid Hussain, Sessions Judge and studying in Hamdard University, Karachi. After asking the same question about 4/5 times they got out Aaqib Hussain from the car, the man sitting on driving seat of the said car shouted that he is Aaqib Hussain, do not spare him and kill him. On such instigation, two of them get hold of Aaqib Hussain from arms and one of them fired at Aaqib Hussain from pistol about 15-16 shots, whereafter, Aaqib Hussain, fell down and the accused persons still fired shots at Aaqib Hussain, thereafter, the man, who fired at him said that he is dead. The complainant, the mother of Aaqib Hussain and his brother and sisters got terrorized due to heavy firing could not come out of the car, thereafter, all the accused persons fled away from scene in their car. It has been stated in the FIR that the complainant and the family members of the deceased saw the accused persons in the light of their car, hence they can recognize them on seeing again. After the incident, the complainant and the family members of Aaqib Hussain came out from their car and saw that Aaqib Hussain was lying dead and the blood was oozing out from his body, who was taken to Civil Hospital, Hyderabad, in rickshaw, where the Doctor confirmed his death. The police came on the scene, thereafter the complainant reached at the Police Station to lodge the FIR and further stated that he is sure that silver colour corolla car chased them from the Judicial Complex, Hyderabad, and the accused persons with common intention to kill his cousin Aaqib Hussain fired bullet shots upon him and killed him.” The FIR was duly got registered by ASI, P.S. GOR, Hyderabad, whereas, the police carried out necessary legal formalities. During investigation, the police arrested the present applicant/accused Sikandar Ali Lashari on 05.03.2014, in the aforesaid crime as a prime suspect, who according to prosecution, was the mastermind of the whole incident and got the deceased Aaqib Hussain killed through accused persons, whose names have been given in the interim challan furnished by the prosecution before the ATC Court and since then the applicant is behind the bar.
3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the instant crime by the police, whereas, according to learned counsel, neither he has been nominated in the FIR nor any overt role has been assigned to the present applicant in the challan in commission of the alleged offence. Per learned counsel, the alleged incident is of 19.02.2014 at about 10:25 p.m., whereas, the FIR has been registered on 20.02.2014 at about 0030 hours, whereas, the delay in lodging the FIR has not been explained. Learned counsel for the applicant has referred the entry Nos.34, 38, 39 and 40 of Police Roznamcha and also to the postmortem report of the deceased Aaqib Hussain and submits that there are discrepancies in the aforesaid entries and the time of postmortem. He has also referred to the time mentioned in the musheernama of recovery and submits that the time mentioned in the aforesaid entries, postmortem report and the musheernama do not co relate which suggests that FIR has been registered after due deliberation and consultation. It has been contended by the learned counsel that the interim challan in the instant crime was submitted on 08.05.2014, whereas, the applicant Sikandar Ali Lashari was on duty on 03.03.2014 as District & Sessions Judge, Matiari and was arrested on 05.03.2014 on the charges under Sections 302/109/114/34PPC read with Sections 6/7 of ATA 1997. Per learned counsel, the cook of the applicant/accused namely Malook was taken into custody by the police w.e.f. 25.02.2014 upto 06.05.2014, when his statement was recorded under Section 161, whereafter, he was released under Section 169 Cr.P.C., Muhammad Irfan was arrested on 23.04.2014. It has been contended by the learned counsel for applicant that there is no incriminating material available with the prosecution against the present applicant, whereas, some purported confessional statement of the applicant has been recorded on 21.03.2014 i.e. 17 days after his arrest when he was in police custody. Per learned counsel, even such purported confessional statement was before DSP, whereas, in terms of Section 21-H of ATA 1997, such confessional statement could have been recorded before the officer not below the rank of S.P. Per learned counsel, the statement before the police is regarded as exculpatory statement, which is not admissible under the Qanoon-e-Shahadat Order, 1984. It is further contended by the learned counsel that the said statement which otherwise reportedly based on some video recording is not an admissible piece of evidence, therefore, cannot be taken into consideration at the time of deciding the instant bail application as a tentative assessment of the material is to be made and if there is some doubt in the prosecution story, the benefit is to be extended to the applicant/accused. Learned counsel further submits that another purported material available with the prosecution in the shape of CDR of the applicant’s mobile and the mobile of Barkat Lashari and Abbas Siyal, the co-accused persons nominated in the instant crime, has no evidential value, whereas, it does not contain any exact spoken words, which would suggest that the present applicant has directed the co-accused persons for the murder of the Aaqib Hussain deceased. It is further contended by the learned counsel that the alleged recovery of 9 MM pistol and other ammunition at the pointation of present applicant from the house of Abbas Siyal and Iqbal Punjabi has been foisted upon applicant, whereas, no independent witnesses of the area were associated as musheers, whereas, such recovery has been foisted by the police to connect the present applicant with the alleged offence. Per learned counsel, there is no material available with the prosecution, which may directly connect the present applicant with the alleged offence nor any of the prosecution witness suggest that such offence could be attributed to the present applicant. It has been further contended that in order to establish direct link or nexus of the abettor in the alleged crime, and determination of the common intention to commit such offence is to be established by the prosecution, whereas, CDR data of Mobiles can at best be regarded as merely a corroborated evidence and in the absence of actual conversation and the spoken word the allegation of abetment fades out. It has been further contended by the learned counsel for the applicant that even the statement recorded under Section 161 Cr.P.C. of Mst. Shamsunnisa, the mother of the deceased, who is allegedly the eye witness of the incident, has been recorded after considerable delay, which is not explained, which is based on due consultation and deliberation with an intention to falsely implicate the present applicant in the alleged crime, whereas, before such statement, the applicant was not shown to have been involved in the alleged crime. Per learned counsel, the statement of Malook, the cook of the applicant/accused, was also recorded under police custody, who was subsequently released under Section 169 Cr.P.C. by the police. Per learned counsel, none of the co-accused persons, who have allegedly committed the murder of deceased namely Aaqib Hussain on the directions of applicant has been arrested so far, whereas, there is no incriminating material available with the prosecution against the present applicant, which may directly or indirectly connect him with the alleged crime and the entire prosecution story is concocted. Per learned counsel, the applicant, who is highly respectable person having a long judicial career and was performing his duty as District and Sessions Judge, Matiari, has been dragged in the instant case with ulterior motive at the instance of police, as according to learned counsel, the S.S.P. Fareed Jan Sirhandi, in whose supervision, the matter has been investigated, there is previous enmity with the applicant, as the S.P. was tried in a criminal case before the applicant’s Court at Kotri. Learned counsel further submits that the allegation of abetment and common intention to commit the alleged crime are not duly supported by any material or evidence available with the prosecution, whereas, the provision of Section 6/7 of ATA 1997 are not attracted as the same have been added in the FIR on the directions of the Judicial Magistrate, who did not have an authority to issue such direction. Per learned counsel, the provision of Section 21-D inserted by Ordinance No.XXXIX of 2001 dated 15.08.2001 in ATA, 1997 do not curtain the jurisdiction of this Court to grant bail to an accused person by invoking the provision of Section 497(2) Cr.P.C, whereas, if there are no reasonable grounds for believing that the accused has committed a non-bailable offence and the matter requires further inquiry into his guilt, the accused may be released on bail during pendency of the trial Court. It is further contended by the learned counsel that since the investigation against the applicant has been completed, challan has been furnished and the present applicant is no more required for further investigation, whereas, keeping in view the status of the present applicant, who is judicial officer of the rank of District and Sessions Judge, there is no likelihood that he may abscond or tamper with the evidence or may possibly repeat such offence while on bail, therefore, the present applicant may be enlarged on bail subject to furnishing surety. In support of his contention, learned counsel for the applicant has placed reliance in the following cases:-
1. Khalid Saigol v. The State PLD 1962 SC 495
2. Muhammad Shafiq v. Muhammad Hanif and another 1970 SCMR 143
3. Manzoor and 4 others v. The State PLD 1972 SC 81
4. Khalid Javed Gillan v. The State PLD 1978 SC 256
5. Wali Muhammad v. The State 1982 P. Cr. L.J 798
6. Muhammad Afzal v. The State 1983 SCMR 1
7. The State v. Syed Qaim Ali Shah 1992 SCMR 2192
8. Government of Sindh and 4 others v. Raeesa Farooq and 5 others
1994 SCMR 1283
9. Tariq Bashir and 5 others v. The State PLD 1995 SC 34
10. Chaudhry Shujat Hussain v. The State 1995 SCMR 1249
11. Ata Muhammad and another v. The State 1995 SCMR 599
12. Gul Zaman v. The State 1999 SCMR 1271
13. Abdullah Shah alias Babar Ali and others v. The State NLR 1999 Criminal 217
14. Abdul Aziz Khan Niazi v. The State through Chairman, NAB PLD 2003 SC 668
15. Maulana Abdul Aziz v. The State 2009 SCMR 1210
16. Mir Sanad Khan and 6 others v. The State PLD 2014 Balochistan 113
18. Rai Hari Prasad v. Emperor AIR 1936 Pat. 608
19. Shri Ram v. The State of U.P.AIR 1975 SC 175
20. Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200
4. Conversely, Mr. Anwar Mansoor Khan, learned counsel for the complainant has vehemently opposed the grant of bail to the present applicant and submits that the present applicant has been charged with commission of heinous offence by getting the deceased Aaqib Hussain, a young boy of 18 years of age, brutally murdered by hiring the professional killers with a motive to take revenge of the insult and dishonour felt by the applicant/accused at the hands of deceased Aaqib Hussain by keeping relations with his daughter Keenjhar. It is contended by the learned counsel for the complainant that the deceased Aaqib Hussain was a promising young boy of tender age, who was studying in Hamdard University and belonged to a respectable family, did not have any enmity with anyone, who has been brutally get murdered in cold blood on the directions of applicant/accused through accused persons in front of his mother, brothers, sister and the cousin (complainant), who are the eye witness of the whole incident, which was promptly reported to the police. Per learned counsel, the name of the present applicant was not mentioned in the FIR for the reason that complainant party did not have any enmity with the applicant/accused rather, had good family terms. Per learned counsel, the alleged delay or the allegation of due deliberation while recording statement under Section 161 Cr.P.C. of Mrs.Shamsunnisa, the mother of the deceased and other eye witnesses has no adverse implication on the prosecution case as the accused has not been nominated in the FIR, whereas, after thorough investigation of matter by the responsible superior officer of the police and by taking permission from the Hon’ble Chief Justice of the High Court of Sindh to interrogate and thereafter to arrest the present applicant/accused, the present applicant has been shown as the principal accused in the instant crime, hence, there is no possibility of false implication of the present applicant either by the police or by the complainant party. It is contended by the learned counsel for complainant that prosecution has gathered sufficient material and evidence against the present applicant/accused including the statement of prosecution witnesses under Section 161 Cr.P.C, CDR record of the Mobile phones of the applicant/accused as well as the CDR of the co-accused persons during the relevant period of time when offence was committed, the confessional statement of the applicant/accused before the S.P. in the form of Video recording. Per learned counsel, the prosecution is also in possession of audio record of Mst. Shamunnisa, the mother of the deceased and Mst. Keenjhar, the daughter of present applicant/accused soon after the incident, which clearly suggests that the present applicant/accused is the mastermind of the alleged incident, who has got the deceased Aaqib Hussain, killed in a brutal manner through the professional killers, the co-accused in the instant case. It has been further contended by the learned counsel for complainant that a detailed CDR record of the mobile sims, which were in the use of the present applicant/accused directly connect him with the alleged incident as he has throughout remained in contacts with the co-accused Barkat Lashari, who was in continuous contact with Abbas Siyal, who has actually killed the deceased by firing 15-20 shots from 9 MM pistol, at the relevant period of time of the alleged incident. Learned counsel further submits that the applicant has already accepted his guilt and has got recorded his confessional statement before the S.P. Hyderabad, Fareed Jan Sarhandi, which has duly been video recorded, whereas, its written transcript is also available with the prosecution, which has been duly signed/authenticated by the PDSP, hence, the contention of the learned counsel for applicant to the effect that the confessional statement was recorded by the officer below the rank of S.P. is also incorrect. Learned counsel for the complainant has also readout the statement of Mst. Shamsunnisa and other prosecution witnesses and submits that the alleged incident had not been denied and there is no discrepancy whatsoever with regard to actual happening of the incident, whereby, a young boy, who was the student of 1st year in Hamdard University, has been brutally murdered in front of his family members. Per learned counsel, by looking at the mode and manner in which the deceased has been brutally murdered, whereas, 15-20 bullets have been fired at the lower portion of the deceased clearly reflects the motive, which has been directly attributed to the present applicant/accused, whereas, the incident has terrorized the society and the public of the area at large.. Learned counsel for the complainant has readout the statement of the accused and also compared the same from the video recording, which was displayed in the chamber with permission of the Court, to show that the same was a voluntary confessional statement of the applicant/accused and was recorded before the S.P. Hyderabad i.e. Fareed Jan Sirhindi, without any pressure or coercion whatsoever. Learned counsel further submits that the applicant/accused has already admitted his guilt and has stated that out of vengeance he has got the deceased Aaqib Hussain murdered through co-accused persons. Learned counsel for the complainant has also referred to the Musheernama of recovery and FSL record of the weapon, which was used in the crime and caused death of the deceased Aaqib Hussain, and submits that there is more than sufficient material and evidence, which directly connects the present applicant/accused with the crime, who is not entitled to be released on bail. It is further contended by the learned counsel for complainant that the parameter for the grant of bail in the case of ATA 1997 in terms of Section 21-D are more stringent as compared to the parameter, which may be taken into consideration while deciding the bail application under Section 497(2) Cr.P.C. Learned counsel for the complainant has referred to provision of Section 21-H of ATA 1997 read with Article 42 of Qanoon-e-Shahadat Order, 1984, and contended that all the necessary ingredient of a confessional statement of the accused, who has consciously made the confession of his guilt voluntarily before the S.P. Hyderabad, whereas, some procedural lacuna as alleged by the learned counsel for applicant would not make such statement inadmissible in evidence. Learned counsel for the applicant has also referred to the provisions of Section 164 of the Qanoon-e-Shahadat Order, 1984 and provision of Section 27-B of ATA, 1997 and submits that trial Court has the authority to allow to be produced any evidence that may have become available because of modern devices or techniques referred to Article 164 of Qanoon-e-Shahadat Order, 1984, including audio/video recording, mobile data, CDR, which in the instant case is duly supported by corroborating evidence and directly implicates the present applicant/accused with the commission of offence, as mentioned in the FIR and challan. Per learned counsel, the applicant/accused has been charged with offences punishable to death and fall within the prohibitory clause, whereas, no malafide can be alleged on the part of prosecution or on the complainant side, hence the applicant is not entitled to be released on bail, whereas, if the applicant may be released on bail, there is every likelihood that he will tamper with the evidence and influence the witnesses and the police by exercising his authority and position as the District and Sessions Judge, and consequently the prosecution case will be destroyed and the co-accused persons, who are absconders will never be arrested. In support of his contention, learned counsel for the complainant has relied on the following judgment:-
1. Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs v. Abdul Wali Khan PLD 1976 SC 57.
2. Haji Gul Rehman v. Imran-ud-Din 2009 SCMR 1179
3. Muhammad Aslam and another v. The State 2004 P.Crl. L.J 1438
4. Sikandar v. The State PLD 2004 Karachi 644
5. Dhula v. The State AIR 1957 Rajistan 145
6. State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1579
5. Learned APG has also opposed the grant of bail to the present applicant/accused by adopting the arguments of the learned counsel for the complainant and has submitted that the present applicant/accused is directly connected with the crime, who is in fact the mastermind of the incident and has got the deceased Aaqib Hussain brutally murdered by hiring professional killers with an established motive. It is further contended by the learned APG that there is sufficient material and evidence available with the prosecution, including voluntary confessional statement of the applicant/accused before the S.P. Hyderabad, video recording of such confessional statement and its written transcript, detailed CDR record of the Mobile phones/sims of the present applicant and the co-accused persons, SMS data, which is also available in the written form, showing continuous contact of the present applicant with the co-accused persons, who have actually killed the deceased Aaqib Hussain, by firing 15-20 shots from pistol, which has been recovered at the pointation of the present applicant/accused. It is further contended that the postmortem report and FSL report also corroborate with the FIR, challan and statements under Section 161 Cr.P.C. recorded by prosecution in the instant matter, as well as the confessional statement of the applicant/accused. It is further contended by the learned APG that ATA, 1997, is s special law, which has its own purpose, whereas, its provisions, including the provision for grant of bail (Section 21-D) are to be taken into consideration, given effect and preference over the provisions of any other law, including provision of Section 497 Cr.P.C. Learned APG further submits that the case law relied upon by the learned counsel for the applicant is not relevant and applicable to the facts of the instant case as the same pertains and relate to provision of Section 497(2) Cr.P.C. and not to the provisions of ATA 1997, which is a special law. It is contended that no malafide can be attributed to the prosecution in the instant case as the prosecution has taken all due care and followed the legal procedure during investigation, whereas, no maltreatment has been alleged by the applicant/accused against the prosecution or the I.O. of the case. It has been prayed that since, the learned ATC Court, while refusing the bail of the present applicant/accused has taken into consideration all the relevant material and examined the relevant provisions of law, therefore, the bail application of the present applicant has been rightly dismissed, whereas, learned counsel for the applicant has not been able to make out a case for grant of bail to the applicant/accused, which may be dismissed. In support of his contention, learned APG has relied upon the following case law:-
1. Shaikh Aijazur Rehman v. The State (NAB) PLD 2006 Karachi 629
2. Zakir Khan and another v. The State 1995 SCMR 1793
3. Niaz-ud-Din v. The State and another 2011 SCMR 725
6. We have heard the learned counsel for the applicant, complainant as well as learned APG, examined the record and material with their assistance and have also perused the case law as relied upon by the learned counsel for the parties in support of their contentions. From perusal of the record and tentative assessment of the material produced, it has been noted that the occurrence of the incident on the fateful date and time as mentioned in the FIR, when deceased Aaqib Hussain, who was brutally murdered and succumbed to death on receiving about 15-20 bullets fired from a 9MM pistol, mostly on the lower body parts of the deceased, in front of his mother, sisters, brother and cousin (complainant), is not disputed, whereas, the postmortem report and FSL report also support the prosecution case in this regard. The recovery of the weapon at the pointation of the applicant/accused from the house of co-accused persons Abbas Siyal and Iqbal Punjabi, who are absconders, in the presence of Musheers, though disputed by the counsel for the applicant/accused, however, prima-facie create a link of the applicant with the co-accused persons and may connect him with the alleged crime and the offence of abetment by instigating and conspiring with the co-accused for commission of the murder of the deceased. The CDR data of the Mobile/sims of the applicant/accused and the co-accused persons also reflects the continuous contact of the present applicant with co-accused Barkat Lashari and Abbas Siyal (the killer) during the period of time when incident occured. Audio record of conversation of Mst.Shamsunnisa, mother of the deceased with Mst. Keenjhar daughter of the present applicant/accused, immediately after the incident also refers to the relationship of the deceased Aaqib Hussain with the daughter of the applicant Mst. Keenjhar. The video recording of the statement of the applicant/accused before the S.P. Hyderabad Fareed Jan Sirhindi, prima-facie supports the prosecution case to the extent that such statement was not obtained under coercion or by using force, and appears to have been voluntarily made by the applicant/accused, whereby, applicant/accused has admitted his involvement in the alleged crime. The statement under Section 161 Cr. P.C. of the cook of the applicant/accused, namely, Malook prima-facie supports the case of the prosecution regarding relations and the meeting of the deceased Aaqib Hussain with the daughter of the applicant/accused namely Mst. Keenjhar, whereas, statement of Muhammad Saleem, the clerk of the applicant/accused prima-facie supports the case of the prosecution to the extent of use of Mobile sims by the applicant/accused through which he remained in contact with the co-accused persons as per CDR record, at the time of incident. There is no allegation of maltreatment or previous enmity of the applicant with the complainant party or the police nor anything has been shown by the learned counsel for the applicant which may suggest that either the I.O. of the case or the S.P. before whom the applicant/accused has recorded his statement, has any previous enmity with the applicant/accused. As regards the contention of the learned counsel for the applicant, regarding inadmissibility of the audio/video recording, we may observe that such objection can be raised before the learned trial Court when such evidence may be produced by the prosecution, and the learned trial Court shall be competent to decide such objection in accordance with law, whereas, we would not record our finding on such objection at this stage while deciding the instant bail application as it may prejudice the case of either party and would effect the disposal of the trial by the learned trial Court on merits. However, keeping in view the provision of Section 21-H and 27-B of ATA 1997 read with Article 164 of the Qanoon Shahadat Order, 1984, we are of the tentative view that such material may constitute sufficient corroborating evidence, which may connect the present applicant/accused with the alleged crime. It will not be out of place to observe that in view of provision of Section 21-D of ATA, 1997, which is a special law, whereby, a detailed mechanism for grant of bail to an accused charged of offences falling under the ATA, 1997, has been provided are to be kept in mind while considering the bail application of an accused person, irrespective of the fact that the broad principle for grant of bail under Section 497 (2) Cr.P.C. would also apply in appropriate cases, provided the same are not inconsistent with the provisions of Section 21-D of ATA, 1997 itself. We cannot resist while observing that grounds for grant of bail under the ATA, 1997, in terms of Section 21-D are more stringent and require due care and caution while granting bail to an accused person who is charged with offences under Anti-Terrorism Act punishable with death or imprisonment for life or exceeding ten years. If there appear reasonable grounds for believing that the accused person has been guilty of an offence punishable with death or imprisonment for life or imprisonment for not less than 10 years, such person shall not be released on bail. We are of the tentative view that there is sufficient material available with the prosecution, which may connect the applicant/accused with the alleged crime, whereas, the ingredients, which are required to establish the connivance, abetment, motive and common intention to commit the offence, may be established during the trial of the case and cannot be looked into or pre-empted at this stage while deciding the bail application.
7. Accordingly, by taking the brief stock of the material available with the prosecution in the shape of video recording of the statement of the applicant/accused before the Superintendent of Police, Hyderabad and its written transcript, Audio recording of conversation of Mrs. Shamsunnisa with the daughter of applicant/accused, namely, Mst. Kenjher, CDR record of the applicant’s Mobile/SIMs and of the co-accused, namely, Barkat Lashari and Abbas Siyal, statement of prosecution witness under Section 161 including eye witnesses of the incident, post-mortem report, FSC report, Musheernama of recovery of weapon etc., we are of the view that the present applicant/accused has been guilty of an offence, which may be punishable with death or imprisonment for life or imprisonment for not less than ten years, therefore, the applicant has not been able to make out a case for grant of bail at this stage. We may observe that the case laws relied upon by the learned counsel for the applicant are of no assistance to the applicant as the same are not relevant for the reason that the facts of this case are distinguishable from the facts of the cited cases.
In view of hereinabove, we are of the opinion that the applicant has not made out a case for grant of bail, which is hereby dismissed.
8. Needless to observe that the observations as made hereinabove are tentative in nature and the learned trial Court shall not be influenced by any such observations and shall decide the matter strictly in accordance with law and on the basis of evidence available on record.
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