ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.Bail.Appl.No.S- 1228 of 2014

Cr.Bail.Appl.No.S- 1257 of 2014

Cr.Bail.Appl.No.S- 1258 of 2014

DATE ORDER WITH SIGNATURE OF JUDGE

02.01.2015.

M/s Zaheeruddin S. Leghari, Ghulam Asghar Mirbahar and Indeer Jeet Lohano, Advocates for applicants.

Mr. Shahid Shaikh, A.P.G. for the State.

SALAHUDDIN PANHWAR, J: Through above respective and separate bail applications the applicants are seeking post arrest bail in Crime No.152/2014 u/s 302, 377, 34 PPC registered at Police Station Naseem Nagar, Hyderabad.

2. Precisely, relevant facts are that on 18.07.2014 at 2300 hours complainant Mushtaque s/o Ghulam Hyder Abbasi lodged FIR at Police Station Nasim Nagar, Qasiamabad, Hyderabad, alleging therein that he has five sons and three daughters. Ahsan Ali is eldest son whose age is 13 years. On 09.07.2014 he alongwith his inmates was available in the house when Sajjad son of Mazhar Ali Abro, aged about 14/15 years, came at the outer door to take his son Ahsan Ali for playing game and thus said Ahsan Ali joined them. Thereafter, his brother-in-law Nisar Ali Abbasi, broher-in-law(Sandho) Sadaruddin Abbasi came in the house; complainant disclosed them that at about 1230 hours Sajjad, Faraz, Kamran @ Babloo and Naveed came there and Ahsan Ali proceeded with them which he thought to be for playing game; when at late hours, Ahsan Ali did not return then they all jointly started search of Ahsan Ali so also enquired from Sajjad Ali Abro, who told that Ahsan Ali had returned at same time so they have no knowledge about him. Later, while searching they reached towards an under construction building of Rasheed Khaskheli where found that the dead body of Ahsan Ali was lying tied with the rope on the linter of door, whose feet were also tied with wires. They brought down the dead body and for the satisfaction they took Ahsan Ali to Taluka Hospital Qasimabad where the doctor confirmed his death. Due to shock of his son, complainant became unconscious, took the dead body at house where considering to be the wish of Almighty Allah they remained silent. Thereafter, come to know that Sajjad Ali Abro, Faraz Abro, Kamran @ Babloo Mallah and Naveed Mallah on the pretext of playing game took away his son Ahsan Ali from the house deceitfully, they were also seen by his brother-in-law Nisar Ali and Sandho Sadaruddin Abbasi; they committed Zina and then by pressing his neck hanged the dead body with rope on the door of the linter. Thereafter, complainant lodged such FIR.

3. Learned counsel for applicants contended that applicants are innocents and have been falsely implicated in the present; there is no direct or indirect evidence against them; there is delay of 09 days in lodging FIR without any plausible explanation; there is no ocular evidence nor the incident is claimed to have been seen by any eye witnesses and even the complainant is also not an eye witness; applicants / accused are minors and juvenile offenders; no specific role is assigned to any of the applicants; there are general allegations against all the applicants; challan in the case has been submitted; the applicants are no more required for further investigation; on the day of incident grandfather of deceased lodged entry at PS, stating therein that deceased was playing with other kids, and due that game rope was tightened in the neck and he died, therefore this is a fit case of further inquiry . In support of their contentions, learned counsel have placed reliance on the cases reported as Sultan Ahmed v. Additional Sessions Judge, Mianwali and 2 others (PLD 2004 Supreme Court 758), Muhammad Anwar v. The State (1983 SCMR 1001), Qamar Abbas Shah v. The State (2012 YLR 2663), Muhammad Ilyas v. The State (2009 YLR 2311), Abdul Saleem v. The State (1998 SCMR 1578), Nazir Gul and another v. Zar Gul and another (2004 MLD 335) and Muhammad Ahmed Javed v. The State and others (2014 P.Cr.L.J 352).

4. On the other hand, learned A.P.G. appearing for the State opposed the bail on the ground that applicants are nominated in FIR with specific role of murder of deceased Ahsan Ali after committing Sodomy with him, therefore, they are not entitled for concession of bail.

5. I have heard learned counsel for respective parties and perused the record minutely. Before discussing the merits and demerits of the case, it would be much relevant to mention that it is never the requirement of law to keep one behind the bar if his name has appeared in the F.I.R but the law only restricts the release of one who, per available record, prima facie appears to be linked with commission of an offence falling within prohibitory clause else the law believes in liberty till one is found guilty. One more thing is also required to be clear that in Criminal Administration of Justice conscious knowledge and notice of the criminal act and its consequences are of much importance and are known as ‘mensrea. Since a ‘juvenile’ is believed to be not having that much sense of consequence of his acts therefore, law provides leniency in all fields of a ‘criminal trial’ which includes ‘arrest of a juvenile, place of detention, release of a juvenile during trial, manner of his trial and even in quantum of sentence.

6. Now, reverting to the merits of the case what I found from perusal of the record that there is no direct evidence against the applicants. Prosecution does not claim any eye-witness of the incident but the prosecution case, at the most, is based on last seen evidence, since there is no other material to connect the allegation of murder and Zina hence last seen evidence, alone, is not sufficient to be considered as prima facie linking the applicants / accused with commission of the offence. The perusal of the available material rather shows that FIR is delayed and even the grand father of the victim (deceased child) lodged a report / entry on the very day of incident which is entire contradictory to the instant delayed lodged FIR. Even per medical evidence the body was exhumed and it was observed that cause of death was not determinable. Even otherwise, the applicants / accused are juvenile hence it would not be legally justified to keep them behind the bars for an indefinite when there appears no grounds to believe that applicants / accused are, prima facie, connected with the offence, who, otherwise, are also entitled to be released on bail per their being ‘juvenile’..

7. Keeping in view given circumstances, I am of the clear view that applicants have succeeded to make out their case within purview of sub-section 2 of Section 497 Cr.P.C hence they are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.100,000/- (One lac) each and P.R. Bonds in the like amount to the satisfaction of trial Court.

JUDGE

Tufail