HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.1622 of 2014
Criminal Bail Application No.1864 of 2014
Present:
Naimatullah Phulpoto, J.
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Date of hearing : 10.08.2015
Date of announcement : 19.08.2015
Appellants : Sabir Hussain son of Illahi Bux through Mr. Muhammad Arshad Mughal, advocate (in Cr. B.A. No.1622/2014)
Abid Hussain son Ellahi Bux through Moulvi Iqbal Haider, advocate (in Cr. B.A. No.1864/2014)
Respondent : The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh
Complainant : Sajib son of Abid through Khawaja Muhammad Azeem, advocate
O R D E R
NAIMATULLAH PHULPOTO, J.--- By this single order I intend to dispose of bail before arrest application moved on behalf of applicant/accused Sabir Hussain and bail after arrest application filed by applicant/accused Abid Hussain in Crime No.179/2014, registered at P.S. Shahrah-e-Noor Jahan, Karachi Central under sections 302, 109, 34 PPC.
2. Brief facts of the prosecution case as disclosed in the F.I.R. are that complainant Sajid is the son of accused Abid. He has stated that he works at garments factory and he has four sisters and brothers and he is elder one. It is alleged in the F.I.R. that applicant/accused Abid used to maltreat his wife. On 08.06.2014 at 0900 hours, accused Sabir, uncle of the complainant, came in the house of the complainant and talked to the father of the complainant. Thereafter, he asked accused Abid to finish/eliminate his wife at night time. Complainant has further stated that he could not sleep whole night because of fear and tension and at dawn time his mother (deceased) went to sleep on a sofa set and complainant went in his room to sleep. At 06:30 a.m. complainant heard cries of his mother and saw flames of fire over the clothes of her body. At that time accused Abid was standing at the door of the room. Complainant extinguished the fire. Accused Abid succeeded in running away from the house. Complainant along with his maternal uncle Shahnawaz took the injured mother to Burns Centre, Civil Hospital, Karachi where she succumbed to her injuries. Complainant stated that his father Abid set his mother on fire on the instigation of co-accused Sabir. F.I.R. was recorded on 10.06.2014 at 1645 hours under sections 301, 109, 34 PPC.
3. During investigation, 161 Cr.PC statements of PWs were recorded. Empty acid bottle was recovered from place of incident. IO collected death certificate from Burns Centre, Civil Hospital, Karachi. On the conclusion of the investigation, IO submitted challan against accused Abid. The name of accused Sabir was placed in Column No.2 of the final report. Concerned Civil Judge/Judicial Magistrate did not agree with the report of IO and joined Sabir as accused in this case.
4. Bail before arrest application was moved on behalf of applicant/accused Sabir Hussain before the learned V Additional Sessions Judge Karachi Central, the same was rejected vide order dated 19.07.2014. Accused Abid applied for bail after arrest before the learned V Additional Sessions Judge Karachi Central, the same was rejected vide orders dated 27.09.2014. Thereafter, both the applicant/accused have approached this Court for bail.
5. Mr. Moulvi Iqbal Haider, learned advocate for applicant/accused Abid Hussain mainly contended that there is delay in lodging of F.I.R., no plausible explanation has been furnished. He has contended that PW Saadullah in his 161 Cr.PC statement has given different version from the complainant and other witnesses. It is also argued that incident was unwitenssed. Learned counsel for the applicant/accused lastly contended that deceased died in kitchen due to gas pipe leakage and case of applicant/accused requires further inquiry.
6. Mr. Muhammad Arshad, advocate of applicant/accused Sabir Hussain contended that role of instigation has been assigned to applicant/accused Sabir Hussain and his name was placed in column No.2 of the challan by the IO. He argued that there was delay in lodging of F.I.R. without explanation. Lastly he has argued that complainant has improved his case, in his further statement as such case requires further enquiry.
7. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, assisted learned advocate for complainant, opposed the bail application and argued that specific role has been assigned to accused Abid by the complainant, who is his son. He has argued that co-accused Sabir instigated co-accused Abid and provided him bottle of acid as stated by PW Muhammad Siraj in his 161 Cr.PC statement. Lastly, he has argued that no mala fide on the part of the complainant/police has been brought on the record. Learned counsel for the complainant argued that wife of accused Sabir filed an application before learned Sessions Judge, ex-officio justice of peace for seeking directions for registration of F.I.R. against complainant for the mala fide reasons, such application was dismissed and the order of learned Sessions Judge has been maintained by this Court.
8. I have carefully heard the learned counsel for the parties and perused the relevant record.
9. In this case complainant is the real son of accused Abid and nephew of co-accused Sabir. Complainant has categorically stated that on the night of incident accused Sabir asked accused Abid to kill the deceased on account of matrimonial dispute. Complainant in his F.I.R. stated that his mother was set on fire by his father/accused Abid at dawn time and he saw his father/accused Abid at the door of room and he extinguished the flames of the fire and accused Abid succeeded in running away. PW Mst. Shahnaz, daughter of accused Abid has also implicated the appellants in the commission of offence. PW Siraj in his 161 Cr.PC statement has stated that accused Sabir gave something like bottle to accused Abid. IO collected from place wardat a plastic bottle of acid. Medical officer in his report has clearly mentioned that 77% body of deceased was burnt and cause of death was cardio pulmonary arrest. Motive is also against accused Abid. Apparently sufficient material has been collected against accused Abid during investigation. As regards to the case of accused Sabir is concerned, opinion of the IO regarding placing the name of accused Sabir in Column No.2 cannot be accepted to exonerate the accused from the commission of offence. Opinion of the IO is not binding upon the Court. Reliance is placed upon the case of Qudrat Bibi versus Muhammad Iqbal reported in 2003 SCMR 68. Applicant/accused Sabir is also not entitled for grant pre-arrest bail as he has failed to establish that he has been involved in the case for ulterior motives. In the case of Rana Muhammad Arshad versus Muhammad Rafiq (PLD 2009 SC 427) principles for grant of concession of pre-arrest bail have been summarized as under:-
(a) grant of bail before arrest is an
extraordinary relief to be granted only in extraordinary situations to protect
innocent persons against victimization through abuse of law for ulterior
motives;
(b) pre-arrest bail is not to be used as a substitute
or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted
unless the person seeking it satisfies the conditions specified through
subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he
establishes the existence of reasonable grounds leading to a belief that he was
not guilty of the offence alleged against him and that there were, in fact,
sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto,
he must also show that his arrest was being sought for ulterior motive,
particularly on the part of the police; to cause irreparable humiliation to him
and to disagree and dishonour him;
(e) such a petitioner should further
establish that he had not done or suffered any act which would disentitle him
to a discretionary relief in equity e.g. he had no past criminal record or that
he had not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a
justifiable cause, a person desiring his admission to bail before arrest, must,
in the first instance approach the Court of first instant i.e. the Court of
Session, before petitioning the High Court for the purpose.
10. As regards to contention of learned advocate for applicants/accused that deceased died due to leakage of gas pipe in kitchen, such plea raised by accused requires deeper appreciation of evidence, which is exclusive function of trial Court. Delay in lodging F.I.R. in the circumstances of case, would not be sufficient ground for bail. Prima facie, there are reasonable grounds to believe that both the applicants/accused have committed the alleged offence, which is punishable with death or imprisonment for life. Consequently the bail application moved on behalf of accused Abid is without merit and the same is dismissed. Bail application moved on behalf of applicant/accused Sabir also merits no consideration, the same is also dismissed. Interim pre-arrest bail already granted to applicant/accused Sabir is hereby recalled. However, trial Court is directed to decide the case within a period of 04 months under intimation to this Court.
11. Needless to mention here that observations made herein above are tentative in nature, the trial shall not be influenced by such observations while deciding the case on merits.
J U D G E
Gulsher/PA