2012 PLP 1412 (YLR)

MUHAMMAD TASNIM, J.

Applicant Sabir Baig son of Saleem Baig is arrested in Crime No.278 of 2010 at Police Station Surjani Town dated 3-5-2010 registered under sections 302/201/34, P.P.C. Applicant in the first place applied for bail before IV-Additional Sessions Judge, Karachi-West, in Sessions Case No.488 of 2010. His bail application was dismissed per order dated 7-10-2010. Subsequently it appears from the perusal of record that bail application was repeated by the present applicant before the same Court in the same sessions case but such application was also dismissed per order dated 15-6-2011. Feeling aggrieved against the aforesaid orders present bail application has been filed.

2. Facts as set out in the F.I.R. are that complainant's husband was having studio where her husband used to make dramas and picturized them. It is alleged that applicant Sabir Baig was also working with him. It is alleged in the F.I.R. that on 11-4-2010 husband of the complainant came to the house for a short while and returned back to studio, after two or three days when complainant visited at 4-00 p.m. her husband and Sabir Baig were exchanging hot words on payment of amount, she returned back to her house and after she had no contact with her husband she asked Sabir Baig about her husband but he did not reply. Accordingly, present F.I.R. was lodged.

3. Learned counsel for the applicant in support of the bail application has submitted that as per F.I.R. alleged incident took place on an unknown date and time. He submits that from the reading of F.I.R. it can be gathered that the wife of deceased lastly visited the studio on 11-4-2010 and after expiry of three days husband of the complainant was missing. He says that it can be said that offence took place on 14-4-2010 but present F.I.R. was lodged on 3-5-2010 at 0315 hours. Learned counsel says that delay of about nineteen days have not been explained by the prosecution. He says that incident is unseen, there is no recovery whatsoever from the present applicant and medical report discloses the cause of death of deceased due to head injury by some hard and blunt substance. He says that applicant has been wrongly implicated in the case and that there is no material available with the prosecution which connects the present applicant with the commission of offence. In support of his contentions learned counsel for the applicant has relied upon the case of NAZIR AHMAD V. THE STATE (2009 PCr.LJ 700).

4. On the other hand, learned A.P.-G. has vehemently opposed the grant of bail and has submitted that delay in lodging of F.I.R. has been explained in the F.I.R. He further says that dead-body of the deceased, CNIC of the deceased and iron rod were recovered on the pointation of present applicant. He says that applicant is connected with the commission of offence and he may not be enlarged on bail.

5. I have heard the learned counsel for the parties and have gone through the record.

6. From the perusal of record it is manifestly clear that occurrence took place on an unknown date and time and it was an unseen incident. As per learned counsel for the applicant that the applicant was arrested on 3-5-2010 but no recovery has been effected from the applicant. He further submitted that the recovered articles have been foisted upon the present applicant. Learned counsel submitted that no private witness has been associated at the time of recovery but both the mashirs are police officials. It is also an admitted position, that F.I.R. has been lodged after a delay of nineteen days and during this period the complainant might have deliberated and discussed the matter with family members and thereafter present F.I.R. was lodged. Delay in lodging F.I.R. creates doubt.

7. It is settled legal position that at the bail stage deeper appreciation of the record cannot be gone into but only a tentative assessment is to be made just to find out as to whether the present applicant is prima facie connected with the commission of offence or not. Applying the above test to the present case it will be noticed that no direct evidence against the present applicant is available with the prosecution. The judgment cited by the learned counsel for the applicant in the case of NAZIR AHMAD V. THE STATE (2009 PCr.LJ 700) is in somewhat similar circumstances. The learned Judge of Lahore High Court has dealt with the issue in the following words:-- "5 ..The petitioner is no doubt nominated in the F.I.R., but I am afraid this Court has to see as to whether offences under which the petitioner is liable to be tried are attracted in this case or not. There is no eye-witness account of the occurrence. Even otherwise, it is practically not possible that murder of the complainant's husband was committed in the house and none of the family members would know that murder has been committed as no hue and cry was ever made by the deceased. This aspect of the case speaks volumes of the false implication of the petitioner as he has already been declared innocent in police investigation and no recovery of any crime weapon has been effected from him as well."

8. The case cited by learned counsel for the applicant is fully applicable to the case in hand. Since there is delay in lodging of F.I.R. and no evidence ocular or otherwise connects the present applicant with the commission of offence it is a fit case in which further enquiry in terms of subsection (2) of section 497, Cr.P.C. is called for. Accordingly, applicant is admitted to bail on his furnishing solvent surety in the sum of Rs.1,00,000 (Rupees one hundred thousand) with P.R. bond in the like amount to the satisfaction of learned trial Court. M.W.A./S-99/K Bail granted.