2020 PLP 1977 (MLD)

ABDUL MOBEEN LAKHO, J.

Having remained unsuccessful in obtaining his release on bail from the trial Court in case Crime No.74 of 2019 registered at police station Ittehad Town, Karachi, under Section 302/34 P.P.C. Now the applicant is seeking for his post-arrest bail in the said crime through instant bail application.

2. The facts alleged in the FIR lodged by the complainant namely Abdul Razzaq son of Aziz-ur-Rehmen are that on 07.04.2019 at 1300 hours his daughter Ayesha Bibi who was married to Imtiaz Khan 10 years ago and out of the wedlock, four children, two daughters and two sons were born. On 07.04.2019 at about 02:00 p.m. his son in law Imtiaz Khan called and informed him that his daughter was not feeling well and was unconscious as such the complainant alongwith his wife went to his daughter's house at Ittehad Town where the husband of his daughter namely Imtiaz Khan informed that a quarrel had taken place between them due to which the daughter of the complainant committed suicide by hanging herself from a ceiling fan and thereafter the complainant informed the police chowki Muhammad Khan Colony and took the dead body in Edhi Ambulance to Civil Hospital Karachi where police officer made the proceedings and the lady doctor conducted the postmortem examination and accordingly the complainant had lodged the instant FIR against Imtiaz Khan and his brother Ayaz for beating his daughter and strangulating her.

3. After investigation the challan had been submitted and the case was transferred to the Court of learned Additional District and Sessions Judge-IX Karachi West where the charge was framed on 03.09.2019 and the instant application for bail was filed. Thereafter the case was transferred to this Court and R&P's were received on 21.10.2019.

4. Mr. Shafqat Zaman, the learned counsel for the applicant contended that applicant/accused is in innocent and has been falsely implicated in this case by the complainant in collusion with police mala fide with ulterior motive for achievement of mala fide objectives as apparently the element of false implication of accused is available in the FIR and the case requires further inquiry; that there is delay of 30 hours in the registration of FIR without any explanation which shows the deliberation and consultation before lodging the FIR; that admittedly the incident is un-witnessed incident and there is no direct evidence against the accused and entire prosecution case is based on circumstantial evidence, which is yet to be established by the prosecution on the basis of evidence at the trial; that four minor children of deceased Ayesha Bibi were present at the time of alleged incident at the house, whose statements were recorded by investigation officer but not included the same with the investigation papers, while the minor children have clearly disclosed that their mother has committed suicide. The FIR was based on suspicion and no incriminating article was recovered or seized from the spot except one stick of 14" and one black dopata, thus case is of further enquiry; the case has been registered under section 302/34 P.P.C. against two accused persons on the basis of opinion of medical officer, who formed wrong opinion with unfounded reasons that here are signs of maltreatment on the body of the deceased, which signs of maltreatment are of simple nature and could not be taken, sufficient to cause death of a person in ordinary course of nature and opinion of medical officer is subject to cross examination at the trial and thus the presumptive opinion of doctor is not conclusive proof, which requires further probe; that neither the complainant nor any other person has attributed any direct role in participation by the above named applicant in the commission of alleged offence except the suspicion of complainant upon applicant due to created enmity; that the accused is in custody and is no more required by the police for the purposes of investigation and his further detention in jail custody shall amounts to punishment in advance; there are no reasonable grounds to believe that applicant/accused has not committed any offence punishable with death, imprisonment for life or ten years.

5. Mr. Zahoor Shah, learned Deputy Prosecutor General opposed this bail application on the ground that the Medico-legal report shows that it is a case of homicide and 1.O. had collected one Bamboo Stick measuring 14 inches and 01 Dupatta/Scarf from the place of incident, and accused himself had accepted there a quarrel took place between husband and wife and further contended that the circumstances connect the accused with the commission of the offence and prayed that this bail application may be dismissed.

6. It is a fact that alteration took place between the couple which resulted in a physical fight and Ayesha Bibi received injuries as mentioned in ground 10 of the bail application which reads as under:

10. That the case has been registered under section 302/34 P.P.C. against two accused persons on the basis of opinion of medical officer, who found wrong opinion with unfounded reasons that here are signs of maltreatment on the body of the deceased which signs of maltreatment are of simple nature and could not be taken, sufficient to cause death of a person in ordinary course of nature and opinion of medical officer is subject to cross-examination at the trial and thus the presumptive opinion of doctor is not conclusive proof, which requires further probes.

7. According to the applicant she committed suicide but when medically examined the MLO opined as follows: - Construction of Neck as in strangulation, caused by a soft ligature material leading to asphyxia which caused cardio respiratory arrest and subsequent death and the manner of the death was Homicide.

8. Only tentative assessment is required. Hence keeping the above medical report in mind it appears as far as the application is concerned that at the time of incident admittedly only the Husband was with the deceased who had informed the complainant that Ayesha Bibi was not feeling well and was unconscious.

9. The reason given for the above condition was an altercation between the couple resulting in suicide which prima facie does not click as the medical report runs counter to the above suggestion. Specially when the I.O had received a Bamboo stick of 14 inches and a Dupatta from the place of incident which to me corroborates with the medical report hence I am not inclined to grant bail.

10. As regards the delay in lodging of the FIR is concerned, the record reveals that the complainant initially did not lodge an FIR thinking it was a suicide but then but after the MLO opined that it was not a suicide but a murder "as in strangulation" per MLO then the delay in lodging of the FIR after the MLO opinion has been considerably explained.

11. These are the reasons of any short orer dated 09-03-2020. This Criminal Bail Application stands dismissed in the same terms. SA/I-17/Sindh Bail declined.