2011 PLP 1459 (YLR)

GHULAM SARWAR KORAI, J.--Facts of the case are that on 13-10-2007 at about 0330 hours complainant Arsalan Shabbir Supra lodged the F.I.R. at Police Station Boat Basin, Karachi stating therein that his father Shabbir-ur-Rehman Supra was doing his own business. As usual he left the house for his office and later oh informed the complainant that he will come back to his house after Aftari. While after 9-00 p.m. when he was not returned at his house then complainant tried to contact him on phone but phone was off therefore, complainant contacted , to Tracker Company, who informed him that vehicle of his father bearing No.AGK-523 white colour is parked at Boat Basin Chowrangi. Complainant reached there and found vehicle of his father was available at Boat View Apartment School. Meanwhile complainant received a phone from one Munawar Sheikh, friend of his father, to meet with him, therefore, he immediately rushed to Munawar Sheikh and then both reached to Jinnah Hospital at Karachi, where they came to know that one person has been murdered in the flat at third floor at Boat Basin View Apartment, and his dead body is in the Edhi Cold storage. Complainant and his mother immediately went to Sohrab Goth, Karachi where dead-body of Shabbir-ur-Rehman Supra was identified by his wife. Thereafter complainant lodged the report against unknown person. After registration of the F.I.R., statement under section 161, Cr.P.C. of the applicant was recorded by the I/O on 13-10-2007, then her second statement under section 164, Cr.P.C. was recorded before the Judicial Magistrate on 22-11-2007. Thereafter she was arrested on 5-4-2010 and was produced before the Judicial Magistrate for recording her confessional statement, which was recorded on 6-4-2010 and after completing the investigation, challan was filed on 7-7-2010. Bail application of the applicant was filed on 13-11-2010 but the same was dismissed on 27-11-2010 and that order is impugned in the present bail application. Heard Mr. Muhammad Akbar Khan, learned counsel for the applicant, Mr. Kashif Hanifz learned counsel for the complainant and Mr. Abdullah Rajput, learned A.P.-G. for the State. Learned counsel for the applicant contended that F.I.R. was registered by the complainant against unknown persons. The applicant being one of the eye-witness was examined by the Investigating Officer under section 161, Cr.P.C. and subsequently she was produced before the Judicial Magistrate for recording her statement under section 164, Cr.P.C. and on the basis of her statement accused Syed Humayun Ali was arrested on 19-3-2010 but let off by the police on 31-3-2010 by placing his name in the Column No.2 of challan. He further contended that Maryam Khatoon mother of the complainant, Mst. Urooj sister of the complainant, complainant himself and one Dr. Muhammad Hafiz brother in law of the deceased Shabbirur Rehman Supra sworn their affidavits on 14-4-2010 and 4-5-2010. stating therein that the applicant is only eye witness of the incident therefore she may be treated approver therefore on 13-4-2010 one application was filed by Inspector Sanaullah Cheema addressed to SSP of S.I.U. CCP Karachi for necessary permission, such permission was granted to him and then said application was filed in the trial Court but the same was dismissed vide order dated 12-10-2010. He lastly contended that applicant is eye-witness of the incident and deceased Shabbirut, Rahman Supra was her Boss. Shabbirur Rahman Supra arranged Aftar party for his two friends namely Syed Hamayun Ali and Ehsanullah at his apartment situated at Flat No.A-16 Boat View Apartment, Clifton, Karachi and she was also invited, when she reached there and found that there was no arrangement of Aftari, on the contrary Syed Humayun Ali, Ahsanullah and three girls were there. They were busy in objectionable activities and were drinking wine, therefore, she objected to deceased Shabbirur Rehman Supra, therefore Syed Humayun Ali and Ahsanullah were restrained by the deceased, hot words were exchanged and lastly they started fighting with each other. Applicant tried to separate them but she was also become injured and lastly deceased was murdered by Ehsanullah Khan and his head was separated from his body, and kept it in the shopping bag. He further contended that in the first statement under section 161, Cr.P.C. of the applicant was recorded by the I/O on the very day after registration of the F.I.R. She is only eye-witness then she was produced before the Judicial Magistrate and second statement was recorded under section 164, Cr.P.C. and lastly after about 2-1/2 years she was arrested without any material with the prosecution against her and was produced before the Judicial Magistrate, where her confessional statement was recorded. He also contended that Syed Hamayun Ali let off by the police therefore his name was placed in the Column No.2 of the challan, Ahsanullah Khan main accused, who has committed murder of Shabbirur Rahman Supra was granted bail by this Court on 30-8-2010 and above position is still intact. He lastly contended that the case of the applicant is better than to the case of Syed Huamayun Ali and co-accused Ahsanullah. He prays for grant of bail. He relied upon the cases of Zohra Khanum v. The State 2009 SCMR 751, Mst. Naziran v. The State 1983 PCr.LJ 1972, Mst. Raeesa v. The State 1985 PCr.LJ 2823, Mst.Zebo v. The State 1989 PCr.LJ 594, Rahim. Khatoon v. The State 1989 PCr.LJ 1861, Ayesha and 3 others v. The State 2008 PCr.LJ 1149, Khalida Akram v. The State 2007 PCr.LJ 875, Jiomal alias Jariam v. The State 1997 MLD 2470. Learned counsel for the complainant opposed the bail application on the ground that applicant is involved in the murder of Shabbirur Rehman Supra therefore she was arrested and, she was produced before the Judicial Magistrate and she confessed her guilt and her confessional statement was recorded, therefore, there is sufficient material with the prosecution to connect the applicant, hence, she is not entitle to release on bail. He relied upon the cases of Mamaras v. The State PLD 2009 Supreme Court 385, Altaf Hussain v. The State 1999 MLD 2199, Iqbal Brohi v. The State 1998 PCr.LJ 2066, S. Muhammad Hashim and 2 others v. The State 1998 PCr.LJ 817, Muhammad Rizwan v. The State 1998 PCr.LJ 746, Mst. Masood Begum v. Muhammad Maroof and 2 others 1998 PCr.LJ 56, Ajmal and another v. The State PLD 1997 Karachi 142, Ayyaz Ahmed v. Allah Wasaya and 2 others 1995 PCr.LJ 80, Bashir Ahmed" v. The State PLD 1994 Karachi 462, Fida Hussain and another v. The State 1985 PCr.LJ

336. Learned State Counsel adopted the same argument of learned Counsel for the complainant. I have also perused the file. Admittedly, incident has not been seen by the complainant himself. Applicant is one of the eye-witness of the incident as she was called by the deceased at his apartment to attend Aftar party, which was allegedly arranged by the deceased for his friends Syed Humayun Ali and Ehsanullah Khan while she reached there, she found other women and there was no arrangement of Aftari. Copy of the challan annexed with the bail application at page 53 shows that these women were neither shown as accused nor witness. Firstly she was examined as witness by the Investigating Officer on the very day of the registration of the F.I.R. Thereafter she was produced before the Magistrate and her statement under section 164 was recorded. During investigation one Syed Humayun Ali was arrested but released by the police. Thereafter applicant was arrested on 5-4-2010 though there was no evidence against her and-thereafter she was produced before the Magistrate, where she allegedly confessed her guilt. Prosecution moved an application under section 337, Cr.P.C. to the learned trial Court but it was dismissed. All the legal heirs viz wife, daughter, son and brother in law of the deceased sworn their affidavits for making the applicant as approver witness but was not done, even then applicant sent an application to the I/O on 26-4-2010 making request that she may be cited as approver witness but nothing was done. Syed Humayun Ali was let off by the police and main accused Ahsanullah, who allegedly killed Shabbirur Rahman Supra was granted bail by this Court and position is still intact. Evidence against the applicant is zigzag one of the entire material collected by the prosecution may be believed in toto then neither the deceased Shabbirur Rehman Supra was murdered by the applicant nor any allegation of conspiracy is against her. Applicant being a lady also deserves some more leniency. The case law relied by the learned advocate of the complainant is quite distinguishable to the facts and circumstances of the case of the applicant. Investigation has been completed and she is no more required for the purpose of investigation, therefore, this bail application is allowed. Applicant shall be released on bail subject to furnish of her solvent surety in the sum of Rs.200,000 and P.R. bond of like amount to the satisfaction of the Trial Court. M.H./P-5/K Bail allowed.