2018 PLP 88 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicants Mst.Shazia and Safdar Hussain have impugned order dated 30.06.2015, whereby their earlier bail application was declined by the Court of learned II-Additional Sessions Judge, Ghotki.

2. Necessary facts spelt out from FIR are that complainant lodged report on 29.04.2015, at 2000 hours, that his brother namely Mian Aijaz Rabbani after his retirement as Civil Judge, was residing in Shanti Nagar, Ghotki along with his wife Mst. Aijaz Akhter, who was annoyed with his brother on contracting his second marriage with Mst. Shabana Mangi and their relations were also strained regarding the sale of their house which was purchased on her name. It is further alleged that during the night of 26/27.04.2015, wife of deceased, namely Mst. Aijaz Akhter in connivance with co-accused Aijaz Rajput, Mst. Shabana, Safdar Hussain and Mst. Shazia committed the murder of his brother Mian Aijaz Rabbani, hence instant FIR.

3. Learned counsel for applicants contended that both applicants are innocent and have been falsely implicated in instant crime by complainant with ulterior motives; that there is no direct evidence against applicants available with the prosecution to implicate them in the commission of alleged offence; that no independent witness has supported prosecution case; that there is no eye-witness of the incident and subject property was purchased on the name of co-accused Mst. Aijaz Akhtar, which is still lying in her name; hence there was no need to pressurize the deceased not to sell their house; that on the application of complainant, investigation was transferred to ASP Khairpur, and Challan was submitted on 11.06.2015, and names of applicants were placed in column 2; that in compliance of order passed by learned DB of this Court, case was re-investigated and again their names are placed in column 2; that applicants are behind the bar since about 07 months without any trial. Learned counsel has relied on the case of Malik Waheed alias Abdul Hameed v. The State and another (2011 SCMR 1945), Muhammad Hanif v. The State (2010 PCr.LJ 390) and Punhoon Jaffery v. The State (2011 YLR 2803).

4. While controverting the above submissions, learned counsel for complainant and complainant Mumtaz Rabani contended that applicants have facilitated both the main accused namely Mst. Aijaz Akhtar and Aijaz Rajput in the commission of alleged offence as such they are not entitled for concession of bail; that Muhammad Imran servant of deceased, witnessed the incident by swearing his affidavit before the Court of Civil Judge and Family Judge, Ghotki on 22.06.2015, whereby he has implicated all the accused named in FIR in the commission of alleged offence, hence his name may be included in the array of prosecution witnesses.

5. Learned APG supported the arguments advanced by learned counsel for complainant and further submitted that applicants may be directed to file their bail application a fresh before the trial Court as re-investigation of the crime has been conducted and now their names have been placed in column-2.

6. Investigating Officer Inspector Ghulam Ali Jumani present in Court, submitted that he investigated the crime thoroughly, but neither said Muhammad Imran was produced by the complainant before him for recording his statement nor copy of his affidavit was produced before him during the investigation.

7. Heard the arguments advanced by learned counsel for the parties supported with case law and perused the material available on record.

8. Perusal of FIR reflects that complainant has lodged FIR after about 03 days of the incident but he has not mentioned about Muhammad Imran allegedly serving as servant of deceased to be available in the house at the time of alleged incident. Complainant has neither produced said Muhammad Imran before the Investigating Officer for recording his statement nor furnished copy of his affidavit sworn before the Civil Judge, Ghotki, which requires serious consideration. However, to meet the ends of justice, learned trial Court is directed to record the statement of Muhammad Imran son of Nizamuddin, if complainant produces him before the Court during trial. Admittedly, instant case has been investigated twice but prosecution has failed to place any direct iota of evidence connecting the applicants with the commission of alleged offence as well as facilitation to both main culprits. The material placed before this Court is silent regarding availability of both applicants at the spot at the time of occurrence, as they are residing about 1-km away from the house of deceased and as per re-investigation report of the case, they reached at the spot after 20/25 minutes of the occurrence of incident. During investigation nothing was recovered from their possession and considering insufficient evidence, applicants have been declared innocent twice. Neither any person from the locality nor from neighbourhood came forward to support the allegations leveled in FIR and even no eye-witness has been examined during course of investigation by the complainant. The averments of FIR entirely depend on the hearsay evidence as neither complainant was available at the spot nor he is eye-witness of the incident.

9. Conversely, at the first instance, investigation was carried out by Investigating Officer at Ghotki, but on the application of complainant moved to the DIG Sukkur, investigation was transferred and assigned to Masood Ahmed Banguish ASP/SDPO of Khairpur City, but he instead of conducting investigation, has assigned the same to Inspector Peer Ali Shah, who after conducting the inestigation, submitted Challan on 11.06.2015 by placing the names of applicants in column 2; that learned DB of this Court vide order dated 10.12.2015, directed Inspector Ghulam Ali Jumani for re-investigation of crime, and he after re-investigating the matter, has submitted his report and again exonerated both the applicants by placing their names in column 2.

10. In the case of Malik Waheed (supra), the honourable Supreme Court has observed that accused was not found by police to be involved in the matter, he was declared innocent in successive investigation and nothing was recovered from him, no such injury was attributed to him, he was enlarged on bail. In case of Muhammad Haneef (supra), it was observed that only allegations against accused in FIR are that he fired in air to cause harassment, no other allegation leveled against accused and police found him innocent during the course of investigation, accused having made out a case for grant of bail, he was enlarged on bail in circumstances. In case of Punhoon Jaffery (supra), it was observed that Investigating Officer found the accused innocent during the investigation due to insufficient evidence and kept his name in column-2 of the challan, thus accused was enlarged on bail.

11. So far the contention of new ground is concerned, admittedly, during the pendency of instant bail application, complainant filed C.P No.D-1563 of 2015, and DB of this Court vide order dated 10.11.2015, directed Inspector Ghulam Ali Jumani to re-investigate the crime and submit report. Investigating Officer conducted reinvestigation of the case and declared both applicants innocent and recommended their release. Likewise, during the earlier investigation, applicants were also found innocent and their names were placed in column No.2 in Challan. Consequently, subsequent report submitted by the police in compliance with the order passed by DB of this Court could not be termed as a fresh ground and bail application of applicants already pending before this Court could not be declined with direction to approach the trial Court on this score.

12. Considering the above circumstances, I am of the view that case of applicants falls within the purview of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.100,000 and P.R. Bond in the like amount to the satisfaction of learned trial Court.

13. The above observations are tentative in nature and learned trial Court shall decide the case purely on merits. WA/S-13/Sindh Bail grante