2009 PLP 274 (YLR)

SYED MAHMOOD ALAM RIZVI, J.

This bail application is directed against the impugned order passed by IInd Additional Sessions Judge Karachi East in S. C. No. 480/2005 in Crime No.253/2005 registered under section 302, P.P.C. at Police Station New Town Karachi East. Precisely, the facts of the case are that the complainant Muhammad Hasan son of Hamid Hussain alleged that her sister Shaista, the deceased, was serving as judicial Magistrate. The complainant further disclosed that he has strong suspicion that accused Sajid Constable of ACLC has murdered his sister. On 2nd September, 2005, accused made miscalls from his mobile phone at different times on the mobile phone of the complainant. On the same night Judicial Magistrate Ms. Zabiah Khatak called on his mobile phone that Sajid has told her that Shahista has locked herself in a flat situated at Bahadur Abad. Whereafter, when complainant contacted Ms. Zabiha Khatak on her phone who disclosed that Sajid has disclosed her that now it is useless and only dead body of Shahista will be found. At about 3-00 a.m. in the night they saw police mobile of New Town and Sajid standing on the road behind Tosso Restaurant Bahadur Abad and after inquiry police took them to upper portion of the home and after breaking the doors they found dead body of Shaista hanging with ceiling fan in the room, which was brought down and placed on bed. The dead body of Shaista was first taken to New Town Police Station and thereafter, to Jinnah Hospital. After murder of his sister some written papers were found in the Almirah of deceased which shows that Sajid had been black mailing and extending threats to his sister and had done such acts resulted to her death. The complainant further stated that Entry No.48 at about 0300 hours has been lodged by the applicant/accused in order to conceal his involvement and to mislead the investigating agency, which is totally false. Their sister Shahista was residing with them at Federal B Area and on 2-9-2005 she went on her duty to City Courts and did not come back to their house. It is, requested that a case for murder of Shahista Hamid be registered against Sajid and action be taken in accordance with law. That on the above statement F.I.R. was registered. That during investigation police secured finger prints and certain articles from the house, secured handwritten pages of the deceased regarding difference threats given by the applicant/accused, produced by the complainant. The prosecution also recorded the statement of landlord and her daughter and other witnesses in respect of marriage of the deceased with the applicant. After completing the investigation, case was challaned, five prosecution witnesses have been examined so far out of 16 P.Ws. The last rwitness was examined on 5-5-2008. That earlier, bail application bearing No.415/06 filed in this Court was dismissed as withdrawn on 30-6-2006 as the learned counsel for the applicant contended that he would move a fresh bail application after examination of the complainant. That, after examination of the complainant, the applicant filed second bail application, which was turned down on 15-8-2007 by the trial Court on the basis that first bail application of the applicant was dismissed vide order dated 28-11-2005. That after examination of the material witnesses, the applicant filed another bail application before the learned trial Court, which was also dismissed by impugned order. Mr. Habib Ahmed, learned counsel for the applicant has contended that applicant has been falsely implicated in the present case; that no direct and indirect evidence is available against the applicant; there is delay of 5 days in lodging the F.I.R. which is without any plausible explanation. He further argued that the complainant with mala fide intention has involved the present applicant/ accused by converting a suicide case into a murder case against the applicant/accused. He further contended that statements of the brothers of deceased recorded by the trial Court are contradictory with the statements recorded under sections 154 and 161, Cr.P.C. Although the same were recorded after 5/6 days of the incident. Admittedly applicant/accused was residing in the said house with the deceased, therefore, positive report of the finger prints is natural. The learned counsel further pointed out that the lady doctor Kausar Parveen has admitted during the cross-examination that legs of the deceased were not bent at the time of post-mortem; that the applicant himself reported to the police that his wife locked herself in the house and when police reached at the house the brother of the deceased also came there and dead body of the deceased was recovered after breaking three doors of the house. It has been further argued that according to the post-mortem the probable time of death was in between 10 to 12 p.m. whereas the applicant was in touch with the complainant as well as Ms. Zabiah Khattak, the learned judicial Magistrate, on telephone from 3 p.m. till late hours of the night which shows that the applicant was outside the house. He further contended that lady was in depressed condition due to her family problems. He further contended that family of the deceased is still denying that she was married with the applicant and such denial proves that complainant party has not come to the Court with clean hands. Conversely, Mr. Muhammad Bukhsh, learned counsel for the State, while vigorously opposing the grant of bail has requested that the counsel for the complainant may also be heard. Mr. Naqi Mirza learned counsel for the complainant argued that the applicant is a blackmailer and according to the hand written papers of the deceased the applicant used to misbehave with the deceased and extended threats to the deceased which clearly demonstrates his involvement in this case; that the fingerprints taken from the fan as per report clearly connect the applicant with the commission of this offence. He has further contended that according to the statement of landlord and his daughter they heard the voice of breaking the articles and at the time of recovery of the dead body the broken house hold articles were lying on the floor but the police has not mentioned about the broken articles in the mashirnama; that the dead body of the deceased was not hanging, but in fact the legs of the deceased were bent, therefore, the deceased was killed first and then tried to show hanged; that this is supported by the 174, Cr.P.C. report, according to which the legs of the deceased were found in bent condition by the police. He has contended that the accused himself bolted both the doors from inside with the help of thread and after locking the front door left the house. The recovery of key of the house from the applicant and the recovery of pieces of threat and a window having bolt from the house of deceased, was sufficient proof of the above facts. He lastly contended that if, the accused is released on bail he will tamper with the prosecution evidence as earlier also he tried to win over P.W. Shafiq, therefore, the prosecution had given up the said witness. He further contended that material witnesses have already been examined and only few witnesses are yet to be examined i.e. Ms. Zabih Khattak, the Judicial officer, finger printer expert, mashir of recovery and Investigating Officer of the case. Therefore, instead of granting bail to the applicant direction may be given to the trial Court to examine these witnesses to conclude the trial. The learned counsel relied upon the following cases:-- (1) Abdul Hayee and 2 others v. The State (1996 SCMR 555). (2) Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCMR 1765). (3) Muhammad Sharif v. The State (1980 SCMR 313). (4) Allah Ditta v. The State (1990 SCMR 307). (5) Muhammad Sadiq and others v. The State (1980 SCMR 203). (6) Muhammad Usman and another v. The State (1975 SCMR 391). (7) Shoaib Khan v. The State (1996 PCr.LJ 810). (8) Sabz Ali and 3 others v. The State (PLD 1993 Quetta 66). Heard both the learned counsel and perused the record. It is admitted position that the applicant and the deceased used to stay daily in the said house for couple of hours and fingerprints on the fan and other articles of the applicant are natural, therefore, I agree with the learned counsel for the applicant that this evidence alone is not sufficient to connect the accused with the commission of crime. It is further observed that merely recovery of pieces of thread is not sufficient proof of the fact that the applicant was practicing how to open and close the sliding bolt of the door from outside the room when the police has not collected any other evidence in this regard. As far as the handwritten pages of the deceased are concerned, although the complainant and the office clerk of the deceased have identified the same to be the handwriting of the deceased but the same were not referred to any handwriting expert, and on perusal of these pages admittedly no such fact has been mentioned that the applicant was going to kill her, but it demonstrates that the applicant had given threats to deceased to marry with him otherwise, he would kill her brother, this fact, prima facie, shows that these pages were written prior to the marriage of the deceased with the applicant. Since the case is pending before the trial Court therefore, I refrain myself from further discussion about these pages at this stage. The learned counsel for the complainant has put much emphasis on the face that legs and hands of the deceased were bent which fact is also stipulated in the report under section 174, Cr.P.C, but this is not supported by any other document prepared at the time of recovery of dead bode. In the report under section 174, Cr.P.C. it has only been mentioned that hands and legs were bent but neither in statement under section 154, Cr.P.C, nor in the mashirnama of place of incident dated 3-9-2005, it is mentioned that knees of the deceased were touching the bed. Admittedly brothers of deceased, the landlord and the police officials were present at the time of recovery of dead body and if the dead body of the deceased was found in such condition as argued by the learned counsel then the police must have arrested the applicant immediately. Secondly, the lady doctor who examined the dead body of the deceased contradicted the version of the complainant by admitting during the cross-examination that the legs of deceased were not bent/curved. Even the complainant has admitted that they laid down the deceased on bed. That about the noise of articles, according' to the statements of the landlord namely Noman Ahmed and his daughter Aisha, that they heard voice of breaking of articles from the upper floor at about 3 p.m. whereas, according to Ms. Aisha, the applicant came there at 4 p.m. who rang the bell of his house and also tried to contact with the deceased through mobile phone but he received no reply therefore, he left the place after waiting for an hour. This statement of the daughter of landlord supports the case of the defence that the accused was outside the house. The probable time of death according to post-mortem was between 10 to 12 p.m. and the prosecution has no evidence to show that the applicant was inside the house at that time. It is, well settled principle that the Court should refrain itself from deeper appreciation of the prosecution evidence at the bail stage but this principle is applicable to the cases in which direct evidence is available against the accused but in the cases of circumstantial evidence only, it is, the duty of the Court to see whether sufficient evidence is available with the prosecution to connect the accused with the commission of crime or not. For such conclusion the Court may evaluate entire prosecution evidence even at bail stage and Court has to see whether the accused is entitled for grant of bail or not. Therefore, the judgments referred by learned counsel for the complainant are distinguishable as in the above reported cases direct evidence was available against the accused. In the light of above discussion, the case against the applicant requires further inquiry, therefore, the applicant is granted bail subject to his furnishing the solvent surety. in the sum of Rs.2,50,000 (Rupees Two lacs and Fifty thousands only) and P.R. bond in the like amount to the satisfaction of the trial Court. However, the complainant may move application for cancellation of bail before this Court if any material evidence is brought on record through the remaining witnesses. The above observations are tentative in nature and trial Court shall not be influenced while deciding the case on merits. N.H.Q./S-73/K Bail allowed.