1993 PCr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/202/201/34

Bail, grant of-- Besides ocular evidence there was evidence regarding the incident having taken place in the premises owned by the accused and the recovery of crime weapon from his possession

Extent to which the witnesses were to be believed could not be determined at bail stage and was to be decided at the trial

Reasonable grounds existed to believe that accused was guilty for an offence falling within the prohibitory clause of S.497, Cr.P.C. and he was not entitled to the grant of bail at such stage

Accused was refused bail in circumstances. Abdul Sattar v. The State 1986 P Cr. L J 1056; Wisal Khan v. The State 1992 PCr.LJ 398; Khalid Javed Gillan v. The State P L D 1978 SC 256 and Muhammad Hanif v. Manzoor and others 1982 S C M R 153 ref. Sardar Muhammad Ishaque for Applicant. Abdul Hakeem H. Bijarani, A.A.-G. for the State. Applicant Syed Farasat Ali alias Shahjee, who is detained in Crime No.625 of 1990, Jauharabad Police Station, under sections 302, 202, 201, 34, P.P.C. applied for bail before learned IInd Additional Sessions Judge (Central), Karachi, but without success. He has therefore, approached to this Court with the same prayer.

2. On night between 18-12-1990 and 19-12-1990 Mst. Koopia alias Ruby, a private prostitute, was brutally murdered and her dead body was brought to Abbasi Shaheed Hospital, Karachi, by co-accused Muhammad Razzaq. On 19-12-1990 at 6-30 a.m. Ali Asghar, S.I.P. Jauharabad Police Station, lodged F.I.R. of this crime on behalf of State. During the course of investigation it transpired that the present applicant who was interested to marry with Mst. Koopia alias Ruby committed her murder by firing at her by means of pistol in presence of her sister Mst. Soofia and P.W. Mst. Shahnaz wife of Muhammad Razzaq. On 29-12-1990, the applicant was arrested who produced the keys of his flat situated in Abdullah Centre, Karachi, where this incident took place. The bed which was found blood stained was also lying there. During the course of interrogation the applicant had also produced a .30 bore pistol.

3. I have heard Mr. Sardar Muhammad Ishaque, learned counsel for applicant and Mr. Abdul Hakeem H. Bijarani, learned AA,-G. for State. The latter has opposed the bail application.

4. It is contended on behalf of applicant that the conduct of both the alleged eye-witnesses appears to be dubious and although they claim to have witnessed this incident they kept quiet till 21-12-1990 when their statements were recorded for the first time under section 161, Cr.P.C. Reliance is placed upon the cases of Abdul Sattar v. The State reported in 1986 P Cr. L J 1056 and Wisal Khan v. The State reported in 1992 P Cr. L J 398, in an attempt to show that in the given circumstances the applicant is also entitled to the grant of bail. It has also been contended on behalf of applicant that although at the bail stage the Courts are not expected to enter upon a detailed appreciation and examination of evidence the question cannot be decided in vacuum and the Courts have to look at the material available on record. The cases of Khalid Javed Gillan v. The State reported in P L D 1978 SC 256, and Muhammad Hanif v. Manzoor and others reported in 1982 S C M R 153, are cited in this behalf.

5. The question whether an accused is entitled to the grant of bail is essentially a question of fact in each particular case and there cannot be any fixed formula for the exercise of discretion in such cases. Besides the evidence of the above two eye-witnesses, there is evidence to show that the incident had taken place in the flat owned by the applicant. There is also evidence of recovery of crime weapon from his possession. The extent to which the witnesses are to be believed cannot be determined at this stage and is to be decided by the trial Court after the case proceeds before it. Suffice it to say, that there are reasonable grounds to believe that the applicant is guilty for an offence falling within the prohibitory clause of section 497, Cr.P.C. and he is not entitled to the grant of bail at this stage. The perusal of the record however, shows that except Tasleem Hussain, H.C., who is a formal witness, no other witness has been examined upto this time, although a period of more than two years has elapsed. The trial Court is, therefore, directed to record the evidence of Mst. Soofia and Mst. Shahnaz within a period of three months from the receipt of this order. It will be open to applicant to repeat his bail application after these two witnesses are examined. With this observation/ direction the bail application is otherwise dismissed. By a short order dated 11-1-1993 I had dismissed this bail application and these are the reasons for the said order. N.H.Q./F-202/K Bail refused.