2010 PLP 732 (YLR)

SAJJAD ALI SHAH, J.

Through this "Criminal Bail Application, applicant Abdul Malik seeks bail in Crime No.862/2009 under section 302/34, P.P.C. of Police Station Preedy, Karachi. Briefly, on 6-7-2009 at 0520 hours A.S.I. Abdul Ghafoor saw a dead body in the pool of blood near Sony Centre, Preedy Street and after preparing necessary inquest report, took it to Civil Hospital, for post mortem. On information that his brother has been shot the complainant (brother of deceased) reached Civil Hospital where he saw the dead body of his brother. Consequently, Police recorded his statement under section' 154, Cr.P.C. wherein, he stated that today at 3-30, he was informed by Police Station Preedy that his brother has been shot dead. When he reached hospital he found the dead body of his brother lying in mortuary. He further disclosed that he came to know that at about 2-30 a.m. some one had killed his brother by firing at aforesaid place and now the wife of deceased told him that at about 2-00 a.m. deceased left the house and Yaqoob Malik who lives in front of the deceased's house, was on inimical terms with the deceased and they suspected him for the murder of deceased. It appears that on 7-8-2009 161 Cr.P.C. statement of deceased's wife Mst. Hina alias Babli was recorded wherein she has implicated the present accused on the ground that the deceased was lastly seen with him and consequently the applicant/ accused was arrested. Bail application on behalf of applicant/accused was moved before the learned VIth Additional Sessions Judge Karachi South which was dismissed on 30-9-2009. Learned counsel for the applicant contended that the name of the applicant/accused does not find mention in the F.I.R. and he is absolutely innocent and has been subsequently falsely implicated on the basis of a statement recorded after 31 days of incident due to grudge and personal enmity of the complainant. It was further argued that there is no direct or ocular evidence to involve the accused in the instant case nor any incriminating material has been recovered from him. It was lastly contended that the statement of deceased's wife on the basis whereof the applicant/accused was implicated in the instant case has lost its value, as on the basis of statement of deceased's mother wherein, she has implicated the wife of the deceased, she has been arrested in the said crime. In the circumstances, it was contended that the case against the applicant/accused is one of further inquiry and the applicant/accused is entitled to the concession of bail. Per learned counsel in the circumstances where the accused is implicated on the basis of last seen evidence and there is no direct eye-witness, the case is one of the further inquiry as laid down by the apex Courts in the cases of Aijaz Ahmed and others v. The State 1997 SCMR 1279 and Abdul Saleem v. The State, 1998 SCMR 1578. On the other hand, learned A.P.-G. along with Investigating Officer present, though acknowledge the fact that there is no direct evidence implicating the applicant in the commission of crime' and his implication is only on the basis of statement of Mst. Hina (wife of deceased) who is now facing the same charge on the basis of statement made by the mother of the deceased, asserted that the applicant is not entitled to bail as the accused has pointed out the place of incident. I have heard the learned counsel for the respective parties and perused the record. Admittedly the name of the applicant/accused does not appear in the F.I.R. nor any incriminating material was recovered from his possession during investigation and his implication was only on the basis of a belated statement of the deceased's wife wherein, she stated that the deceased was lastly seen with the applicant/ accused and one Abdul Rahman. However, she was also arrested on the basis of a statement made by the deceased's mother. It appears to be an admitted position that there is on eye-witness of the incident, no incriminating material has been placed on record to suggest the involvement of the applicant/accused in the commission of the offence. Regarding alleged disclosure of the place of incident by the accused admittedly it is the same from where the dead body was recovered which not only finds mention in the F.I.R. but also in the memo of inquest. Consequently, the place of incident was not a secrete place, the disclosure whereof disentitle the applicant/accused from the concession of bail. In similar situation the Honourable Supreme Court in the case of Abdul Saleem (supra) after recording the contention of the petitioner's counsel that the petitioner was not named in the F.I.R. no recovery had been effected from him, there was no eye-witness of the incident, and that the petitioner was falsely involved merely on the ground that the deceased was last seen being taken away by the accused, had enlarged the petitioner to bail. In the circumstances, in my opinion, it appears to be a case of further enquiry and I admit the applicant/accused to bail upon furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lac only) and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./A-168/K Bail granted.