2016 PLP 94 (YLRN)

Ss. 498 & 497(2)

Penal Code (XLV of 1860), Ss.302, 201 & 34

Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, common intention

Pre-arrest bail, confirmation of

Further inquiry

Delay of 9 days in lodging FIR, was not plausibly explained

Investigation in the case had been completed, and challan had been submitted

Accused was Pakistan Army personnel, and had never been convicted before

Another FIR against accused by the complainant, during pendency of application for pre-arrest bail of accused, was of no help to the complainant, and accused was already on interim bail in that FIR

Case of accused fell within the ambit of S.497(2), Cr.P.C., calling further inquiry

Interim bail earlier granted to accused, was confirmed, in circumstances. [Para. 3 of the judgment] Ayaz Hussain Gopang for Applicant. Wali Muhammad Khoso for the Complainant. Shahid Ahmed Shaikh, A.P.-G. and Irum Ahmed, D.D.P.P. for the State. ORDER ANWAR HUSSAIN, J.

By way of this Bail Application, the Applicant/ Accused is seeking Pre-arrest Bail, after rejection of his Pre-arrest Bail Application vide Order dated 12.09.2015, passed by learned IInd Additional Sessions Judge, Shaheed Benazirabad, in Crime No. 05 of 2015, under sections 302, 201 and 34 of Police Stateion, Nasri.

2. Brief the prosecution story is that Complainant's father namely Meenhoon Khan son of Achar, was not on good terms with Complainant's maternal uncle namely Wahid Bux son of Buxial Khoso, who used to asked the Complainant that one day he will teach lesson to the said father of the Complainant. On 4.7.2015 Complainant was in his house along with his father when at about 10:30 a.m. the said maternal uncle of the Complainant along with some unknown persons came to Complainant's house and took away his father towards the northern side of the village, as said uncle had some personal work with him, when the father of Complainant did not return till night the Complainant went to the house of his maternal uncle, but was not found there and Complainant even called him on phone, but his Cell number was off. The Complainant, his brother and other relatives searched the father of Complainant, and could not get any clue. On 9.7.2015, Complainant phoned the said maternal Uncle who disclosed that he has killed the Complainant's said father and the dead body is lying into the bushes/water ditch in the lands of Ghulam Sarwar Khoso. Then the Complainant and said witnesses searched and found the dead body from the bushes. The Complainant called the Police, took away the dead body for Postmortem and after Post-Mortem they buried the dead body and sat for condolence. On 13.7.2015 the Complainant lodged the Report against the said Accused persons in respect of the said Crime. a. That the name of Applicant/ Accused do not find place in the instant Crime/FIR; b. That the alleged incident is of 4th July, 2015, when Accused Wahid Bux took the deceased with him, and went missing, on 9th July, 2015, when Accused Wahid informed the Complainant about the commission of murder and dead body found, but later on 13th July, 2015, the instant FIR was lodged; as such there is a delay in lodging the FIR; c. That after the recovery, post mortem and burial of dead body, the Complainant sat for condolence and thereafter lodged FIR, such explanation for delay in lodging the FIR is not plausible particularly in murder incident; d. Even otherwise, the deadbody was recovered and post-mortem conducted on 9.7.2015, through Police, who in spite of that did not register the FIR, which was registered later on; e. That the Complainant in his further Statement to Police, has nominated the name of Applicant as Accused and on disclosure of the nominated Accused Wahid Bux, that the Applicant/Accused concealed the dead body; f. Such Statement of Accused in law cannot be used against other Accused and that too without any corroboration; g. That Investigation has been completed and Challan has been submitted in the matter; h. That admittedly the Applicant/ Accused is Sepoy of Pakistan Army, and has never been convicted before; i. The case law i.e. 2011 SCMR 161, 2004 YLR 2434 (Karachi) and PLD 2008 Karachi 01, are helpful to the case of Applicant, whereas case laws i.e. 2015 SCMR 1394 and 2003 SCMR 68 are not helpful to the case of Prosecution. j. Another FIR No. 139 of 2015, against Applicant, by the Complainant, during pendency of Pre-arrest Bail of Applicant in the Sessions Court, which has been referred to by the Complainant in this Bail Application, is of no help to the Complainant, and the Applicant/Accused is already on Interim Bail in the FIR No.139 of 2015, and any observation in regard to the same in this Bail Application, would not be proper;

5. In view of the above, the case of the Applicant falls with the ambit of section 497(2), Cr.P.C. and as such the applicant is entitled for Confirmation of Bail. Accordingly, the Interim Bail earlier granted to the Applicant/Accused vide Order dated 22.9.2015, is hereby confirmed on the same terms and conditions.

6. The above observations are tentative in nature and shall not prejudice the case of either side before the Trial Court. HBT/M-49/Sindh Bail confirmed.