2006 PLP 1691 (YLR)

MUHAMMAD AFZAL SOOMRO, J.

The applicant is facing trial in a case bearing F.I.R. No.251 of 2004 registered with Police Station Darakshan, Clifton, Karachi for offences under section 302/34, P.P.C.

2. The bail plea of the applicant was declined by the learned Ilnd Additional Sessions Judge (South+West) Judicial Complex, Karachi vide impugned order dated 25-10-2005.

3. The prosecution story as unfolded in the F.I.R. is as under:-- "That on 27-10-2004 at about 10-25 a.m. F.I.R. bearing No.251 of 2004 was registered at Police Station Darakhshan, Cliftion, Karachi, in consequence of verbal statement of complainant, Burhan Ahmed son of Hussain Ahmed, stating therein that on 26-10-2004 he went to the house of his brother Irfan Ahmed situated near Taj Complex where all family members had Iftari together. It is further stated in the F.I.R. that while the complainant along with his brother was going to perform Isha prayer, his brother (Irfan) received a call on his mobile telephone of one Zubaif, who is a Jeweller in Saddar Market, with whom brother of the complainant had some business relations. It is further stated in the F.I.R. that both Zubair and brother of the complainant made a program on telephone. However, brother of the Complainant was called by Zubair. Thereafter, they (the complainant party) went to offer Isha prayer whereafter the complainant went to his house. Before Sehri, mother of the complainant made a telephonic call to him disclosing that said Irfan had not come back. The complainant made telephonic call to Zubair (applicant), which was switched off. Thereafter, the complainant dialed a regular number of Zubair, which was also powered off. Then the complainant went to the house of Zubair (applicant) and inquired about his brother, on which Zubair (applicant) replied that he don't know. The complainant again asked Zubair that his brother came to him, he must know and search for him, Zubair took the complainant in his Mehran Car to Clifton to collect the enquiries from the Hotels. When the complainant found no information from the Hotels, then he went to the Police Station Darakhshan, Clifton, Karachi, where Duty Officer, informed them regarding the recovery of dead body in night time and from the search of body a identity card and other items were found and shown to him, which the complainant identified and confirmed the belonging of his brother. The complainant identified the body. The complainant have doubt that Zubair (applicant) along with other persons due to unknown reasons have killed his brother. Take legal action as per law."

4. Investigation followed and in due course the applicant was sent up to stand trial in the Court of law.

5. I have heard learned counsel for the applicant, learned counsel for the State and learned counsel on behalf of the complainant.

6. It has been contended by learned counsel for the applicant that there is no direct evidence against the applicant; that the statements were recorded in the police station; that there is no eye-witness to the incident; that the only piece of evidence against the applicant is last seen with the deceased Irfan Ahmed; that the pieces of diamond recovered from the applicant belonging to the deceased were "Amanat" of the deceased and the same were recovered in presence of police officials and that all the witnesses are police officials. He has further contended that there is delay of eight hours in lodging the F.I.R. He has been falsely implicated in the present case as such the case of the applicant requires further inquiry in terms of section 497(2), Cr.P.C. by which the concession of bail can be extended to the applicant. He has placed reliance on the cases of Muhammad Jalil v. State (1990 ALD 460(1)), Fazal Elahi v. Crown (PLD 1953 Federal Court 214), Muhammad Akbar Tariq v. State (1977 PCr.LJ 540), Allah Ditta v. State (1977 SCMR 251), Abdul Latif v. Crown (PLD 1952 Federal Court 113) and several other authorities in support of his aforementioned contentions.

7. On the other hand, learned counsel appearing on behalf of the complainant has opposed the grant of bail on the ground that this is a case where a murder has taken place and the applicant is nominated in the F.I.R. so also the recovery of diamond has been effected from the possession of the applicant. He has further contended that charge was framed in the trial Court and five prosecution witnesses have been examined. Three witnesses have fully supported the prosecution case and the one witness was given-up by the prosecution. In the present case five accused are involved. Two of them have been arrested and three accused are absconders. He has lastly contended that the case in the trial Court has proceeded as such the applicant is not entitled to the concession of bail.

8. Learned counsel for the State has adopted the arguments advanced by learned counsel for the complainant and has opposed the grant of bail to the applicant.

9. I have considered the arguments, advanced on behalf of the respective parties, perused the record and gone through the case-law cited at the bar. The applicant is nominated in the F.I.R. and the recovery of diamond pieces is not disputed by the learned counsel for the applicant. The police personnel are as good witnesses as the other persons and their evidence in absence of private mashir can be safely relied upon. The delay in lodging the F.I.R. can be thrashed out in view of the circumstances of the case. The authorities relied upon by the learned counsel for the applicant are based on different footings.

10. In these circumstances, I am of the opinion that the learned counsel for the applicant has not been able to make out a case for bail, therefore, by my short order dated 25-1-2006, I had dismissed the bail application with the direction to the trial Court to conclude the trial of the case within a period of four months from the date thereof. Criminal Bail Application No.1058 of 2005 stands disposed of. H.B.T./Z-9/K?????????????????????????????????????????????????????????????????????????????????????? Bail refused.