2018 PLP 120 (YLRN)

AFTAB AHMED GORAR, J.

By this order I intend to dispose of instant Criminal Bail Application filed by the Applicant Mohammad Shoaib son of Mohammad Ramzan after rejection of his bail application in Sessions Case No.997/2016 vide order dated 16.01.2017 passed by the IV-Additional Sessions Judge, Karachi-East.

2. The brief facts as narrated in the FIR are that accused persons committed the murder of daughter of the complainant and robbed valueable articles from their house including jewellery and mobile phones.

3. Learned Counsel for the Applicant contended that the Applicant/ accused is innocent and has falsely been implicated in the instant case by the complainant with mala fide intention and ulterior motives. He further contends that neither the name of the applicant is mentioned in the FIR nor any role has been assigned to him in all over the prosecution case. Learned counsel for the applicant further contends that case of the applicant requires further inquiry as at the time of incident the applicant was at Bahawalpur and CDR of his cell No.0300-2487716 and 0306-8707180 are also showing his presence at Bahawalpur, therefore, at this stage he is liable to be released on bail. He further contends that Muhammad Kamran Ahmed Chairman UC-78 Tehsil Yazman, District Bahawalpur has verified that on the day of incident applicant was with him. He also contends that Chaudhary Mohammad Sarwar Numbardar of Chakk No.15/DNB, Yazman has also verified that applicant was available in the locality at Bahawalpur at the time and on the day of incident. Learned counsel for the applicant further contends that co-accused Yousif Ali son of Muhammad Tufail has been granted bail from the trial court on 22.10.2016 on the ground of plea of alibi that at the time of offence said accused was on his duty, hence rule of consistency is very much applicable and applicant is also entitled for grant of bail on such ground. Learned counsel further contends that in all the prosecution story no satisfactory evidence is available on record to connect the applicant/accused with commission of the offence, hence his case is of further inquiry. He has relied upon the case of Wazir Khan v. The State reported in PLD 2008 Peshawar 42, the case of Noor Samand v. The State reported in 2006 YLR 2448, the case of Muhammad Imran alias Mani and another v. The State reported in 2013 YLR 701, the case of Faqir Hussain v. Asad Ali Khan and another reported 2003 PCr.LJ 518 and the case of Muhammad Daud and another v. The State and another reported in 2008 SCMR 173.

4. On the other hand learned counsel for the complainant opposes the grant of bail to the applicant as he is involved in commission of heinous offence wherein a lady has been brutally murdered and valuable articles were robbed from their house. He further submits that the applicant was identified by the witness in identification parade and robbed mobile phone was also recovered from his possession. He further submits that the case of the applicant falls under the prohibitory clause of section 497, Cr.P.C. and he is not entitled for any concession of bail. He has relied upon the case of Ayaz Ali and others v. The State reported in 2001 PCr.LJ 2016.

5. Learned APG for the state adopts the arguments advanced by the learned counsel for the complainant and submits that the applicant is not entitled for grant of bail as sufficient material is available on record which prima facie connects him in commission of a heinous offence of brutal murder.

6. I have heard Mr. Moula Bux Bhutto counsel for the applicant, Mr. Abid Akram advocate for complainant, Ms. Seema Zaidi, APG for the State and perused the material available on record as well as case laws with their assistance

7. A perusal of record reflects that at the time of arrest of the applicant robbed Samsung mobile phone was recovered from his possession, which was identified by the brother of the deceased to be of his deceased sister. After his arrest identification parade of the applicant was held through PW Muhammad Ali, who correctly identified the applicant during identification parade and stated that on 20.10.2015 at about 9:30 the accused was coming from back door of the house of Chaudhry Akhtar at PIB Colony, which is in corroboration with the statement of said PW Muhammad Ali recorded under section 161, Cr.P.C. wherein he has stated that he has seen the accused while escaping from back door of the house of the complainant.

8. So far as the contention of the learned counsel for the applicant that on the day of incident the applicant was present at Bahawalpur is concerned two certificates (one of UC Chairman and one of Numbardar) have been produced to show his presence at Bahawalpur but a perusal of those certificate shows that both the certificates have not been written on letter-head of both the authors, same are written on plain papers and even both the certificates does not bear the issuance date or any number, which challenge their genuineness and appears to be vague and cannot be relied upon. So far as the contention of the learned counsel for the applicant that CDR of cell phone of applicant bearing No.0300-2487716 and 0306-8707180 is showing his presence at Bahawalpur is concerned, said report should be about presence of mobile phones at Bahawalpur but it does not reflects that the said mobile phone were in possession of the applicant. It is a usual practice that the female members of family take mobile sim in the name of male family member and it is possible that the mobile phone of said numbers would be in possession of any of family member of the applicant therefore, such piece of evidence is not sufficient to enlarge the applicant on bail. So far the contention of learned counsel for the applicant that the co-accused has been granted bail on the ground of plea of alibi therefore, the applicant is entitled for grant of bail on the rule of consistency is concerned, in my humble opinion is devoid of any force for the simple reason that in criminal administration of justice, the case of each and every accused is different from the case of co-accused and it could not be said that the case of one accused is identical to the case of the other accused. In this case sufficient material is available against the applicant, which prima facie connects him in commission of the offence.

9. Any overt act/heinous offence, like the one in hand are not tolerable and in case, if such heinous offences are tolerated it would tantamount to grant a license to the criminals to commit the murder of the innocent persons and such notorious and brutal act of the accused must be checked at the very initial stage to curtail them, so that the confidence of the public in courts may not be shaken.

10. The cases cited by the learned Counsel for the Applicant are distinguishable from the facts and circumstances and are not applicable to the present case.

11. For the foregoing reasons, I do not find any reason to interfere in the impugned order dated 16.01.2017 passed by the learned IV-Additional Sessions Judge, Karachi-East, hence the bail application is liable to be dismiss. Consequently, instant bail application is hereby dismissed being devoid of any merit.

12. The observations made are of tentative nature and the Trial Court shall not be influenced by any of such observations. WA/M-101/Sindh Bail refused.