2009 PLP 637 (MLD)

FARRUKH ZIA G. SHAIKH, J.

Applicant Irshad Ali son of Nazar Muhammad by caste Bhatti has filed this application under sections 497/498, Cr.P.C. seeking post arrest bail, who is wanted in F.I.R. Crime No.42 of 2008 registered at Police Station, Sorah for an offence under section 302-P.P.C. In brief, the facts are that, the case was initiated on an F.I.R. lodged at the instance of complainant Rustam Ali son of Muhammad Hussain by caste Rajput Bhatti on 6-6-2008 alleging therein that his sister Mst. Rizwana aged about 20/21 years was married with Irshad Ali (Applicant). On 5-6-2008 complainant and his brother Rashid Mehmood went to meet with their sister at the house of Irshad Ali, where they stayed for the night. On the next day viz 6-6-2008 in the morning, they asked Irsand Ali to leave their sister with them and Irshad Ali replied them to wait for some time. When in the evening time at about 5-00 p.m. they were present in the house along with their sister, where Anwar son of Ghulam Sarwar Bhatti also came and in his presence the complainant asked Irshad Ali for permission of his sister to go with them, on which Irshad Ali annoyed and his sister went in the room of the house and Irshad Ali also went behind her into room and the complainant party also went behind them and in the meantime, Irshad Ali took the gun and made straight fire upon Mst. Rizwana, which hit on her head and she fell down and her brain matter came out and died on the spot. Hence F.I.R. was lodged. Mr. Maqbool Ahmed Awan, learned counsel appearing on behalf of the applicant, in support of the bail application, has contended that the applicant is innocent and has falsely been implicated in the ease due to enmity. He has also contended that deceased Mst. Rizwana had contracted her free will marriage with applicant, on which, complainant party was annoyed, in such a situation, it is not possible that the complainant along with his brother Rashid Mahmood went to meet with Mst. Rizwana at the house of applicant. He has further contended that it cannot be believed that applicant will murder his wife as both have contracted love marriage, but on the contrary the complainant party has committed the murder of Mst. Rizwana due to the annoyance over her Court marriage with the present applicant. He has further contended that P.W. Anwar, who is said to be eye-witness of the incident, in his 164, Cr.P.C. statement recorded before the Civil Judge and Judicial Magistrate on 20-6-2008, has exonerated the applicant from the commission of offence and has stated that his name in the F.I.R, has been given falsely as he has not seen the incident, and now there remains only the version of complainant and his brother Rashid Mehmood. In the last he has contended that all these grounds taken above, have created serious doubt in the case of the prosecution calling for further probe into the guilt of the applicant under subsection (2) of section 497, Cr.P.C. In support of the contention, he has relied upon Allah Bakhsh v. Nazar Hussain Shah and another (1979 SCMR 137), Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241) and Payoo Khan and another v. The State and another (2004 PCr.LJ 869). On the other hand, Mr. Amanullah G. Malik, learned counsel appearing on behalf of the complainant, has bitterly opposed the grant of bail to the applicant by arguing that prosecution is in possession of adequate evidence to connect the applicant with the commission of crime and the material placed on record clearly tends to suggest that there are reasonable grounds to believe that the applicant is guilty of the offence, with which, he is charged, falls within the Prohibitory Clause of section 497(1), Cr.P.C., as the name of applicant transpires in the F.I.R, which was lodged promptly, in which, the prosecution has attributed specific role of firing to the applicant from his gun at his wife Mst. Rizwana (deceased); that the version of complainant as given in the F.I.R., is fully supported by the P.Ws., that there appears no reasonable ground to believe that the applicant is falsely involved in the present case, hence the applicant does not deserve concession of bail. In support of above contention, he has relied upon Waris Khan v. The State (2001 SCMR 387), Mureed and 2 others v. The State (2003 SCMR 64), Nazir Ahmad v. Muhammad Ismail and another (2004 SCMR 1160) and Ehsan Akbar v. The State and 2 others (2007 SCMR 482). Mr. Agha Ather Hussani, learned Assistant Advocate-General Sindh appearing on behalf of the State, has strongly opposed this application and has adopted the same arguments as advanced by Mr. Amanullah G. Malik advocate appearing on behalf of the complainant. I have heard the arguments of Mr. Maqbool Ahmed Awan, learned counsel appearing for the applicant, Mr. Amanullah G. Malik, learned counsel appearing on behalf of the complainant and Mr. Agha Ather Hussain, learned Assistant Advocate-General Sindh, appearing on behalf of the State at length and with their assistance I have also scanned the material available on record very carefully. In support of the bail application, learned counsel appearing for the applicant, has filed a copy of free will affidavit sworn by Mst. Rizwana (deceased), which clearly indicates that, she had contracted free will marriage with applicant Irshad Ali by leaving the parents' house and on such marriage her parents became annoyed with Mst. Rizwana as well as her husband applicant Irshad Ali. Such copy of free will affidavit of Mst. Rizwana is available on record filed along with the statement duly signed by the learned counsel appearing for the applicant. Moreover, P.W. Anwar, who, according to the contents of the F.I.R, is said to be the eye witness of the incident, in his statement under section 164, Cr.P.C. recorded on 20-6-2008 before the Civil Judge and Judicial Magistrate, Nara, has exonerated the present applicant and has further stated in clear words that he has not seen the incident and his name has falsely been mentioned in the F.I.R. by the complainant, which has created a serious doubt in the case. The case-law referred to above by the learned counsel for the applicant, fully support the case of the applicant. In view of the circumstances noticed above the applicant's case falls under subsection (2) of section 497, Cr.P.C. inasmuch as further enquiry is necessary for determining the guilt of the applicant. This application is, therefore, allowed and the applicant is admitted to bail subject to furnishing two sureties in the sum of Rs.300,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. The bail application stands disposed of. H.B.T./I-34/K Bail granted.