2010 P Cr (PLP)

AHMED ALI M. SHAIKH, J.

Through this Criminal Miscellaneous Application applicant Ummar Khan Durrani, who is one of the legal heirs of the deceased Ayub Khan, seeks cancellation of bail granted to respondent No.1 in Crime No.345 of 2007 of P.S. Darakhshan for offence under section 302, P.P.C. The relevant facts of the prosecution case are that on 14-9-2007 at about 1803 hours SIP Ghulam Yasin lodged a repot at P.S. Darakhshan stating therein that on same day he received message from 15 following which he went to Bungalow situated in Clifton where he found a dead body of a person and got shifted him to Jinnah Hospital wherein his autopsy was carried out by MLO Dr. Jagdesh Kumar who issued death certificate and opined that the death of deceased was caused due to bullet injury in his head. He further stated that the place of incident was a bungalow situated in Khayaban-e-Shamshir, DHA, Karachi. where he met one Dawood who disclosed that on 13-9-2007 at 7-00 p.m. he along with his family went to a party and when he came back Chowkidar of the bungalow informed him that Humayun Khan along with another person was sitting in drawing room in the lower portion of the bungalow, therefore, he along with his family went to upper portion of;the house and on 14-9-2007 when he came down he felt a smell coming from lower portion following which he went there and found a dead body was lying there. He called

15. On enquiry Chowkidar told him that Humayun Khan has left the premises. The investigation was carried out and after completion of the investigation challan was submitted before the concerned Court whereby I/O has applied section 319, P.P.C. On 8-10-2007 respondent No.1 was granted bail by learned IInd Additional Sessions Judge, Karachi South, on the ground that section 319, P.P.C. is bailable. Upon a perusal of police file it appears that when legal heirs of the deceased came to know about this unhappy episode they approached. the police authorities for reinvestigation of the case and ultimately the case was reinvestigated by SIP Munawwar Ahmed who after completion of the investigation submitted challan under section 302, P.P.C. before the concerned Court vide Charge Sheet dated 12-8-2008. Per learned counsel for the applicant, respondent Humayun Khan is the real culprit and there is ample evidence against him in the shape of 161, Cr.P.C. statement of P.Ws. as well as medical evidence. Learned A.P.-G. for the State adopted the arguments of learned counsel for the applicant. Conversely, learned counsel for respondent No.1 contended that the prosecution could not collect any piece of evidence to show any nexus of the respondent No. 1 with the alleged occurrence. He further contended that it is yet to be determined whether the case would fall under section 319 or 302, P.P.C. He lastly contended that initially the challan was submitted under section 319, P.P.C. which is bailable one and subsequently after reinvestigation a fresh challan was submitted under section 302, P.P.C. therefore, the case of the respondent No. 1 requires further enquiry. Heard the learned counsel for the parties and perused the material available on record. Upon a perusal of 161, Cr.P.C. statement of P.W. Munawwar Masih it appears that he was driver and driving car of the owners of the bungalow where the alleged incident had taken place. His statement further reveals that on 13-9-2007 while he was present in the bungalow, accused Humayun Khan along with his friend Ayub Khan came there. Both were sitting in the drawing room and were talking with each other where Ayub Khan was demanding money from Humayun Khan. He narrated the details of occurrence in following words. Since the above P.W. at the time of occurrence was serving as driver of Haji Wali Khan, brother of Humayun Khan and residing at bungalow No. 12/2, Khayaban-e-Shamshir, DHA, Karachi, therefore he is the natural witness of the alleged occurrence and he has narrated whatever he saw at the time of occurrence. The medical evidence also corroborates the version of P.W. Munawwar Masih. According to postmortem report deceased had received firearm injury. During subsequent investigation 161, Cr.P.C. statement of P.W. Adam Khan was recorded which reveals that at the time of occurrence he was serving as a house servant of bungalow No.12/2, Khayaban-e-Shamshir, DHA, Karachi. On 13-9-2007, Humayun Khan along with his friend came there. Both sat in the drawing room. On the instruction of Humayun Khan he served juice to them. On 14-9-2007 he woke up at 10-11 a.m. and after breakfast he found that police personnels were present in the bungalow and he came to know that a dead body has been found in the bedroom of Humayun Khan. He further stated that the has seen dead body and identified that he was the same person who came with Humayun Khan on last evening. From the perusal of 161, Cr.P.C. statements of above P.Ws. and postmortem report a prima facie case is made out against the respondent No.

1. Moreover the dead body of deceased Ayub Khan was found in the bedroom of accused Humayun Khan (respondent No. 1). Though in the first challan instead of section 302, P.P.C., I/O. had applied section 319, P.P.C. which is a bailable offence but during subsequent investigation I/O collected ample material against the respondent Humayun Khan and he submitted the challan before the concerned Court under section 302, P.P.C. Though the respondent was granted bail on the ground that section 319, P.P.C. is bailable but subsequently when I/O submitted the challan whereby he has applied the section 302, P.P.C., trial Court had to consider the material collected during reinvestigation but very strangely he allowed the respondent to enjoy the fruit of bail which was granted to him earlier. The legal heires of the deceased approached the trial Court for cancellation of bail, instead of cancelling the bail trial Court enhanced the surety amount from Rs. 75,000 to Rs. 2,00,

000. In the case in hand, the tentative assessment of the prosecution t evidence in the shape of 161, Cr.P.C. statements of the P.Ws. and medical evidence would show reasonable grounds to believe that the respondent No. 1 has committed an offence falls within the purview of section 302, P.P.C. Mere application of section 319, P.P.C. in earlier charge sheet, submitted by the police, does not restrict the Court from not going beyond the said provision of law. If justice so demands, it is the duty of the Court to proceed independently on the basis of the facts of the case. Apparently the case falls within the purview of section 302, P.P.C. and not section 319, P.P.C. For the foregoing reasons, I am of the considered view that the learned IInd Additional Sessions Judge, Karachi South without comprehending the law properly and exercising the jurisdiction judicially extended the concession of bail to respondent No.1 Humayun Khan, therefore, I allow this Criminal Miscellaneous Application and cancel the bail granted to respondent No.1 Humayun Khan vide order dated 8-10-2007, passed by learned IInd Additional Sessions Judge, Karachi South. Before announcement of this order respondent No.1 Humayun Khan slipped away though he as well as his counsel was directed to remain in Court. Since the accused/respondent No.1 Humayun Khan has slipped away, hence the trial Court is directed to initiate appropriate proceedings against the respondent No.1 and his surety according to law. H.B.T./U-4/K Bail cancelled.