2015 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through the captioned post- arrest bail application, applicant Babar Gul has impugned order dated 6-12-2013, passed by the Court of learned Sessions Judge, Hyderabad, whereby his earlier bail application was declined.

2. The necessary facts pertaining to the prosecution story are that complainant lodged report regarding murder of an unknown boy on 21-10-2013, against unknown persons, hence the instant FIR.

3. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in this case. He further contended that there is no eye-witness of the offence and FIR was lodged on hearsay information. He submitted that FIR has been lodged with a delay of 18 days, which has not been plausibly explained. He further contended that the main witness Azizuddin was examined before the trial Court, but he has not supported the case of prosecution. He further pointed out that none of the PWs has implicated the present accused regarding the commission of the alleged offence. He further emphasized that applicant is behind the bars for more than 18 months, but prosecution has examined only one witness.

4. Learned D.P.G. has opposed the plea of bail agitated by learned counsel for applicant and contended that during the course of investigation two main witnesses namely Niaz Hussain, Manager of the Security Company and Abdul Rehman, Supervisor of the said Company, were examined but have not been cited as witnesses, but on the contrary their names have been mentioned in Column No.2 of the charge sheet, as such only PW Azizuddin, security guard, in his statement under section 161, Cr.P.C. had stated that accused disclosed to him that he had committed murder of the deceased boy.

5. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties emanate that complainant Inspector Akhtar Hussain Samo lodged FIR on 21-10-2013 regarding the blind murder of an unknown boy occurred on 3-10-2013, but no satisfactory explanation has been furnished in FIR for the delay of 18 hours in its lodgment against unknown assailants. Indeed, the incident is un-witnessed and even the dead body of the deceased was not recovered on the pointation of the applicant. Moreover, security guard Azizuddin being the star witness of prosecution was examined before the learned trial Court on 10-12-2014, but during his evidence he has not implicated the applicant regarding the commission of the alleged offence, as such was declared hostile and during his cross-examination, the state counsel had failed to bring any favourable substance on record. Furthermore, from bare perusal of the statement of remaining PWs recorded under section 161, Cr.P.C. neither the PWs nor mashirs have deposed against the present accused.

6. It is well settled that at bail stage deeper appreciation of evidence cannot be gone into, as it may prejudice case of either party, but only a tentative assessment of the available material is to be made just to find out the clue prima facie connecting the accused with the alleged offence or otherwise. The slightest benefit of doubt even at bail stage, shall be counted in favour of accused. While in the case in hand, no direct iota of evidence has been placed on record regarding the involvement of applicant in the commission of the alleged offence.

7. Considering the above facts and circumstances, further detention of applicant will not serve any useful purpose as prosecution has no any eye witness in the list of witnesses mentioned in the challan and even there is no imminent apprehension of tampering with the prosecution evidence as remaining PWs are police officials. Moreover, applicant is behind the bar for the period of about 18 months but prosecution has examined only one witness, as such bail could not be withheld as a punishment. Consequently, applicant has succeeded to make out his case for enlargement on post-arrest bail on the ground of further inquiry as envisaged under section 497(2), Cr.P.C. Accordingly, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

8. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of trial. SL/B-12/Sindh Application accepted.