2002 P Cr (PLP)

Mukhtiar Ahmad Khanzada for the State. Dates of hearing: 22nd and 29th November, 2001. Brief facts of the matter per the F.I.R. No.59 of 2000 lodged with Police Station Rukkan, District Dadu on 20‑7‑2000 are that the complainant had given his daughter Mst. Rahat Khatoon in marriage to his maternal‑nephew Mumtaz Ali son of Imamuddin and in exchange he had got married Mst. Zulekha daughter of Sardar, the latter being nephew of Mumtaz Ali. Due to differences Mumtaz had announced that the complainant's son Shamsuddin would be killed and Mst. Zulekha would be recovered and given in marriage to some other person. One day the complainant's son Shamsuddin went to the house of his father‑in- law Sardar and Mumtaz but did not return. The complainant then went to the village of Sardar and Mumtaz and inquired about Shamsuddin from them. He was informed that Shamsuddin had come to meet with them but had gone with Mumtaz back to his own house. The complainant then started searching for his son and about a week prior to lodging of the F.I.R. one Niaz the co‑villager of Mumtaz informed the complainant that Mumtaz had offered the hand of Zulekha to him after the murder of Shamsuddin but Niaz had refused. A few days ago Mumtaz had informed Niaz that Shamsuddin had been murdered and his dead body was disposed of. The complainant thereafter came to know that Shamsuddin had been murdered by Mumtaz and Sardar, Niaz and Shahpasand as well as Ali Murad who had buried the dead body in some unknown place. Hence the complaint. On the basis of the foregoing facts learned counsel for the applicant has submitted that prima facie the evidence so far available against the applicant is merely hearsay as at this stage it is totally uncorroborated from any source. In this connection he has referred to police statements of Niaz Hussain, Roshan and Ayub who have implicated Mumtaz. Further learned counsel has submitted that Sardar, Ali Murad, Niaz Hussain and Shahpasand have been let off by the police under section 161, Cr.P.C. Secondly the dead body of deceased Shamsuddin was never recovered and even nothing has been recovered from the applicant/accused. Learned counsel has also relied upon a public notice appearing in newspaper daily Mehran, dated 6‑4‑2000 whereby the complainant had warned the public that Shamsuddin is a mad person and had left his house on 31‑3‑2000 and hence the complainant would not be responsible for any act done by him. Consequently, learned counsel has prayed that the applicant be enlarged on bail. He has relied upon the following case‑law:‑‑ Khurshid Ahmed v. Kabool Ahmed PLD 1964 (W.P.) Kar. 356 and Abdul Saleem v. The State 1998 SCMR 1578. On the other hand learned State Counsel has opposed the grant of bail on the ground that the prohibitory clause was attracted to the facts of the present case and that all the prosecution witnesses had deposed against the applicant/accused. I have heard both the learned counsel. Admittedly there is a matrimonial enmity between the parties and it also appears that perhaps the deceased Shamsuddin had lost his mental balance and from time to time he was in a habit of leaving the complainant's house for long periods, as result of which the complainant had caused a public notice to be published about four months prior to the date of the incident. Further, the only piece of evidence gathered by the prosecution is the statement of the complainant and other prosecution witnesses to the effect that the applicant had announced the murder of the deceased which in my opinion, is merely hearsay without independent corroboration. Hence at this stage the case is one of further inquiry particularly since the dead body of Shamsuddin was never recovered. Above are the reasons for the short order passed by myself earlier whereby the applicant was enlarged on bail. H.B.T./M‑293/K Bail granted.