IMRAN RASHEED vs The STATE

ORDER

' ZAFAR AHMED RAJPUT, J.---Through instant criminal bail application, applicant/ accused Imran Rasheed son of Rasheed Ahmed seeks post arrest bail in Crime No, 499 of 2010, registered at Police Station Al-Falah, Shah Faisal Town, Karachi, under sections 302/34, P.P.C. His bail application was earlier rejected by the learned Sessions Judge, Karachi-East, vide order dated 09-10-2015, in Sessions Case No, 1643 of 2015.

2. Briefly stated, the facts of the prosecution's case are that on 03.08.2010, at 2230 hours, A.S.I. Zafar lqbal of P.S. Al-Falah, Karachi lodged the above mentioned FIR, on behalf of the State, alleging therein that on 02.08.2010, as per daily diary entry No, 57, one unknown person, at about 2200 hours, informed on phone that dead body of Naseebullah son of Zahoor Khan was lying in front of House No, R/7, Gulshan-e-Qadri Street, who received gun shots. Upon receiving such information, he reached the spot and conducted proceedings under section 174, Cr.P.C. The heirs of the deceased were present at the spot, who informed him that when at about 09:30 p.m. They came out on the sound of gun fire, they saw the dead body of Naseebullah; however, nobody came forward to record his statement and told him that they did not want any action including post mortem and then they took the dead body in the house. Since it was a murder case, cognizable under section 302, P.P.C., the case was registered against the accused whose name and residence was not known. Thereafter, S.I.O. Inspector Muhammad Sabir conducted investigation and prepared memo of site inspection in presence of mushirs, namely, Ikramullah and Nazir Ahmed and recovered five empties of .30 bore and also recorded statements of witnesses under section 161, Cr.P.C., but could not get any clue, it is thereafter he submitted final report on 04.12.2010.

3. It is further case of the prosecution that on 09.06.2015, they received information on phone from police station Mehmoodabad that the applicant/accused Imran Rasheed, who was arrested in Crime No,208/ 2015, under section 23(i)-A, Sindh Arms Act, 2013 disclosed that he had, along with Ejaz Kala and Zafar, committed murder of Naseebullah; hence, he was arrested in the afore- mentioned crime of Police Station Al-Falah.

4. Learned counsel for the applicant/ accused has mainly contended that the applicant is innocent and has falsely been implicated in this case. He has further contended that though the arrest of the applicant has been shown by Mehmoodabad police on 09.06.2015 but it is matter of record that the applicant was arrested on 04.06.2015 at 10:30 p.m. By the CID Police and in this connection; the mother of the applicant had filed C.P. No,D-3293/2015 on 06.06.2015 before this Court. He has also contended that the applicant has already been admitted to bail by the Court of VIth Additional Sessions Judge, Karachi-South in Crime No, 208 of 2015 of Police Station Mehmoodabad, observing the fact that as per prosecution story accused was arrested and one 30 bore pistol with magazine containing 3 alive bullets was recovered from his possession but the contents of the FIR did not show the daily diary entry number under that the police party proceeded on patrolling duty. The learned counsel has maintained that there is no direct or ocular evidence in the case and the accused has been implicated in this blind case only on the basis of his extra-judicial confession before the police, which is not admissible under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 and, therefore, it is a fit case of further inquiry.

5. Conversely, the learned A.P.G. Has opposed this bail application and has maintained that the applicant/accused was arrested in Crime No, 208 of 2015 by the Mehmoodabad Police and from his possession one 30 bore unlicensed pistol containing three live bullets was recovered; thereafter during course of interrogation he confessed his guilt. He has further maintained that the empties recovered from the spot were sent to the ballistic expert and according to his report, two empties out of five were matched as the same were fired from the 30 bore pistol recovered from the possession of the applicant, therefore, sufficient material is available with the prosecution to connect the applicant with commission of offence.

6. I have heard the learned counsel for the applicant/accused, learned A.P.G., and perused the material available on record.

7. It is an admitted position that the murder was blind and the applicant/ accused has not been named in FIR. He was shown arrested on 09.06.2015 in FIR No,208/ 2015, registered under section 23(i)-A, Sindh Arms Act, 2013 at Police Station Mehmoodabad, but it is matter of record that his mother Mst. Badr-un-Nisa had already filed a Constitutional Petition bearing No, 3293 of 2015 before this Court on 06.06.2015, alleging therein that his son i.e, the applicant/accused was taken away by the CID Police on 04.06.2015 from his bakery.

' Applicant/accused prima facie seemed to have been detained before he was alleged to have been arrested when the recovery of pistol, with three live bullets was made.

8. The only material prosecution has against the applicant/ accused to connect him with commission of alleged offence is his extra-judicial confession and recovery of the pistol from his possession, allegedly used in commission of murder of deceased. Empties recovered from the spot remained with the police for about four years and ten months and were sent to Forensic Science Laboratory after recovery of crime weapon/ pistol from the possession of applicant/accused, possibility of the recoveries being fake cannot be ruled out in circumstances. Even otherwise the evidence prosecution has against the applicant/ accused i.e, extra-judicial confession, is not admissible under Articles 38 and 39 of the Qanun-e-Shahadat, 1984 and the recovery of pistol from the possession of applicant/ accused after four years and ten months of the alleged occurrence is of very weak nature and required corroboration from a source of unimpeachable character. Under the circumstances, the case of applicant/accused falls within the ambit of further inquiry as envisaged in subsection (2) of section 497, Cr.P.C. I, therefore, admit him to bail, subject to furnishing solvent surety in the sum of Rs,2,00,000/- and P.R. Bond in like amount to the satisfaction of the trial Court.

9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits and if applicant in any manner tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.

' The instant Criminal Bail Application stands disposed of.