MANZOOR HUSSAIN Versus State

ORDER

1. AGHA RAFIQ AHMED KHAN, J .---This common order will dispose of above two bail before arrest applications as they arise out of same Crime No.53 of 2006.

2. Brief facts leading to these applications are that on 1-4-2006 at 1100 hours case was registered at Qasimabad Police Station under section 302/34, P.P.C. on the basis of F.I.R. lodged by complainant Sikandar Ali. In his report he stated as under:--

3. "... I have to report that I live at the above mentioned address at Karachi and I am Sub-Registrar of Member Board of Revenue. My daughter Mst. Sajida aged about 26 years was married to Muhammad Adnan son of late Ibrahim Soomro about seven years back. Adnan entered into an agreement for purchase of a bungalow in Block 9, Clifton Karachi and the final payment has to be made in April. Difference was going on for the last two months or so about the said purchase as it is alleged that accused was refusing to pay the final payment of the said property and for the last 15 days, he has been issuing threats to my daughter repeatedly to murder her (for persistence to make the final payment of property). She repeatedly complained to me about Adnan and he was persuaded by me for the purchase of the Bungalow, but he was not ready to listen to so. So I along with my brother Shabbir Ahmed and nephew Waqar Ahmed went to the above mentioned house of Adnan and tried to get the matter patched up. We reached there at 9-00 p.m. when Adnan called 'his cousin Mazhar alias Gudu and Manzoor alias Papu both sons of Abdul Rahim. We tried to persuade him but because of pressure of his cousins, he did not listen to us. I along with my brother Shabbir Ahmed and nephew Waqqar Ahmed were sitting in the drawing room when at about 3-00 a.m. we heard cries of my daughter Sajida so I along with my brother and nephew went running in that direction and we saw that Manzoor Ali alias Papu and Mazhar alias Guddu who were armed with weapons and Muhammad Adnan kept revolver On her chest and fired there so my daughter raised cries and fell down and all the three threatened us not to go near them and threw pistol there and they made their escape good from the house. We took out daughter in serious condition to Civil Hospital where doctors declared her to be dead so we again brought her dead body to the house of Adnan and informed Madadgar Police Phone No.15 so the Qasimabad Police came to the Bungalow and complied to the formalities of law about the inspection of place and took the possession of revolver, which was thrown by Adnan while the accused made their escape good. The revolver contained bullets. Police took the dead body to hospital for post-mortem, dead body was handed over to me and I lodge the report that the above mentioned accused persons armed themselves and have caused the murder of my daughter. Investigation be conducted...."

4. Police during investigation released accused Manzoor Hussian under section 496, Cr.P.C. and in the challan mentioned his name in Column 2. Complainant filed application in the trial Court for issuance of NBWs against the accused and learned 1st Additional Sessions Judge, Hyderabad vide order dated 3-7-2006 issued NBWs against accused Manzoor Hussian holding that police had illegally released him on bail.

5. Applicant/accused Mazhar Hussain filed bail before arrest application and the same was dismissed by 1st Additional Sessions Judge, Hyderabad vide order dated 12-5-2006. Both the applicants/accused thereafter filed their bail before arrest applications in this Court and interim pre-arrest bail was granted to accused Mazhar Hussian on 14-7-2006 and accused Manzoor Hussian on 29-8-2006.

6. Mr. Syed Madad Ali Shah, Advocate for applicants has contended that they have been falsely involved in this case with mala fide intention. F.I.R. was lodged with delay of about 08 hours by the complainant who was not present at the time of occurrence. The present applicants have not been attributed any role of firing upon the deceased. He further pointed out some discrepancies in the time of post-mortem of the deceased and her time of death. According to him F.I.R. was lodged after due deliberations and the present applicants were involved with mala fide intention. According to him there are contradictions in the F.I.R. and 164, Cr.P.C. statements of the witnesses also. He has relied on (1) Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539; (2) Fakir Babar Khan v. The State 2007 PCr.LJ 352; (3) Darya Khan and others v. The State 2006 MLD 1958; (4) Attaullah and 3 others v. The State and another 1999 SCMR 1320 and (5) Faraz Akram v. The State 1999 SCMR 1360 respectively.

7. Mr. Mehmood Alam Abbasi, Advocate for complainant has strongly opposed the confirmation of bail on the ground that names of the applicants/accused appear in F.I.R. and no mala fide on the part of complainant has been established. However, Mr. Anwar H. Ansari, State Counsel has no objection for confirmation of bail.

8. I have given full consideration to the arguments advanced by learned advocates and case law relied on by Advocate for applicants.

9. In my humble view, the facts and circumstances mentioned in the above case-law are distinguishable from the facts of the present crime. Names of both the applicants/accused appear in F.I.R. They were armed with pistol along with main accused namely Adnan who is said to have committed the murder of his wife Mst. Sajida. Statements of two eye-witnesses namely Shabir Ahmed and Waqar Ahmed have been recorded under section 164, Cr.P.C. in presence of co-accused Adnan. They have given full account of the incident in their statements. Accordingly to them both the present applicants/accused were armed with pistols and were accompanying main accused Adnan in committing this heinous crime. P.W. Waqar has stated that the present applicants who were armed with pistols threatened the witnesses and thereafter left the wardat.

10. Section 34, P.P.C. is very much attracted in the facts of this case. The present applicants as per evidence had facilitated the main accused in committing the above crime therefore, bail before arrest should not be granted to them in ordinary circumstances. The applicants have failed to establish the main ingredients of grant of bail before arrest at this stage as it can not be said that they have been falsely involved with mala fide intention in this case.

11. For these reasons. I am of the considered opinion that the applicants/accused are not entitled for bail before arrest therefore, both the applications for bail before arrest are dismissed. Interim pre-arrest bail already granted to the applicants are re-called.

12. N.H.Q./M-191/K Applications dismissed.