TALIB HUSSAIN Versus STATE
ORDER
1. Bail has been sought in Crime No.66 of 1996 registered with Police Station Sher Shah, Karachi under section 302/34, P.P.C.
2. Allegations, stated in nutshell, as per F.I.R. lodged on 20-5-1996 by complainant Mst. Shehnaz Qadir are that she and her younger sister Mst. Nida Mumtaz were married to their cousins namely Talib Hussain (applicant) and Haji Muhammad respectively. The "going away" of her sister was deferred whereas, after marriage she (complainant) came to stay in the house of her husband in Tehsil Mian Channo where her husband and his in-laws meted out to her a very bad treatment due to which she came back to Karachi, gave birth to a female child and joined the service as a Nurse for their livelihood. She stated that on account of aforesaid circumstances her parents were not willing to allow the "going away" of her younger sister. Her husband, about 13/14 days prior to the incident arrived at Karachi to settle the dispute and started residing with them. It is alleged that the day of incident her brother-in-law who had taken her sister Mst. Nida Mumtaz in marriage also arrived and made a demand to the parents of the complainant for "going away" of his wife and on refusal both of them got infuriated. After talks all the inmates went to their beds, however, at about 1-30 a.m. on an alarm raised by her parents she saw that her brother- in-law Haji Muhammad was giving Toka blows to her parents and her husband was in an anger, was raising voices and was giving kicks and fists blows to her parents that they would do away with them and settle their accounts. It is stated that later on both the culprits left the house and her parents succumbed to the injuries.
3. Contention of learned counsel for the applicant is that the applicant was confined in the jail on 3-6-1996 and since then he continued to remain in jail without any delay in conclusion of trial attributable to him. He stated that the applicant is neither a previous convict nor a dangerous, desperate and hardened criminal and also that he has not indulged in any kind of terrorism. He further expressed that the applicant is not involved in any other criminal case. His further contention is that the co-accused namely his brother Haji Muhammad against whom the allegations are that he inflicted upon the parents of the complainant Toka injuries has already been released on bail on the statutory ground of delay vide order dated 11-3-2000 passed by the trial Court whereas the applicant to whom a lesser role is assigned is languishing in the jail for more than two years. He has submitted that even on the ground of rule of consistency the applicant is entitled to the grant of bail certified true copy of the bail order dated 14-3-2000, certified copies of police as well as jail reports and case diaries have been submitted by the applicant on record. He has referred to case laws reported in 1976 SCMR 171 (Sardar Khan v. The State), 1978 SCMR 357 (Bisharat Hussain v. Ghulam Hussain), 1980 SCMR 142 (Abdul Salam v. The State), 1982 SCMR 909 (Abdul Sattar and others), 1983 SCMR 124 (Khadim Hussain v. The State), 1986 PCr.LJ 1496 (Nazir Ahmad Zia and others v. The State), 1998 PCr.LJ 1351 (Mujeeb Ahmed v. The State), and 1998 PCr.LJ 358 (Supreme Court Azad Jammu and Kashmir).
4. Though the learned Asstt. A.-G. has not disputed the factual aspect of the matter, he has opposed grant of bail to the applicant on the ground that in case the applicant is released on bail he shall cause harm to his wife and there is possibility that he would tamper with the evidence of the witnesses not yet examined.
5. I have given my anxious consideration to the arguments of both the learned counsel and with their assistance have examined the material available on record. I have also referred to the case-laws relied upon by the learned counsel for the applicant. Admittedly the applicant is in the custody since 3-6-1996. Police report as well as the report of Superintendent Central Prison, Karachi indicate that he is only involved in the instant case. There is nothing on record that the applicant is a dangerous, desperate or hardened criminal or he has indulged in any kind of terrorism. With the assistance of both the learned counsel, I have gone through the bulk of case diaries for more than four years i.e. 3-6-1996 to 15-1-2001. I do not find that delay in concluding the trial is attributable to the applicant. It appears that co-accused Haji Muhammad to whom the injuries with Toka are attributable has already been granted bail vide order dated 14-3-2000 passed by the 1st Additional District Judge/Sessions Judge Karachi West. Impugned order shows that learned D.D.A. has raised no objection to the grant of bail to the applicant on statutory ground but the Trial Court seems to have been carried away by an application moved by the complainant in which she has expressed her apprehension that if the applicant is released she is likely to be murdered. Learned Trial Court has also observed that there is possibility that the applicant would tamper with the evidence of the rest of witnesses. It is apparent that on the day of incident, the applicant is alleged to have only caused kicks and fists blows to the deceased parents of the complainant. On this day he has neither alleged to have used any sharp-cutting weapon nor 'fire-arm to injure the parents of the complainant. In the heated moments of his anger he did not make any move to inflict any injury on the person of the complainant who is said to be present on the scene of occurrence. There is nothing on record that there is any substance in the apprehension voiced by the complainant. Learned Trial Court has also not cited any instance nor has referred to any material to show that the applicant endeavoured in the past to tamper with the evidence or for that matter any reason has been assigned to find favour with the Trial Court to arrive at that conclusion.
6. In my view the applicant has earned a statutory right and is entitled to be released on bail having already remained in jail for more than four years. His accomplice who is none else than own brother and to whom Toka blows are attributed has already been released on bail on the ground of statutory delay. In the circumstances, I do not find myself inclined to withhold the concession of bail. Accordingly, I admit the applicant to bail who shall be released on his furnishing surety in the sum of Rs. 2,00,000 and P.R. Bond in the like amount to the satisfaction of the Trial, Court.
7. H.B.T./T-16/K Bail granted.