MUHAMMAD HAMID QURESHI Versus THE STATE

ORDER

1. Applicants have sought bail in Crime No.38 of 2001 registered with Police 'Station Airport under section 302/34, P.P.C.

2. Briefly stated, prosecution story as per F.I.R. lodged on 2-3-2001 at 1435 hours is that the applicants are friends of co-accused Ghulam Muhammad alias Shoaib who brought the deceased Attaullah on 16-2-2001 from Hub Balochistan to House No.C/235, Lane 9, Bhittaibad Karachi where he was murdered and buried by said co-accused Ghulam Muhammad in complicity with his friends namely the applicants Hamid and Azhar, and co-accused Shakeel and Zubair. On 25-2-2001, on a report lodged with Police Station Hub under section 365/406/34, P.P.C., co-accused Ghulam Muhammad was arrested and during interrogation he disclosed the above incident, subsequent whereto, on showing of co-accused Ghulam Muhammad, the dead body of deceased in seven pieces wrapped up in plastic cover was recovered in presence of the Magistrate/Mukhtarkar Hub, Medical Team, A.S.-I. Sobo Khan Mobile Officer of Police Station Airport. Motive.for incident as alleged is that applicants, co-accused Shakeel and Zubair had a dispute with the deceased on a transaction and that a Television/VCR taken by co-accused Ghulam Muhammad from shop of deceased a day before the incident was not returned by him.

3. Contentions of learned counsel for the applicants are that the F.I.R. has been lodged with a delay of about 14 days, no name of eye witness of the incident is cited in F.I.R., there is no evidence against the applicants to connect them with commission of the crime, no recovery has been made from them on 18-5-2001, the Investigating Officer under his report purported to be under section 169 stated that no evidence could be collected against the applicants, during the course of investigation they were found innocent and the Investigating Officer, while forwarding other accused for trial in his report under section 173, did not name the applicants as accused persons rather recommended their release in the case. Learned counsel submits that there is virtually no case against the applicants, they are innocent and have been subjected to suffer rigors of imprisonment for no fault on their part. He prayed that the applicants be released on bail. While concluding his arguments, learned counsel disclosed that he had moved before learned trial Court an application under section 265-K, Cr.P.C. for acquittal of applicants and on its dismissal, a Criminal Miscellaneous Application No.345 of 2001 was filed which stood admitted for regular hearing before this Court.

4. Learned State counsel has submitted that there is no evidence against the applicants and that he has no objection to the grant of bail to the applicants.

5. Investigating Officer, Gohar Zaman, who is present in Court, also discloses that there is no evidence against the applicants; therefore they were not reported against before the Magistrate of Jurisdiction.

6. I have given my anxious consideration to the arguments of both the learned counsel and with their assistance, I have gone through the material placed before me. However, before dilating on the grounds raised for bail, it will be pertinent to state that before the arguments of learned counsel were heard today, by an order dated 22-4-2002, learned trial Court was required to furnish a report to remove an anomaly which occurred-in the circumstances next to follow. Applicants were not shown as accused persons in any column meant for accused person in the final charge-sheet/challan coupled with the fact that learned counsel for applicants raised a plea that at no time by any order, applicants were joined as accused persons yet trial commenced against them. As against above, learned trial Court while rejecting bail application of applicants, inter alia observed in the impugned order as-follows:--

7. "After registration of. the F.I.R. and on the pointation of accused Ghulam Muhammad alias Shoaib, the present accused/applicants were arrested and after inquiry the final challan has been submitted, wherein the accused Muhammad Hamid Qureshi and Muhammad Azhar Qureshi have been exonerated from the above case-crime and submit report under section 169, Cr.P.C. before this Court and the same was declined by this Court vide order dated 16-6-2001. Hence these bail applications."

8. Impugned order further reflected that order dated 16-6-2001 was passed on a police report which did not name the applicants as accused person rather disclosed that no evidence could be collected against them.

9. Learned 1st Additional District and Sessions Judge Malir, Karachi, in response to above orders, has furnished his report which reads as follows:--

10. "With reference to the letter number cited above. I have, the honour to submit report in Sessions Case No.89 of 2001, State v Muhammad Hamid Qureshi and others, F.I.R. No.38 of 2001, under section 302/34, P.P.C. Police Station Airport; Karachi as under:-------

11. In the above case an interim challan received by way of transfer from the Court of honourable Sessions Judge Malir, Karachi on 28-5-2001, showing accused Muhammad Hamid Qureshi. Muhammad Azhar Qureshi, Ghulam Muhammad and Muhammad Yousaf are in judicial custody, while remaining accused persons shown as absconders under section 512, Cr.P.C. On the same day final challan has also received in which police submit report under section 169, Cr.P.C. against the accused Muhammad Hamid Qureshi and Muhammad Azhar Qureshi. The Advocate for the accused filed application under section 265-K, Cr.P.C. for acquittal of accused Muhammad Hamid Qureshi and Muhammad Azhar Qureshi, but the same was rejected by this Court alongwith report under section 169 Cr.P.C. submitted by the police vide this Court order dated 16-6-2001.

12. Since the report under section 169, Cr.P.C. submitted by the police has been rejected by this Court, therefore, these accused nominated in the interim challan treated as final and face to trial photo copy of interim challan and order passed on application under section 265-K, Cr.P.C. as well as on report under section 169, Cr.P.C. are enclosed herewith for kind perusal.

13. Report is submitted for kind perusal".

14. From above, it is clear that the order dated 16-6-2001 (actual date is 18-6-2001 as shown in relevant under) does not relate to joining of the applicants as accused persons in the case but it relates to the rejection of application under section 265-K, Cr.P.C. Said order dated 18-6-2001 has already been challenged by the applicants by way of separate Miscellaneous Application Bearing No.345 of 2001 referred to in foregoing paras. In the circumstances, when prayer of applicants for their acquittal is pending sub judice before this Court in a separate case. I take into account the matters necessary for disposal of bail application, alone.

15. It is an admitted position that no name of eye-witnesses Of incident are mentioned in the F.I.R. which has been lodged with considerable delay; contentions of learned counsel for applicants that there is no evidence against the applicants have neither been denied by Investigating Officer nor by learned State counsel. Also, there is no recovery of any incriminating article from the-applicants. Police have already recommended the case of applicants for their release. Impugned order reveals that before learned trial Court, too, learned DDA has raised no objection to tile grant of bail to the applicants. There is nothing to withhold the concession of bail. In the circumstances, applicants who have remained in Jail since their arrest on 10-3-2001, are entitled to the grant of bail. Accordingly, they are admitted to bail. They shall be released on furnishing surety in the sum of Rs.1,00,000 (Rupees One lac only) each and P.R. in the like amount to the satisfaction of the trial Court.

16. H.B.T./M-494/K Bail granted.