NISAR KHAN Versus State
ORDER
OMAR SIAL, J.--- This post arrest bail application has been filed by accused Nisar Khan son of Wali Khan who is charged with offences under sections 302/201/202/34, of the P.P.C. in FIR No.204/2012 dated 22-4-2012 registered at Police Station Quaidabad, Karachi.
2. After hearing the learned counsel for the parties and going through the record I have observed as follows. a) There is no eye-witness to this murder. The last seen evidence is attributed to one Parveen. Parveen, states in her section 161 Cr.P.C. statement that she was in the house when the accused entered, went to the room where the victim was and when he had left she entered the room and saw the victim in a pool of blood. While the incident is said to have occurred on 25-3-2012 and the case registered on 22-4-2012, Parveen's statement was recorded on 18-9-2016. There is no justification for this delay specially when the prosecution case is that Parveen was available. She is also a co-accused in the case and has been granted bail by the trial court. The fact that to date there is no other corroborating evidence may also bring her statement within the ambit of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. Doubt is thus created as to the authenticity and accuracy of her statement, the veracity of which can only be determined after evidence is led. b) The prosecution case is that four rounds were fired by the accused/applicant yet no empties were recovered from the crime scene. The prosecution justification for this absence is that the family members of the victim had cleaned up the crime scene. Be that as it may, the recovery of the alleged crime weapon for years later loses much of its significance as the prosecution is not in possession of any evidence which links the weapon to the murder. The accused/applicant has also been granted bail in the illegal weapon possession case. c) There is a delay of twenty seven days in the filing of the FIR. The prosecution attributes this delay to the fact that initially the family of the victim attempted to hush up the murder. Upon enquiry from the investigating officer of the case, as to how did he get to know about the commission of the murder, he replied that one common citizen named Afraysab had written a letter to the police on 17-4-2012 informing them of the murder. Upon that letter written by Afraysab, he reached the crime scene and was told the whole story by one Abdul Saeed who said that he was told this story by his wife Parveen. When asked to read out the letter written by Afraysab in court, the contents of the letter seemed more of a charge sheet of corruption against the SHO Police Station Quaidabad rather than the accused. If the contents of the letter are to be relied upon, then it appears that the SHO Police Station Quaidabad should have also been behind bars. Abdul Saeed led the police to the grave where the victim had been buried. His statement was not recorded before a magistrate and neither was Saeed made a witness by the police. Instead, he was also charged with the murder. According to the prosecution, Saeed was subsequently acquitted by the trial court in this case under section 265-H(1), Cr.P.C. No attempt was made by the investigating officer to locate the author of the letter or to make him a witness in the case. The delay in lodging the FIR, attempts of the victim's family to cover up the murder and the alleged role of the informant creates doubt in the prosecution story. d) When the body of the victim was exhumed from the grave identified by Saeed for the purposes of a post mortem, no private witnesses were included to witness such exhumation. Also, in this case, apart from the medical experts, there are no private witnesses even though the prosecution claims that the murder was in the know of several family members of the victim. e) The prosecution states that the accused has been an absconder in this case for four years and that several FIRs are registered against him. The prosecution however confirms that the accused has not been convicted in even one of those cases. As regards the abscondence of the accused, the Hon'ble Supreme Court in a case reported at 2016 SCMR 1593 has observed that at times bail is refused to an accused person on the ground that he has remained a proclaimed offender but at the same time it is equally true that such refusal of bail proceeded primarily upon consideration of propriety. Whenever a question of propriety was confronted with a question of right, the latter must prevail. The Hon'ble Supreme Court has also observed in a case reported at 2016 SCMR 676 that abscondence was a circumstance which was taken in a criminal case as corroboration towards the guilt and not as proof of guilt. f) Abdul Saeed and Parveen upon whose sole statements the present accused has been charged and is behind bars are both co-accused in the case and while one has been granted bail, the other has been acquitted.
3. In view of the above reasons, I am of the opinion that this is a case of further enquiry. The accused/applicant is admitted to bail subject to furnishing a solvent surety in the amount of Rs. 500,000 (Rupees five hundred thousand) and two P.R. bonds in the like amount to the satisfaction of the Nazir of this Court.
WA/N-3/Sindh Bail granted.