SHER ALI Versus State
ORDER
AFTAB AHMED GORAR, J.--- The applicant, who is booked in case Crime No.11/2022 registered with Police Station Malir Cantt., Karachi under sections 365, 302, 34, P.P.C., assailed the order dated 23.02.2022 passed by the learned 1st Additional Sessions Judge/MCTC, Karachi (Malir) whereby the bail application of the applicant was dismissed.
2. Learned counsel for the applicant/accused has contended that the applicant is innocent and has falsely been implicated in this case. He also contended that the incident is unseen and is based totally on hearsay evidence. He further contended that name of the applicant is not mentioned in the FIR nor any specific role of abduction or murder of deceased has been assigned to the applicant. He also contended that there is four days delay in lodging the FIR. He submitted that the applicant/accused presumed to be innocent till he is proved to be guilty the ultimate conviction and incarceration of guilty person can repair the wrong caused by mistaken relief of bail granted to him. He therefore, prays that the case of applicant is of further inquiry and as such he is entitled for bail.
4(sic.) Learned counsel for the complainant opposed the bail application and submitted that there is sufficient material on record which prima facie connects the applicant with the offence. He submitted that the independent/chance witnesses of the case namely PW Awais Rehman as well as Bilal Ahmed in their respective statements recorded under section 164, Cr.P.C. stated that they have last seen the deceased with the applicant/accused persons. He further submitted that an insurance amount after death of father of the complainant was taken by the accused party for the purpose of investment and later on in lieu of some of the amount the accused party had handed over two cars including a Civic car bearing registration No.AMU-576 of which no record was found in Excise Department hence motive behind murder of the deceased by the accused party could not be ruled out. He also submitted that the civic car on which deceased was murdered was also recovered on the pointation of applicant in which blood stains and one number plate was recovered. He has submitted that CDR report of the applicant and accused are available on record which match with each other. All the remaining accused persons are absconding and had they been innocent, they must have appeared before the Hon'ble Court to show their bona fide. He also added that the grounds for bail taken by the learned Counsel for the applicant are of deeper appreciation of evidence which are not permissible at bail stage. He further contended that since the applicant is prima facie involved in the instant case, which is a heinous crime of kidnaping and murder therefore, the applicant is not entitled for concession of bail.
5. Learned Additional Prosecutor General adopted the arguments of learned Counsel for the complainant and fully supported the impugned order. He opposed the bail application and submitted that the applicant is last seen with the deceased. He further contended that since the applicant is involved in a case of kidnaping and murder which is punishable for death sentence or life imprisonment, therefore, the applicant is not entitled for concession of bail.
6. I have considered the arguments advanced by the learned counsel for the applicant, learned Counsel for the complainant and learned Additional Prosecutor General, Sindh as well as perused the material available on record.
7. Admittedly the deceased went with the applicant and other accused persons from house as claimed by the complainant and independent witnesses namely PW Awais Rehman as well as Bilal Ahmed in their respective statements recorded under section 164, Cr.P.C. confirmed that they have last seen the deceased with the applicant/accused persons. Neither the learned Counsel for the applicant has rebutted such argument nor has taken any effort to show from any document available on record that if the deceased was with the applicant, the applicant ever dropped him somewhere. Furthermore the contention of learned Counsel for the applicant that CDR of the applicant and deceased is claimed to have matched has also gone unrebutted. Though the mobile phone of the deceased was recovered from one Narain as claimed by the learned Counsel for the applicant but record reveals that the applicant thrown the mobile phone while opening the window of car near a hotel at super highway where an employee of hotel namely Narain seen them and picked the mobile phone. Such factum gets support from the fact that during interrogation the applicant led the police party to the pointed place where he thrown the mobile phone which was then recovered from a hotel employee namely Narain who also identified the applicant to be the person who thrown mobile phone while opening the door of vehicle. It is further on record that the vehicle on which the deceased was murdered was also recovered on the pointation of the applicant with blood stained seat covers, staring and footrest (paidan).
8. Prima facie, the applicant is roped by the circumstances to be the culprit of incident hence under such circumstances, it would not be in the interest of justice to deeply discuss the case in hand. It is settled law that during tentative assessment of the case at bail stage, deeper appreciation of evidence should be avoided. From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima-facie sufficient evidence is available against the accused to connect him with the commission of alleged offence, carrying punishment for death or imprisonment for life. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence. In this respect reliance is being placed on the cases of Saleh Muhammad v. The State (PLD 1986 SC 211) and The State v. The Zubair and 4 others (PLD 1986 SC 163).
9. In view of the above discussion, I am of the firm opinion that the applicant is not entitled for concession of bail. Consequently, the instant bail application stands dismissed.
10. Before parting with this order, it is directed that any observations recorded in this order, being purely tentative in nature, should in no way influence the learned trial Court where the case be decide on its own merits.
SA/S-87/Sindh Bail declined.