Applicant 'Shahid Ali is facing trial for an offence under sections 302, 324, 436/34, P.P.C. arising out of F.I.R. No,155 of 2002 recorded on 30-5-2002 at Police Station Peerabad, District Karachi West.
2. According to FIR., the incident had taken place on 5-3-2001 that is to say more than 14 months before registering of the case. As per FIR., the complainant Sabir All who is a rickshaw driver owned a bakery at Plot No,42-H, Qasba Colony run by his nephew Arshad and Boota on contract basis. On this plot he had dispute with applicant Shahid since long and they indulged in litigation also. On the day of occurrence the complainant was sleeping in his house while Arshad, his family members including Iftikhar and daughter-in-law Robing and employee Shabbir were sleeping in the bakery. At about 2-30 or 3-00 a.m. the bakery caught fire in which Arshad, his brother-in-law and daughter Sabah aged about 5/6 years received burns. Sabah died in Abbasi Shaheed Hospital. The bakery was also burnt to ashes. Arshad disclosed to the complainant that during the occurrence he knocked the door opening towards applicant's house, but the latter asked him not to come towards his side and that he would not open the door. The people of neighbour, however, opened the door and got them out. It is alleged in the F.I.R. that 10/15 days prior to the occurrence applicant Shahid and co-accused Suleman appeared in the bakery and asked for possession of the bakery after obtaining some money or else their person and property would be put to loss. The complainant expressed in the F.I.R. that the incident must have been caused by applicant, Rashid, Zahid and suleman, themselves, or through somebody else.
3. The applicant was arrested on 5-7-2002. Earlier, co-accused Suleman was arrested on 15-6- 2002 and he was granted bail by this Court.
4. I have heard Mr. M. Khalil Dogar learned counsel for applicant, Mr. Habib Ahmed learned A.A.-G. appearing for the State and Mr. Zafar Ahmad Khan, learned counsel for complainant Sabir Ali.
5. The main contentions raised on behalf of the applicant are that the F.I.R. is delayed by 14 months even then only suspicion is shown against the applicant about setting the bakery on fire and there is no direct evidence to connect the applicant with the crime so much so that the statement of injured person recorded under section 161, Cr.P.C. in the first instance did not involve the applicant in any manner. He relied on 1993 PCr.L 2060 (Muhammad Khan v. The State) on the point that suspicion, howsoever strong shall not lead to conviction.
6. Mr. Zafar Ahmad Khan learned counsel for complainant strenuously ventured to make out from the F.I.R. that the applicant by refusing passage to the complainant at the time when the bakery was on fire, committed a brutal act and on account of that act baby Saba died due to suffocation.
He further submitted that the motive is also set forth in the F.I.R. that the applicant had earlier threatened the complainant to vacate the bakery or else he should face dire consequences.
Regarding delay in the F.I.R. he contended that the complainant had at one stage approached the Ombudsman complaining that his case has not been entertained by the Police. Mr. Habib Ahmad learned A.A.-G. submitted that the police had at the earliest taken steps in accordance with law and held the proceedings within the meaning of section 174, Cr.P.C. regarding deceased baby Saba and statement of injured was also recorded under section 161, Cr.P.C. However, he fairly conceded that case would require further enquiry, in view of the fact that there is no direct evidence of setting the baker on fire and since the house of applicant was closely adjacent to the bakery his life and property was equally at stakes.
7. I have carefully considered all these contentions. The delay in lodging of the F.I.R. is the most outstanding feature in the case. The contention that the complainant approached the Ombudsman does also not carry much force as the application to Ombudsman was made on 14- 11-2001 that is to say after 8 months of the occurrence. Second contention that the police did not take interest in the matter has also no legs to stand as at the earliest stage the injured had stated in his section 161, Cr.P.C. statement recorded on 5-3-2001 that when the bakery caught fire he tried to get out through roof and received electric shock in that course. He B stated in categorical terms that the bakery had perhaps caught fire because of electric short circuit. He had expressed that they had no enmity with anyone and did not suspect anybody to have committed any criminal mischief.
8. In view of the above circumstances, the drawbacks pointed out about lack of direct evidence and the hazard in consequence of fire being faced by applicant with equal magnitude are manifest. These circumstances coupled with delay in lodging the F.I.R. and the earlier statement of injured recorded under section 161, Cr.P.C. support the bail plea. The case would as such would fall within the ambit of further inquiry.
9. In the circumstances enumerated above, the bail plea is accepted and the application is allowed. The applicant be released on furnishing surety in the sum of Rs,3,00,000 and executing PR bond in the like amount to the satisfaction of the trial Court.