ANWAR ZAHEER JAMALI, J. -- By this criminal petition, moved by one Khajan son of Muhammad Hussain, he has sought leave to appeal against the order dated28.2.2012 in criminal bail application No, 17 of 2012, passed by learned Single Judge in Chambers of the High Court of Sindh, Karachi, whereby his bail application No, 17 of 2012 relating to crime No, 9 of 2008, for offences under sections 302, 201, 120-B, 109, 344, 148, 149 & 118, PPC, Police Station Ahmedpur, District Khairpur, was dismissed.
2. As per contents of said F.I.R. No, 9 of 2008, lodged by complainant Rehmatullah, his niece Mst.
Tasneem wife of Muhammad Ibrahim, on the suspicion of her illicit terms with one Qayyum son of Haji Kanhar, after her return to the family upon holding of Faisla by respectables of the area, was done to death on 6.3.2008 in a brutal manner. Sole accused named in the crime was Muhammad Ibrahim, with role of causing firearm injuries to the deceased with his pistol. During the investigation of crime the petitioner was arrested on 8.11.2008, followed by submission of challan dated 27.11.2008.
Before the Trial Court and the High Court, bail was sought by the petitioner on the rule of consistency, merits as well as Under third proviso to Section 497(1), Cr.P.C, on the ground of statutory delay,. However, looking to the peculiar facts and circumstances and the manner of occurrence, such relief was concurrently declined to the present petitioner.
3. Mr. Shah Jahan Khan, learned ASC for the petitioner vehemently contends that neither the petitioner was nominated as accused in the F.I.R, nor in their Section 164, Cr.P.C, statements, father, mother and brother of deceased Mst. Tasneem recorded on 13.10.2008 any role was attributed to him. Even slightest role of conspiracy was not attributed to him and similar was his position in Section 164, Cr.P.C, statements of three other PWs.-Abdul Haleem, Abdul Aleem and Sarfraz, who had only deposed that under the Faisla, wherein the father of the deceased had also participated, custody of Mst. Tasneem was given to the present petitioner, wherefrom subsequently under some conspiracy it was given to accused Muhammad Ibrahim, who was none else but husband of the deceased. His further submission is that whether petitioner conspired with the accused or played any role in the happening of subsequent events, ultimately resulting in qatl-i-amd of Mst. Tasneem is a matter, which needs further enquiry, thus entitles him for grant of bail in the matter. His further submission is that even oh the ground of statutory delay the petitioner is entitled for bail for the reasons that he has no past criminal record or has played any active role in the commission of crime, so as to hold him disparate, hardened or dangerous criminal and he is in custody for over 314 years, while delay in the proceedings of the case also cannot be attributed to him, but to the co-accused, who might have moved some applications for adjournment or for condonation of their absence from Court from time to time. He lastly contends that even as per rule of consistency present petitioner is entitled for grant of bail, as two other co-accused have been granted bail, one by the Trial Court and the other by the High Court, including the main accused Muhammad Ibrahim, who was admitted to bail on 11.5.2009, while accused Shah Zaman was granted bail on 17.8.2009.
4. Ms. Akhtar Rehana, learned Additional Prosecutor General Sindh, after going through Section 164, Cr.P.C, statements of all the six prosecution witnesses, including the statements of the father, mother and brother of deceased Mst. Tasneem, did not dispute that case of the petitioner is one which needs further enquiry and thus entitles him for grant of bail. More so, in the circumstances when no overt act resulting in qatl-i-amd of Mst. Tasneem has been attributed to him directly or indirectly, except that at one stage of the compromise, her custody was handed over to him. On the ground of statutory delay also, she could not say much as to the delay allegedly caused by the petitioner during the proceedings of the Sessions Case in which he is in custody now for over VA years.
5. We have carefully considered the submissions made before us by the learned ASC for the petitioner, learned Additional Prosecutor General, Sindh and perused the case record, which reveals that F.I;R. of the incident was promptly lodged on the same day, but neither name of the petitioner was disclosed in it nor even slightest role of any nature in the whole Occurrence was assigned to him. During further investigation of the ne father, mother and brother of deceased Mst.
Tasnebm have in their respective statements under Section 164, Cr.P.C, stated that Rehmatullah, Karim Bux, Zameer Ahmed, Habibullah, Ibrahim and two unknown persons actively or passively participated in the heinous crime and again nothing was uttered against the present petitioner by other three PWs- Abdul Hakeem, Abdul Haleem and Sarfraz in their respective statements under Section 164, Cr.P.C, recorded on 12.11.2008, except that after threats to the family of Gul Shair, custody of Mst. Tasneem was retained at the house of the petitioner and nothing was known that thereafter how she went back to. the house of her husband and latter on murdered in a brutal manner, it is also a matter of record that on one hand petitioner is aged 67 years while-thrice reinvestigation of this crime has taken place and on that basis subsequent challans have been submitted on 20.1.2009, 17.4.2009, 8.8.2009, which are in itself prima-facie proof of the fact that at this stage there is much to be done by the prosecution to show the involvement of the petitioner in the commission of this crime.
6. Keeping in view all the above discussed facts and material placed on record, we are inclined to hold that case of the petitioner is one which needs further enquiry and thus entitles him for grant of bail. Moreover, he has remained in custody for over 3/4 years and not attributed much in causing delay of proceedings in the Sessions case. Therefore, the petitioner has also become entitled for grant of bail on the ground of statutory delay, which aspect of the case has not been adequately addressed by the High Court in its impugned order.
7. This being the position, this criminal petition is converted into appeal and allowed. Accordingly, the petitioner is admitted to bail 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.