SYED MUHAMMAD FAROOQ SHAH, J.:- The applicant presently confined in Central Prison, Karachi seeks bail in Crime No. 112 of 2013, registered at Police Station Razvia, for an offence punishable under section 302/34 PPC.
2. Brief facts of the case in hand are that on 28.04.2013 complainant Sartaj Hussain lodged FIR at P.S. Rizvia Society wherein he stated that on 27.04.2013, at about 1155 hours he was present at his house when one Ghulam Hussain s/o Ali Muhammad informed him that Liaquat and his three companions identifiable by faces riding on motorcycle, at Farooqabad, near Habib TV wala, murdered his son Hassan Kashmiri by means of firing. On such information, he alongwith said Ghulam Hussain rushed to the said place and saw that his son was lying in serious condition on ground, he brought him to Abbasi Shaheed Hospital, where he expired.
3. Earlier bail application moved by the applicant before the trial court was rejected vide order dated 13.7.2013. Hence this application.
4. Arguments heard. Record perused.
5. Mr. Arshad H. Lodhi, learned counsel for the applicant, at the very outset, submitted that from the contents of the FIR it appears that one Ghulam Hussain s/o Ali Muhammad informed the complainant about the occurrence but the said Ghulam Hussain has not been examined by the police as his name in the Colum No.6 of the Charge Sheet No. 75/2013 dated 19.05.2013 is not appearing, which shows that t is a case of no evidence as no any independent person or inhabitant of the locality is examined. Learned counsel next contended that the applicant is innocent and has been falsely implicated by the police in this case; that admittedly there is no eye witness of alleged incident in this case and entire story of the FIR and version of the complainant is based on hear-say evidence, which requires further inquiry; that there is inordinate delay in reporting the matter/registration of FIR as the alleged incident is on 27.04.2013 at 1155 and report was lodged on 28.04.2013 at 1810 hours and the explanation of delay in lodging the FIR is not satisfactory. Learned counsel next contended that as per prosecution, the applicant had made the confessional statement before the police which is not admissible in evidence and barred by Article 38 and 39 of Qanun-e-Shahadat Order, 1984; that no specific role in commission of alleged offence has been assigned or attributed to the present applicant. More-so, all the witnesses are interested witnesses and belongs to complainant and prosecution has miserably failed to produce any convincing evidence against the applicant. Learned counsel submitted that as per available record deceased Hassan Kashmiri s/o Sartaj Hussain was involved in five (5) murder cases and was a proclaimed offender. To support his contention learned counsel has filed the copies of FIRs and charge sheets alongwith statements showing that deceased Hassan Kashmiri was involved in five murder cases. The said statement has taken on record. Learned counsel submitted that the deceased Hassan Kashmiri was murdered by the relative of those who were killed by him. In support of his contention learned counsel placed his reliance on the case law reported as ABDUR RAHMAN V/S THE STATE (NLR 1982 Criminal 332), Wherein the Hon'ble Court held that lodging of the FIR at 8.00 p.m., of an occurrence which took place at 5.00 p.m., was suspicious. Reliance has also been placed on the case of JAFFAR AND OTHERS VS. THE STATE (1980 SCM R 784), wherein it was held that the material on record not showing as to which of accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill deceased hence the case was of further inquiry and bail was allowed. The learned counsel has also placed reliance on the case ofNOORUDDIN AND ANOTHER VS. THE STATE (2005 M LD 1267) and SULEMAN VS. THE STATE (2012 M LD 574).
6. Conversely, Mr. Abdullah Rajput, learned Assistant Prosecutor General, Sindh though admitted the factual position evident from the record that the main star witness of the prosecution namely Ghulam Hussain s/o Ali Muhammad, who informed the complainant about murder of his son namely Hassan Kashmiri, has not been examined or cited as a witness in the charge sheet but submitted that since the offence is heinous one hence he opposes the grant of bail to the applicant.
7. Tentative assessm ent of the material available on the record transpires that the main star witness Ghulam Hussain S/o Ahmed Ali, who allegedly informed about the incident to the complainant, has neither been examined by the police nor his name depicts in the charge sheet as a witness; no specific role in FIR nor having any weapon in the hand of applicant or any overt act has been attributed to him. It is alleged that the applicant made confessional statement before the police, which was not made in the presence of Magistrate and in the absence of any strong corroborative piece of evidence, therefore, no legal sanctity is attached to such extra judicial confession made by the applicant/accused before the police under Article 38 & 39 of Qanun-e- Shahadat, when he was in custody of police and thus is of no legal value. It is also alleged that illicit crime weapon was recovered on pointation of applicant when he was in custody, recovery of such weapon does not mean that the applicant has caused murder of Hassan Kashmiri s/o complainant, more-so, no independent person or inhabitant of the locality associated to witness the recovery of crime weapon as required under section 103 Cr.P.C.. Suffice it to say that sufficient iota of evidence has not been collected by the prosecution to connect the applicant in commission of the alleged crime, hence the applicant is entitled for concession of bail. Consequently, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs. 2,00,000/- (Rupees two lacs only) and P.R.Bond in the like amount to the satisfaction of trial court.
8. It need not to emphasize that observations made above are tentative in nature and the trial Court shall not influence by such observations.