Allahabad High Court
Meharban vs State Of U.P. Through Secretary Home At ... on 7 May, 2022
Author: Samit Gopal
Bench: Rajeev Misra, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54908 of 2021 Applicant :- Meharban Opposite Party :- State Of U.P. Through Secretary Home At Lucknow Counsel for Applicant :- Rajiv Sisodia,Mohammad Belal,Sunil Kumar Tiwari Counsel for Opposite Party :- G.A.,Mohd Nasir Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajiv Sisodia, the learned counsel for applicant, the learned A.G.A. for State. No one appears on behalf of first informant even though the name of Mohd. Nasir is published in the cause list as counsel for first informant. .
2. Perused the record.
3. Instant bail application has been filed by applicant-Meharban seeking his enlargement on bail in Case Crime No. 171 of 2021 under Sections 147, 148, 149, 302, 120-B I.P.C., Police Station- Mansoorpur, District- Muzaffarnagar, during pendency of trial.
4. Present bail application came up for order s on 11.03.2022 and this Court passed the following order:-
"Heard Mr. Rajiv Sisodia, the learned counsel for applicant and the learned AGA for State.
Mr. Mohd. Nasir, learned counsel for the first informant is not present even in the revised call.
On the matter being taken up learned AGA contends that the bail applications being Criminal Misc. Bail Application No.50078 of 2021 (Tanveer Vs. State of UP), Criminal Misc. Bail Application No.50953 of 2021 (Kadir Vs. State of UP) and Criminal Misc. Bail Application No.55906 of 2021 (Irfan Vs. State of UP) filed by the co-accused are already pending before this Court.
In view of above, connect the aforementioned bail applications alongwith the present bail application.
Matter shall reappear as fresh on 16.03.2022 alongwith the connected cases.
Order Date :- 11.3.2022"
5. However, in spite of aforesaid order, bail applications mentioned in above order dated 11.03.2022 were listed separately on different dates and have been allowed.
6. It transpires from record that in respect of an incident, which is alleged to have occurred on 15.07.2021, a prompt F.I.R. dated 15.07.2021 was lodged by first informant-Irshat and was registered as Case Crime No. 171 of 2021 under Sections 147, 148, 149, 302, 120-B I.P.C., Police Station- Mansoorpur, District- Muzaffarnagar. In the aforesaid F.I.R. five persons, namely, Foorkan, Kayyum, Irfan, Meharban (applicant herein) and Mohsina have been arraigned as named accused whereas two unknown persons have also been nominated as accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused and not named accused with a common object assaulted the sister of the first informant, on account of which, she sustained injuries. She ultimately succumbed to the injuries sustained by her.
8. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Inquest (Panchyatnama) of the body of deceased was conducted on 15.07.2021. However, the witnesses of inquest (Panch witnesses) could not categorize the nature of death of deceased. The Panch witness , however, opined that death of deceased has occurred in suspicious circumstances. Thereafter, post-mortem of the body of deceased was conducted on 16.07.2021. In the opinion of Autopsy Surgeon, cause of death of deceased was shock and haemorrhage as a result of anti mortem injuries. Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
i. Firearm wound of entry 2 x 1-1/2 cm. on right side of front of chest 5 cm. above right nipple. Margins inverted Tattooing present underlying bonee fractured.
ii. Firearm exit wound 2-1/2 x 2 cm on back of left side chest between 6th & 7th rib of left side. Margins everted.
9. During course of investigation, Investigating Officer examined various witnesses namely, Talib Hasan, Aakshay, Praveen Pal, Harendrea Kumar, Ravindra Malik , akshay Dabar, Sharaft Ali, Bilkis and Sanjida under section 161 Cr.P.C., Complicity of present applicant came in the statement of Sharafat Ali. Apart from above co-accused Kadir and Tahsin, who were employed by applicant Meharban have implicated the present applicant in the commission of alleged crime. Out of the aforesaid witnesses so examined, two witnesses namely Lakshay and Praveen Pal are alleged to be the eye-witness. They have supported the occurrence in their statements. Ultimately, Investigating Officer upon completion of investigation has submitted charge-sheet dated 15.09.2021 where by named accused Furkan, Qayyum, Irfan, Meharban (applicant herein) and Tanveer not named accused have been charge-sheeted under Sections 302 and 120-B I.P.C. whereas another not named accused Qadir has been charge-sheeted under Section 302 I.P.C. However, named accused Mohsina has been exculpated.
10. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused but he is innocent. He has been falsely implicated in afore-mentioned case crime number. Allegations made in the F.I.R. against applicant are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number.
11. It is then submitted that that Co-accused Kayyum who is a named accused has already been enlarged on bail by this Court vide order dated 03.03.2022 passed in Criminal Misc. Bail Application No. 47862 of 2021 (Kayyum Vs. State of U.P.). For ready reference order dated 03.0320221 is reproduced herein-under:
"Heard Sri Sunil Kumar Tiwari, learned counsel for the applicant, Sri Mohd. Nasir, learned counsel for the first informant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Kayyum, seeking enlargement on bail during trial in connection with Case Crime No.171 of 2021, under Section 302, 120-B IPC, registered at Police Station Mansoorpur, District Muzaffarnagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that although in the FIR, there is an allegation that the applicant along with four other named persons and two unknown persons have fired upon the deceased Smt. Mohseena who was the first wife of co-accused Furqan @ Sonu but the same is false and incorrect. As per postmortem report, the deceased was found to have received a single gun-shot which had an exit. The cause of death opined by the doctor is hemorrhage as a result of antemortem fire-arm injury. Common and general role has been assigned to all the named and two unknown accused persons including the applicant. The medical evidence does not support the prosecution case. The applicant has no motive to commit the aforesaid crime. It is argued that there is no recovery of any incriminating article either from the possession of the applicant or at his pointing out. So far as criminal history of the applicant of three cases is concerned, the same has been disclosed in para 4 of the undated supplementary affidavit. The applicant is in jail since 4.8.2021.
Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the FIR and there is a role assigned to him. Even there is role of torturing the deceased prior to present case regarding which FIR has been lodged by the deceased herself. The applicant has joined the hands with other co-accused persons and as such he is involved in the present case. They all had conspired to commit the aforesaid offence, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that common and general role has been assigned to the applicant and four other named and two unknown persons of assault of firing upon the deceased. As per postmortem report, she has received one gun-shot which was the cause of death. The other injury was exit wound.
The case of the applicant is distinguishable with the co-accused Meharban, Tanveer, Qadir, Tehseem.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Kayyum, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties would be of family members) each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
(Samit Gopal, J.) Order Date :- 3.3.2022 "
12 Similarly Co-accused Tanveer, who is a also charge sheeted accused has already been enlarged on bail by Court vide order dated 16.03.2022 passed in Criminal Misc. Bail Application No. 50078 of 2021 (Tanveer Vs. State of U.P.). For ready reference order dated 16.03.2022 is reproduced herein-under:
" Heard Shri Gautam Dubey, learned counsel for the applicant, learned A.G.A. for the State, Mohd Nasir, learned counsel for the first informant and perused the material on record.
The present bail application has been filed on behalf of applicant Tanveer under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 171 of 2021 for offence punishable under Sections 302, 120B of the Indian Penal Code, registered at Police Station Mansurpur, District Muzaffarnagar, during pendency of the trial, after rejecting the bail application of the applicant by Incharge Sessions Judge, Muzaffarnagar vide order dated 14.10.2021.
Brief facts of the case are that the First Information Report dated 15.7.2021 has been lodged against five named persons excluding the applicant and two unknown persons by the brother of the deceased stating that the marriage of his sister Mohseena was solemnized with co-accused Furqan @ Sonu eight years prior to the incident. Out of the said wedlock, one boy was born. Co-accused Furqan @ Sonu solemnized second marriage with another girl namely, Mohseena. After that husband of his sister and his family members started to commit marpeet with his sister and tortured her. They also attempted to murder his sister and threatened with dire consequences. Deceased lodged cases against the accused persons several times. Due to this enmity, named co-accused persons Furqan @ Sonu and Meharban threatened his sister with dire consequences. His sister told the first informant about this incident. On 15.7.2021 at 12.00 noon Furqan, Kayyum, Irfan, Meharban and second wife of Furqan called his sister at Begrajpur Hospital. When his sister reached at the gate of the hospital, two unknown motorcyclist having deadly weapon came and murdered his sister. First informant and one Talib, who were going in their relation, saw the assailants firing on the sister of the first informant. They identified the assailants. His sister died on the spot.
After lodging the first information report, inquest of the dead body of the deceased was conducted on 15.7.2021 at 10.40 p.m. on the information of ward boy. Postmortem of the dead body was conducted on 16.7.2021 at 12.30 p.m. As per postmortem report, one firearm entry and exit wound were found on the person of the deceased. After recording the statements of prosecution witnesses, charge sheet has been submitted against four named persons and three others including the applicant. The applicant has surrendered before the court concerned on 15.9.2021.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to old enmity. It is further submitted that the applicant is not named in the first information report. Name of the applicant surfaced in the statement of Bilkis, second sister of the first informant, wife of brother of co-accused Furqan @ Sonu. It is further submitted that the role of hatching conspiracy has been attributed to the present applicant. It is alleged that the applicant has arranged two shooters to commit murder of sister of the first informant. It is further submitted that two other unknown persons namely, Kadir and Tahseen confessed as extra judicial confession before the Sarafat Ali, cousin of the first informant that they murdered the sister of the first informant. Co-accused Kadir and Tahseen are servant of co-accused Meharban. It is further submitted that in her oral statement Bilkis has attributed the role of hatching conspiracy of murder to the applicant with other co-accused Furqan, Kayyum, Irfan, Meharban and Mohseena two months prior to the incident, which is highly improbable. It is further submitted that except hatching conspiracy no other role has been attributed to the present applicant. It is further submitted that the applicant has criminal history of two minor criminal cases, which has been explained in paragraph Nos. 4 & 5 of the first supplementary affidavit. It is further submitted that co-accused Kayyum, having similar role, has been granted bail by Coordinate Bench of this Court vide order dated 3.3.2022 in Criminal Misc. Bail Application No. 47862 of 2021.
He has next argued that if the applicant is released on bail, he shall not misuse the liberty of bail.
Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) The applicant is not named in the first information report;
(b) The applicant has surrendered before the court concerned on 15.9.2021;
(c) Role of hatching conspiracy has been attributed to the applicant on the basis of oral statement of Bilkis;
(d) Except the oral statement of Bilkis, there is no other evidence against the applicant;
(e) Co-accused Kayyum, having similar role, has been granted bail by Coordinate Bench of this Court vide order dated 3.3.2022 in Criminal Misc. Bail Application No. 47862 of 2021.
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Tanveer be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 16.3.2022 "
13. Thereafter, co-accused Kadir, who is a also charge sheeted accused has already been enlarged on bail by Court vide order dated 11.04.2022 passed in Criminal Misc. Bail Application No. 50953 of 2021 (Kadir Vs. State of U.P.). For ready reference order dated 11.04.2022 is reproduced herein-under:
"Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and Mohd. Nasir, learned counsel appearing on behalf of the first-informant.
By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 171 of 2021, under sections 302, 120B IPC, Police Station Mansoorpur, District Muzaffar Nagar, seeks enlargement on bail during the pendency of trial.
As per prosecution case, complainant Ishrat, who is brother of the deceased has lodged an F.I.R. dated 15.7.2021 against five named persons excluding the applicant and two unknown persons stating therein that the marriage of his sister Mohseena was solemnized with co-accused Furqan @ Sonu eight years prior to the incident. Out of the said wedlock one boy was born. Co-accused Furqan @ Sonu solemnized second marriage with another girl namely Mohseena D/o Meharban. After that, husband of his sister and his family members started committing marpeet with his sister and tortured her. They also attempted to murder his sister and threatened with dire consequences. Deceased lodged cases against the accused persons several times. Due to this enmity, named co-accused persons Furqan @ Sonu and Meharban threatened his sister with dire consequences. His sister told the first informant about the said incident. On 15.7.2021 at 12:00 noon Furqan, Kayyum, Irfan, Meharban and second wife of Furqan @ Sonu called his sister at Begrajpur Hospital. When his sister reached at the gate of the hospital, aforesaid people along with two unknown motorcyclist having deadly weapon came and murdered his sister. First informant and one Talib, who were going in their relation, saw the assailants firing on the sister of the first informant. They identified the assailants. His sister died on the spot. After lodging the first information report, inquest of the dead body of the deceased was conducted on 15.7.2021 at 10:40 pm. Postmortem of the dead body was conducted on 16.7.2021 at 12:30 pm. As per postmortem report, one firearm entry and exit wounds were found on the person of the deceased. After recording the statements of prosecution witnesses, charge sheet has been submitted against four named persons and three others including the applicant.
It is submitted by the learned counsel for the applicant that applicant is not named in the F.I.R., he is innocent and has been falsely implicated in this case. It is next submitted that as per the prosecution case, name of the applicant was surfaced in the statement dated 22.7.2021 of one Sharafat Ali who is cousin brother of the deceased disclosing that the applicant has confessed his guilt before him. Thereafter, applicant was arrested on 10.8.2021 and as per the prosecution case, police has recorded his confessional statement in which he has also accepted his guilt. It is next submitted that the motorcycle which was used for the commission of crime and one country made pistol were recovered from the possession of the applicant. Much emphasis has been given by contending that the applicant has not made any confessional statement. The informant and one Talib are said to be eye witnesses of the incident but no identification proceedings was conducted. It is further submitted that except the extra judicial confession of the applicant before Sharafat Ali and the confessional statement of the applicant, there is no direct evidence against the applicant. The motorcycle which has been shown to be recovered from the possession of the applicant also does not belongs to him but the same belongs to one Shokeen @ Mota who has not been made as an accused in the present case. It is next submitted that the informant, in his second statement under Section 161 Cr.P.C., has changed the prosecution case and exonerated the main accused persons by contending that his sister was shot dead by two boys out of which one was Tehseen who had fired shot at his sister. It is also pointed out that other co-accused namely Kayyum, who is named in the F.I.R and Tanveer, who is not named in the F.I.R. have been granted bail by the co-ordinate Bench of this Court vide orders dated 3.3.2022 and 16.3.2022 passed in Criminal Misc. Bail Application Nos. 47862 of 2021 and 50078 of 2021 respectively. Apart from this case, applicant has one criminal history to his credit which has been explained in para 30 of the bail application. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 15.7.2021 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the applicant was hired by other co-accused persons for committing murder of the deceased but they did not dispute that except the extra judicial confession of the applicant before Sharafat Ali and his own confessional statement, there is no direct evidence against the applicant. It is also not disputed that the complainant/informant in his second statement has changed the prosecution case.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that as per the second statement of the complainant, the main role of shooting the deceased has been assigned to co-accused Tehseen, therefore, the case of the applicant is distinguishable with the case of co-accused Tehseen.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, considering the bail orders of co-accused Kayyum and Tanveer, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.
Let the applicant-Kadir, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions, which are being imposed in the interest of justice:-
(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 11.4.2022"
14. Similarly co-accused Irfan, who is a also charge sheeted accused has already been enlarged on bail by Court vide order dated 11.04.2022 passed in Criminal Misc. Bail Application No. 55906 of 2021 (Irfan Vs. State of U.P.). For ready reference order dated 11.04.2022 is reproduced herein-under:
" Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and Mohd. Nasir, learned counsel appearing on behalf of the first-informant.
By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 171 of 2021, under sections 302, 120B IPC, Police Station Mansurpur, District Muzaffar Nagar, seeks enlargement on bail during the pendency of trial.
As per prosecution case, complainant Ishrat, who is brother of the deceased has lodged an F.I.R. dated 15.7.2021 against five named persons including the applicant and two unknown persons stating therein that the marriage of his sister Mohseena was solemnized with co-accused Furqan @ Sonu eight years prior to the incident. Out of the said wedlock one boy was born. Co-accused Furqan @ Sonu solemnized second marriage with another girl namely Mohseena D/o Meharban. After that, husband of his sister and his family members started committing marpeet with his sister and tortured her. They also attempted to murder his sister and threatened with dire consequences. Deceased lodged cases against the accused persons several times. Due to this enmity, named co-accused persons Furqan @ Sonu and Meharban threatened his sister with dire consequences. His sister told the first informant about the said incident. On 15.7.2021 at 12:00 noon Furqan, Kayyum, Irfan, Meharban and second wife of Furqan @ Sonu called his sister at Begrajpur Hospital. When his sister reached at the gate of the hospital, aforesaid people along with two unknown motorcyclist having deadly weapon came there and murdered his sister. First informant and one Talib, who were going in their relation, saw the assailants firing on the sister of the first informant. They identified the assailants. His sister died on the spot. After lodging the first information report, inquest of the dead body of the deceased was conducted on 15.7.2021 at 10:40 pm. Postmortem of the dead body was conducted on 16.7.2021 at 12:30 pm. As per postmortem report, one firearm entry and exit wounds were found on the person of the deceased. After recording the statements of prosecution witnesses, charge sheet has been submitted against four named persons and three others including the applicant.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case. The informant, in his second statement under Section 161 Cr.P.C., has changed the prosecution case by contending that his sister was shot dead by two boys out of which one was Tehseen who had fired shot at his sister. As per second statement of the complainant, co-accused Tehseen is the main accused who has fired shot at his sister. In the postmortem report, one injury was found on the body of the deceased which has been attributed to co-accused Tehseen. It is next submitted that the present applicant and other named co-accused persons namely Furqan @ Sonu, Kayyum, Meharban and Mohseena are concerned, it is the case of complainant that their names were mentioned in the F.I.R. on the insistence of some persons. It is also submitted that there is no credible evidence against him, however, charge-sheet has been submitted against the applicant attributing the role of conspiracy in the matter. It is also pointed out that other co-accused namely Kayyum, who is named in the F.I.R and Tanveer, who is not named in the F.I.R. have been granted bail by the co-ordinate Bench of this Court vide orders dated 3.3.2022 and 16.3.2022 passed in Criminal Misc. Bail Application Nos. 47862 of 2021 and 50078 of 2021 respectively. Apart from this case, applicant has three criminal history to his credit which have been explained in paras 31, 32 and 33 of the bail application. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 4.8.2021 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the applicant is named in the F.I.R. and the charge-sheet has also been submitted against him attributing the role of conspiracy in the matter however they do not dispute the fact that there is no direct evidence against the applicant and the complainant/informant, in his second statement, has changed the prosecution case.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that as per the second statement of the complainant, the main role of shooting the deceased has been assigned to co-accused Tehseen, therefore, the case of the applicant is distinguishable with the case of co-accused Tehseen.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, considering the bail orders of co-accused Kayyum and Tanveer, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.
Let the applicant-Irfan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions, which are being imposed in the interest of justice:-
(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 11.4.2022"
15. On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of co-accused Kayyum, Tanveer, Kadir and Irfan, who have already been enlarged on bail. It is then contended that for the facts and reasons mentioned in the orders of aforesaid co-accused, present applicant is also liable to be enlarged on bail on th ground of parity. Upto this stage, there is no such distinguishing feature, on the basis of which, case of present applicant can be distinguished from co-accused Kayyum, Tanveer, Kadir and Irfan so as to deny him bail.
16. It is next contended that after Registration of F.I.R. dated 15.07.2021, first informant was examined by Investigating Officer under Section 161 Cr.P.C. Photocopy of the same is on record as Annexure 2 to the affidavit. First inormant in his statement before Investigating Officer has not implicated present applicant in the commission of the alleged crime. There is no recovery from the applicant. No motive can be attached to the applicant in the commission of alleged crime. Applicant is alleged to have accompanied in the commission of alleged crime. Conspiracy is a closed door affair and therefore, same is subject to trial evidence.
17. It is lastly contented that applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in custody since 27.07.2021. As such, he has undergone more than seven and a half months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. On the aforesaid premise, learned counsel for applicant contends that applicant is liable to be enlarged on bail.
18. Per contra, the learned A.G.A. for State for State has opposed the present application for bail. He contends that applicant is not only a named accused but also a charge-sheeted accused. As such, applicant does not deserve any sympathy of this Court. He has further invited the attention of court to the statement of witness Sharafat Ali and on basis thereof, he contends that complicity of present applicant is clearly established in the commission of alleged crime. He also contends that case of present applicant is not similar and identical to that of co-accused Kayyum, Tanveer, Kadir and Irfan. Two of the charge-sheeted accused Kadir and Tahsin who were employed by present applicant, have also implicated present applicant in the commission of alleged crime. There is nothing on record to disbelieve the aforesaid two witnesses nor there is any malafide alleged against aforesaid witnesses. However, their statements have not even been brought on record. Learned A.G.A. further submits that during course of investigation, certain recoveries were made by Investigating Officer, which are as under:
i. A 32 bore Pistol alongwith two live cartridges were recovered from accused Tehseen.
ii. A country made Pistol of 0.315 bore alongwith one missed cartridge was recovered from accused Imran iii. One motorcycle being Registration No. UP-12 A.K. 5690 of Passion-4 make was recovered from accused Qadir alongwith a country made pistol of 0.315 Bore with one live cartridge which was loaded in the gun.
19. On the aforesaid premise, the learned A.G.A. submitS that applicant does not deserve any indulgence by this Court. Therefore, present applicant for bail is liable to be rejected. However, he could not dispute the factual and legal submissions urged by learned counsel for applicant.
20. Having heard learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant but without expressing any opinion on merits of the case, applicant has made out a case for bail.
21. Let the applicant-Meharban involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison.
15. Accordingly, present bail application is allowed.
Order Date :- 7.5.2022 HSM