Allahabad High Court
Mukeem vs State Of U.P. on 12 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4955 of 2022 Applicant :- Mukeem Opposite Party :- State of U.P. Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40281 of 2021 Applicant :- Irfan Opposite Party :- State of U.P. Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A.,Nasira Adil With Case:- CRIMINAL MISC. BAIL APPLICATION No. - 4552 of 2022 Applicant :- Rashid @ Loha Opposite Party :- State of U.P. Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A. With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4372 of 2022 Applicant :- Arif Opposite Party :- State of U.P. Counsel for Applicant :- Keshari Nath Tripathi Counsel for Opposite Party :- G.A. With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41822 of 2021 Applicant :- Hori Opposite Party :- State of U.P. Counsel for Applicant :- Subhash Chandra Pandey Counsel for Opposite Party :- G.A.,Nasira Adil Hon'ble Rajeev Misra,J.
1. Heard Mr. Zafar Abbas, the learned counsel for applicants- Mukeem, Irfan and Rashid @ Loha, Mr. Keshari Nath Tripathi the learned counsel for applicant- Arif, Mr. Subhash Chandra Pandey,the learned counsel for applicant- Hori, the learned A.G.A. for State and Mr. N.I. Jafri, the learned Senior Counsel assisted by Ms. Nasira Adil, the learned counsel for first informant.
2. These applications for bail have been filed by applicants- Mukeem, Irfan, Rashid @ Loha, Arif and Hori, seeking their enlargement on bail in Case Crime No. 0218 of 2021, under sections 147, 148, 149, 302, 34, 120B IPC, Police Station- Katghar, District-Moradabad during the pendency of trial.
3. Perused the record.
4. Criminal Misc. Bail Application No. 4955 of 2022 came up for orders on 17.2.2022 and this Court passed the following order:
"Heard Mr. Zafar Abbas, learned counsel for applicant and learned A.G.A. for State.
At the very outset, learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court.
(i) Criminal Misc. Bail Application No. 4372 of 2022, (Arif vs State of U.P)
(i) Criminal Misc. Bail Application No. 4552 of 2022, (Rashid vs State of U.P)
(i) Criminal Misc. Bail Application No. 40281 of 2021, (Irfan vs State of U.P)
(i) Criminal Misc. Bail Application No. 41822 of 2021, (Hori vs State of U.P) In view of above, connect aforementioned criminal misc. bail applications along with this application for bail.
Matter shall reappear as fresh on 24.2.2022 along with connected matters. "
5. Pursuant to aforesaid order, all the bail applications referred to above were connected and have now been listed together. Since all the aforementioned bail applications arise out of the same case crime number, therefore, they have been heard together and are now being disposed of finally by a common order.
6. It transpires from record that in respect of an incident which is alleged to have occurred on 5.6.2021, a prompt F.I.R dated 5.6.2021 was lodged by first informant and was registered as Case Crime No. 0218 of 2021 of 2021, under sections 147, 148, 149, 302, 34, 120B IPC, Police Station- Katghar, District-Moradabad. In the aforesaid F.I.R. applicant Arif has been arraigned as solitary named accused.
7. The gravamen of the allegations made in aforesaid F.I.R. is to the effect that first informant along with his brothers Ramjani and Talim were returning from Rampur on two different motorcycles. At around 12:30 p.m. as they reached Arya Bhatt School, named accused armed with country made weapons who had already planned to commit the murder of deceased, stopped the motorcycle driven by Ramjani and dragged the pillion passenger Sartaj and thereafter they fired indiscriminate shots upon Ramjani. Injured Ramjani was taken to hospital, but succumbed to the injuries sustained by him before reaching the hospital. Old enmity has been shown as the motive behind the occurrence.
8. Subsequent to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforementioned Case Crime Number in terms of Chapter XII Cr.P.C. The inquest of deceased was conducted on 10.5.2021. In the opinion of witnesses of inquest (panch witness) the nature of death of deceased was homicidal. Subsequent to above, on the next day i.e. 11.5.2021. Post mortem of body of deceased was conducted. In the opinion of autopsy surgeon, the cause of death of deceased was haemorrhage due to ante-mortem fire-arm injuries. Autopsy surgeon found following ante-mortem injuries on the body of deceased:
"(i) Firearm entry wound with invert margins measuring 1.5 cm x 1.0 cm deep to cavity chest with oozing of blood with tattoing (multiple small laceration round in number) in surrounding area of about 12.0 cm x 9.0 cm lacerated on RT Lateral (Outer) side of chest about 13.0 cm below RT Axilla.
(ii) Exit firearm wound measuring 2.0 cm x 2.0 cm with everted margin, cavity deep, with oozing of blood with prolapse of underline soft tissues on left lateral (outer) side of lower chest about 20.0 cm below LT axilla.
(iii)Firearm entry wound measuring 1.5 cm x 1.0 cm, deep to cavity with inverted margins with oozing blood, located on middle of back about 22.0 cm below Lt shoulder just Rt to midline.
(iv) Contusion (bluish) area of 2.5 cm x 2.0 cm on Rt inguinal area just above Rt public bone with peeling foreign body on palpitation, and a metalic bullet recovered on dissection of contusion area just below skin."
9. On 13.5.2021, the complicity of three persons namely, Jane Alam, Mukeem and Rashid who are named accused came to surface. They were accordingly arrested on the aforesaid date. From the joint possession of aforesaid co-accused, a motorcycle was recovered. Subsequently, a country made pistol was recovered from an open place i.e. Railway Line on the pointing of accused Rashid. Aforesaid three accused were examined by Investigating Officer. In their confessional statements, they took the names of Irfan and Arif. Subsequent to above, first informant was examined on 15.5.2021 by Investigating Officer under section 161 Cr.P.C. on 5.5.2021. He has supported the prosecution story. Thereafter on 25.5.2021, an eye witness Talib was examined. This witness in his statement has nominated three persons in the criminality giving rise to these applications for bail namely, Jane Alam, Mukeem and Rashid @Loha. On 6.8.2021, Investigating Officer, examined Sartaj, another eye witness. This witness has implicated four persons in the commission of alleged crime namely, Jane Alam, Mukeem, Rashid and Nabiya S/o Ali Sher. On the basis of the material collected by Investigating Officer upto this stage, he made further arrests on 4.6.2021. Three more person namely, Nabiya, Arif and Irfan were arrested on 4.6.2021. From their joint possession, a motorcycle was recovered. From the person of Irfan, a country made pistol of 0.315 bore along with three live cartridges were recovered.
10. In the course of investigation, Investigating Officer has examined following witnesses under section 161 Cr.P.C:-(i) Anwar, (ii) Talib, (iii) Sartaj, (iv) Sakeena, (v) Salman. On the basis of statements of witnesses so examined under section 161 Cr.P.C. and other material collected by him during course of investigation, Investigating Officer submitted charge sheet dated 8.8.2021, whereby Jan-e-alam, Mukeem and Rashid @ Loha, Arif and Nabi Hasan @ Nabiya have been charge sheeted under sections 147, 148, 149, 302 IPC, and Chand Babu, Nabiya, Irfan and Hori have been charge sheeted under sections 147, 148, 149, 302, 120B IPC.
11. At the very outset, learned counsel for applicants submits that charge sheet has already been submitted against various accused but same can be easily divided in two parts. First part relates to the set of accused who are guilty of having caused the murder of deceased whereas, second part of the charge sheet relates to conspirators of crime. In respect of first set of charge sheeted accused, Nabiya and Jane Alam have already been enlarged on bail. Charge sheeted accused Nabia was enlarged on bail vide order dated 9.12.2021, passed in Criminal Misc. Bail Application No. 41082 of 2021, which reads as under:
"Heard Sri Zafar Abbas, learned counsel for the applicant, Sri Syed Ahmad, Advocate holding brief of Ms. Nasira Adil, learned counsel for the first informant and Sri Pankaj Mishra, learned Brief Holder 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 Nabiya seeking enlargement on bail during trial in connection with Case Crime No. 0218 of 2021, under Sections 147, 148, 149, 302, 34 and 120-B I.P.C., registered at Police Station Katghar, District Moradabad.
Learned counsel for the applicant argued that the applicant before this Court is Nabiya son of Navi Hasan, who has been implicated on the basis of evidence under section 120-B IPC only. It is argued that although the applicant is named in the first information report alongwith 5 others co-accused persons but only common and general role has been assigned to all the accused persons of indiscriminate firing. The post mortem examination report of the deceased Ramzani shows that doctor has found two fire arm wounds of entry and one wound of exit and there is one contusion from which one matelic bullet was found. The same does not in any manner corroborate the prosecution story as narrated in the first information report of indiscriminate firing upon the deceased. It is further argued that the applicant has been falsely implicated in the present case; the co-accused Jane Alam, Mukeem, Rashid alias Loha were arrested and from their possession a motorcycle and one country made pistol were recovered and they in their confessional statements stated that co-accused Arif and Rashid alias Loha fired upon the deceased. It is argued that later on on 05.06.2021 the applicant alongwith two other persons were arrested and there was a recovery of a motorcycle on the joint pointing out of the three persons and a recovery of country made pistol from the pointing out of two co-accused persons, namely, Irfan and Arif. It is argued that there is no incriminating material recovered either from the possession or pointing out of the applicant. Learned counsel for the applicant has argued that the applicant is being implicated in the present case on the basis of the evidence under Section 120-B IPC only. It is further argued that the applicant was earlier reported to be involved in one other criminal case of the year 2019 but no charge-sheet against him was filed. Para 16 of the affidavit filed in support of the bail application has been placed before this court as a disclosure and explanation of the same. It is argued that applicant is in jail since 05.06.2021. It is next argued that the case of the applicant is distinguishable with that of co-accused Arif and Rashid alias Loha.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail.
After having heard learned counsels for the parties and perusing the records, it is evident that there is no recovery of incriminating material either from the possession or the pointing out of the applicant; the post mortem report does not corroborate the prosecution story; the case of the applicant is distinguishable from co-accused Arif and Rashid alias Loha.
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 Nabiya 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) 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. "
12. Thereafter charge sheeted accused Jane Alam was enlarged on bail vide order dated 4.1.2022, passed in Criminal Misc. Bail Application No. 55904 of 2021. For ready reference same is reproduced herein under:
"Heard Sri Zafar Abbas, learned counsel for the applicant, and learned A.G.A. 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 Jane Alam seeking enlargement on bail in Case Crime No. 0218 of 2021, under Sections 147, 148, 149, 302, 34 I.P.C., registered at Police Station Katghar, District Moradabad.
Learned counsel for the applicant submitted that although the applicant is named in the first information report alongwith 5 others co-accused persons but only common and general role has been assigned to all the accused persons of indiscriminate firing. The post mortem examination report of the deceased Ramzani shows that doctor has found two fire arm wounds of entry and one wound of exit and there is one contusion from which one matelic bullet was found. The same does not in any manner corroborate the prosecution story as narrated in the first information report of indiscriminate firing upon the deceased.
To meet out this anomaly, the prosecution has developed a case and the witnesses in their statement under Section 161 Cr.P.C. has assigned the role of firing to, two the co-accused namely Arif and Rashid alias Loha. It is further contended that the accused applicant has been implicated on the basis of evidence of conspiracy. The charge-sheet has been submitted and the Investigating Officer has concluded that the co-accused Arif and Rashid alias Loha have fired upon Ramzan (deceased). There is no recovery of country made pistol or cartridges from the possession of the applicant or on the pointing of applicant. It is also contended that the co-accused Nabiya with identical case, has been enlarged on bail vide order dated 09.12.2021 in criminal misc. bail application no.41082 of 2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail.
Considering the rival submissions of the parties, the material and evidence available on the record and the fact that the co-accused Nabiya has already been enlarged on bail by coordinate bench of this Court, in the opinion of this Court a case for bail is made out.
Accordingly, the bail application is allowed.
Let the applicant Jane Alam involved in the aforesaid case crime be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
1. The applicant shall not tamper with the evidence or threaten the witnesses.
2. During trial, he shall not indulge in any criminal activities.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
In breach of any condition enumerated above, Trial Court shall be at liberty to treat it as abuse of liberty of bail and pass appropriate orders in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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. "
13. In respect to second set of charge sheeted accused, learned counsel for applicant contend that Chand Babu and Nabiya have already been enlarged on bail. Charge sheeted accused Chand Babu was enlarged on bail vide order dated 17.12.2021, passed in Criminal Misc. Bail Application No. 39925 of 2021, which reads as under:
"Heard learned counsel for the applicant, Sri N.I.Zafri, learned Senior Advocate, assisted by Ms. Nasira Adil, learned counsel for the complainant and the learned A.G.A.
This is a bail application on behalf of the applicant Chand Babu in connection with Case Crime No.218 of 2021, (S.T.No.754 of 2021) under Sections 147, 148, 149, 302, 34, 120-B I.P.C., Police Station Katghar, , district Moradabad.
The first information report of this incident was lodged by the complainant against six named accused persons. It was also alleged that at 12.30 p.m. when the complainant and his brother were returning home, named accused persons started indiscriminate firing upon Ramzani, who succumbed to the injuries.
The submission of learned counsel for the applicant is that the applicant is quite innocent and has been falsely implicated in the present case with the ulterior motive. He submitted that co-accused Nabiya has been admitted to the concession of bail by another Bench of this Court by order dated 09.12.2021 passed in Criminal Misc. Bail Application No.41082 of 2021, photocopy whereof supplied by learned counsel for applicant has been perused by Court, is taken on record and role assigned to applicant is similar to role of other co-accused, who has already been enlarged on bail. He claims parity. He submitted that applicant is languishing in jail since 27.07.2021, hence he is entitled to be released on bail and he will not misuse the liberty of bail and will cooperate in the trial.
Learned counsel for the complainant and learned A.G.A. have vehemently opposed the bail plea. However, learned A.G.A. does not dispute the factum of parity.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018 (3), SCC, 2 and also the fact that aforesaid co-accused has been admitted to the concession of bail by this Court, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Chand Babu involved in the aforesaid crime be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses;
iii) The applicant shall appear on the date fixed by the trial court;
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission;
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by learned counsel for the applicant along with a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
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. "
14. Thereafter another charge sheeted accused Nabi Hasan @ Nabiya has been enlarged on bail vide order dated 10.2.2022, passed in Criminal Misc. Bail Application No. 3373 of 2022. The same is reproduced herein under:
"Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.
This bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No.218 of 2021, under Sections 302, 147, 148, 149, 34, 120-B I.P.C., Police Station Katghar, District Moradabad during the pendency of trial.
Learned counsel for the applicant submitted that accused-applicant is not named in the first information report. His name has come into light in the confessional statement of co-accused Jane Alam before investigating officer. It is also submitted that aforesaid co-accused Jane Alam, Chand Babu and Nabiya have been granted bail by co-ordinate Bench of this Court. Therefore, the applicant is also entitled to be released on bail on the ground of parity. The applicant is languishing in jail since 04.08.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the bail application and submitted that applicant was hired to commit the crime by other co-accused persons.
Perusal of the record shows that applicant is not named in the FIR. It is stated by co-accused Jane Alam in his statement under Section 161 Cr.P.C. that co-accused hired the applicant for committing the murder in exchange of Rs.50,000/-. Aforesaid Jane Alam who is named in the FIR, has been granted bail by co-ordinate Bench of this Court. Apart from the co-accused, Chand Babu and Nabiya have also granted bail, who are named in the FIR.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Nabi Hasan@ Nabiya 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:
1. The applicant shall not tamper with the evidence or threaten the witnesses.
2. During trial, he shall not indulge in any criminal activities.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
In breach of any condition enumerated above, Trial Court shall be at liberty to treat it as abuse of liberty of bail and pass appropriate orders in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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. "
15. Mr. Zafar Abbas, learned counsel for applicants- Mukeem, Irfan and Rashid @ Loha contends that applicants Mukeem and Rashid @ Loha are named as well as charge sheeted accused, whereas applicant Irfan is a not named but a charge sheeted accused. However, they are innocent. They have been falsely implicated in above mentioned case crime number. It is then contended that applicant Irfan who is not named in F.I.R, but he has been charge sheeted under sections 147, 148, 149, 302, 120B IPC. Claiming parity with the bail orders of co-accused Chand Babu and Nabi Hasan @ Nabiya referred to above, he submits that applicant Irfan is liable to be enlarged on bail on the ground of parity. He, further submits that case of applicant-Irfan is similar and identical to aforementioned co-accused who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of applicant-Irfan can be distinguished from aforesaid co-accused who have been enlarged on bail so as to deny him bail. According to Mr. Zafar Abbas, learned counsel for aforementioned applicants, conspiracy is a close door affair and is therefore subject to trial evidence. It is then contended that applicants- Mukeem and Rashid @ Loha fall in the first set of charge sheeted accused. Two accused falling in the first set of charge sheeted accused namely, Nabiya and Jane Alam have already been enlarged on bail. Thus for the facts and reasons mentioned in the bail orders of aforesaid co-accused applicants Mukeem and Rashid @ Loha are also liable to be enlarged on bail on the ground of parity.
16. It is next contended that aforementioned applicants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicant-Mukeem is in jail since 13.5.2021. Applicant-Irfan is in jail since 4.6.2021. Applicant-Rashid @ Loha is in jail since 14.5.2021. As such, they have undergone sufficient period of incarceration. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with trial.
17. Mr. Subhash Chandra Pandey,the learned counsel for applicant- Hori contends that applicant is named as well as charge sheeted accused but he is innocent. He has been falsely implicated in above mentioned case crime number. It is then contended that applicant Hori has been charge sheeted under sections 147, 148, 149, 302, 120B IPC. Referring to bail orders of Chand Babu and Nabi Hasan @ Nabiya who have already been enlarged on bail by this Court, it is urged that case of applicant Hori is similar and identical to charge-sheeted accused Chand Babu and Nabi Hasan @ Nabiya. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny him bail. As such, applicant is liable to be enlarged on bail on the ground of parity.
18. It is next contended that applicant- Hori has criminal history of one case, which has been duly explained in paragraph 25 of his bail application. Applicant-Hori is in jail since 27.7.2021. As such, he has undergone more than eight months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
19. Mr. Keshari Nath Tripathi,the learned counsel for applicant- Arif contends that applicant is not named in F.I.R. but he is a charge-sheeted accused. He has been falsely implicated in above mentioned case crime number. It is then contended that applicant Arif has been charge sheeted under sections 147, 148, 149, 302, 120B IPC. Referring to bail orders of Jane Alam and Nabiya who have already been enlarged on bail by this Court, it is contended that case of applicant Arif is similar and identical to aforesaid accused who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny him bail. As such, applicant is liable to be enlarged on bail on the ground of parity.
20. It is next contended that applicant- Arif is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant-Arif is in jail since 5.6.2021. As such, he has undergone nine months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.
21. Per contra, the learned A.G.A. and Mr. N.I. Jafri, learned Senior Counsel for first informant have opposed the prayer for bail. They submit that since applicants are named as well as charge sheeted accused, they do not deserve any indulgence by this Court. Criminality committed by applicants upon deceased is interlinked and intertwined. Therefore, same cannot be segregated or separated. It is thus contended that no indulgence be granted by this Court in favour of applicants.
22. Mr. N.I. Jafri, learned Senior Counsel for first informant has laid much emphasis on the CCTV Footage recovered by Investigating Officer, which also forms part of the case diary. On the basis of above, he contends that complicity of charge sheeted accused namely, Jane Alam and four others is fully established in the crime in question. He has then invited attention of the Court to the order dated 4.1.2022 passed by this Court in Criminal Misc. Bail Application No. 55904 of 2021 and on basis of above, he submits that the role of causing fire arm injuries to the deceased has been assigned to two of the named accused namely, Arif and Rashid@ Loha. He, therefore, contends that case of applicants Arif and Rashid @ Loha is clearly distinguishable from other charge sheeted accused. The post-mortem report also clearly shows that deceased has died on account of fatal gun shot injuries sustained by him. He thus submits that bail applications of applicants- Arif and Rashid @ Loha are liable to be rejected.
23. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, this Court does not find any good or justifiable ground to enlarge the applicant Arif and Rashid @ Loha on bail.
24. Accordingly, bail applications of applicants- Arif and Rashid @ Loha are rejected
25. However, for the facts and reasons mentioned above, applicants- Mukeem, Irfan and Hori have made out a case for bail on the ground of parity with the bail orders referred to above. Accordingly bail applications of applicants- Mukeem, Irfan and Hori are allowed .
26. Let the applicants Mukeem, Irfan and Hori, be released on bail in aforesaid case crime number on their furnishing personal bonds 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
27. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 12.4.2022 Arshad