ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail A. No. S-391 of 2017

 

Date

               Order with signature of Judge

 

 

For hearing of bail application

 

 

Date of hearing: 08-06-2018

Date of Order: 14-06-2018

 

 

 

Mr. Sohail Ahmed Khoso, Advocate for applicant ;

Mr. Bashir Ahmed Shar, Advocate for complainant;

Mr. Sardar Ali Shah Rizvi, DPG

 

.-.-.-.-.-.-.-.-.-.-.-.

 

 

Adnan Iqbal Chaudhry J. –   Cr. Bail Application No.S-391/2017 for post-arrest bail was allowed by short order on 14-06-2018 in the following terms:

 

“For reasons to be recorded later on, applicant Habibullah son of Adyal Shar is granted bail in Crime No.151/2013 of P.S. Faiz Gunj, District Khairpur, subject to furnishing solvent surety in the sum of Rs. 300,000/- (three lacs) and PR bond in the like amount to the satisfaction of trial court.”

 

The reasons for grant of bail are as follows.

 

1.      On 27-10-2013, six accused persons namely (i) Bilawal Shar, (ii) Abdul Fateh, (iii) Ali Raza, (iv) Habibullah (all sons of Adyal Shar), (v) Ghulam Abbas, and (vi) Adyal Shar were nominated in Crime No.151/2013 at P.S. Faiz Gunj, District Khairpur, under Sections 302 (qatl-i-amd), 148 (rioting with deadly weapon), 149, 114, 337-H(2) (rash or negligent act) of the P.P.C., causing the death of Qutubuddin (the deceased victim). The complainant Haq Nawaz is the father of the deceased victim.

 

2.      Per the FIR, a few days prior to the incident, the accused Bilawal Shar had exchanged hot words with the deceased on the ground that the deceased had allegedly verbally abused Adyal Shar who was the father of Bilawal Shar; that when the complainant and the deceased were returning to their village on the fateful day, they were confronted by the aforesaid six accused all of whom were bearing fire-arms; that Adyal instigated the murder of the deceased; that as a result of the commotion, Mohammad Juman and Mohammad Urs (brother and nephew respectively of the complainant) and other villagers came running to the scene; that on seeing the arrival of others, the accused Bilawal Shar fired at the deceased which hit the deceased on his chest; that the accused Abdul Fateh fired at the deceased which hit him on the chest; that Ghulam Abbas fired at the deceased which too hit the deceased on the chest; that thereafter all of the accused ran away while firing in the air.

 

3.      The first one to be arrested was the co-accused Adyal Shar. He was granted bail on 03-10-2014 by the trial court. The co-accused Bilawal Shar and the applicant Habibullah were arrested after the bail of Adyal, the latter (Habibullah) being arrested on 23-04-2015. Co-accused Abdul Fateh is said to have died in the meantime. Co-accused Ali Raza and Ghulam Abbas are still absconders.

 

4.      That the applicant Habibullah’s application for post-arrest bail was declined by the trial court vide order dated 07-06-2017 primarily on the ground that the prosecution had by then examined the complainant (Haq Nawaz) and the PWs (Mohammad Juman and Mohammad Urs) who had implicated Habibullah in the commission of the offence.  

 

5.      The bail was opposed by the complainant’s counsel, whose submissions have been discussed and addressed infra. The bail was not opposed by the learned DPG who provided valuable assistance and cited the cases of Muhammad Shafi v. The State (2016 SCMR 1593), Nisar Ahmed v. The State (2014 SCMR 27) and Mitho Pitafi v. The State (2009 SCMR 299) to address the points raised by the complainant’s counsel. 

 

6.      The grant of bail to the co-accused Adyal Shar was essentially on grounds that the role assigned to him in the FIR was only of instigation and that he was of 70 years of age. Thus, the case of the applicant is not at par with that of the co-accused Adail Shar, and the rule of consistency relied upon by the applicant’s counsel can hardly be invoked to advance the case of the applicant.

 

7.      Except that the applicant was present with a firearm alongside the other co-accused, no specific role has been assigned to him. Neither the FIR, nor the deposition of the complainant (Haq Nawaz PW 1), nor the deposition of the eye-witness Mohammad Urs (PW 3) attribute to the applicant (Habibullah) any shot fired upon the deceased. The deposition of the other eye-witness, Muhammad Juman (PW 2) that the applicant (Habibullah) too fired at the deceased which hit him on his chest, contradicts PW1 and PW 2 and creates doubt, especially when it has yet to be conclusively established whether the said eye-witness arrived at the scene of the crime after the shots had been fired or before. The learned DPG too questioned such contradictory, rather improved statement of the PW 2 who is the brother of the complainant. He further pointed out that per the post-mortem report, the deceased sustained six firearm injuries and not three firearm injuries as alleged in the FIR and the depositions. Though in the FIR and his deposition the complainant states that other villagers too had also reached the scene at the time of the incident, the names of such villagers are not mentioned.

 

8.      Admittedly, the applicant Habibullah is the brother of the co-accused Bilawal Shar and Abdul Fateh who had fired at the deceased. Thus spreading the net wide by the complainant party to falsely entangle Habibullah in the said crime is a possibility which cannot safely be ruled out at this stage. The trial has commenced and statements of the main prosecution witnesses have been recorded and thus, physical custody of the applicant is no longer required at this stage. His continued incarceration is not likely to serve any beneficial purpose. For all these reasons, and for the reasons discussed in para 7 above, I find that the case against the applicant calls for further inquiry into his guilt and thus falls within the purview of subsection (2) of section 497, Cr.P.C.

 

9.      It was vehemently argued by the learned counsel for the complainant that the applicant was an absconder and thus not entitled to the discretion of bail. But, in the case of Muhammad Shafi v. The State (2016 SCMR 1593) it has been held by the Supreme Court of Pakistan that in a case calling for further inquiry into the guilt of an accused person, bail is granted to him as of right and not by way of grace or concession, and “....while it may be true that sometimes bail is refused to an accused person upon his having remained a Proclaimed Offender but at the same time it is equally true that such refusal of bail proceeds primarily upon a consideration of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right, the latter must prevail.”  In the case of Mitho Pitafi v. The State (2009 SCMR 299), where the courts below had refused bail on the ground that the applicant had remained a fugitive from law, the Supreme Court of Pakistan while granting him bail held that “It is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail.”

 

10.    As regards the contention of the complainant’s counsel that in a murder case where trial has commenced, the rule is to refrain from deciding the bail application on merits and instead order for expediting the trial; such contention stands answered by the case of Nisar Ahmed v. The State (2014 SCMR 27) wherein the Supreme Court of Pakistan has held that the rule that in a murder case where trial has commenced the Court should refrain from deciding the bail application on merits, that is a rule of propriety and practice and cannot be taken as a bar for the grant of bail if an accused has made out a case for the same. The learned counsel for the complainant had placed reliance on the case of Muhammad Nawaz v. The State (2002 SCMR 1381) to contend that it was practice in a murder case to refuse bail where trial had commenced; however that case is distinguishable for the reason that in that case it was the applicant’s side that had sought numerous adjournments and was not cooperating in the conclusion of trial.

 

11.    Having concluded as above that the case calls for a further inquiry into the guilt of the applicant Habibullah within the meaning of sub-section (2) of Section 497 Cr.P.C, Cr. Bail Application No.S-151/2013 is allowed and the applicant Habibullah is admitted to bail in Crime No.151/2013 in terms of the short order dated 14-06-2018. Needless to state that the observations made herein are tentative and are not to be used to prejudice or advance the case of any party at trial. It is further observed that if the applicant in any manner tries to misuse this bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.

 

 

JUDGE