ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. S-03 of 2009.  

Date of hearing

Order with signature of Hon’ble Judge

FOR HEARING.

                        Mrs. Leela @ Kalpana Devi, advocate for the applicant.

                        Mr. Naimatullah Bhurgri, State Counsel.

13.05.2009 O R D E R.

KHADIM HUSSAIN M. SHAIKH,J.:-Through this application, applicant seeks post arrest bail in Crime No.32/2003 PS Waleed for offence U/Sec. 302, 34 P.P.C.

                        Prosecution case, in nutshell, is that on the day of incident i.e. 01.06.2003 complainant accompanied with P.Ws: Ali Murad and Riaz were going to town, when they reached near Ghar-Wah bridge at G.T Road, Larkana they saw accused Sikandar s/o Gul Khokhar and Shoukat s/o Pathan Kori alongwith one unknown person having pistols in their hands. It is alleged that they by getting down Gul Khan from Qingqi fired 7/8 times straight at Loung Khan, which hit him, which raising cry fell down. Then all the three accused ran away raising slogans towards eastern side, then they found Loung Khan lying dead having injuries on different parts of his body. Then complainant leaving P.Ws: to guard the dead body of deceased Loung Khan appeared PS and lodged his F.I.R.

                        Earlier co-accused Shoukat Ali alias Shoukoo and Asghar Ali alias Ali Asghar were arrested and they were sent up with the challan to face their trial and present accused was shown as absconder in the challan. Accused Sikandar Ali was arrested on 06.02.2007 and then he was sent up with the subsequent challan to stand his trial. Co-accused Shoukat and Asghar Ali have already been admitted to bail by the learned Trial Court on the ground of hardship and the affidavits sworn by complainant and P.Ws: exonerating them from the charge and raising no objection for grant of bail to them as is evidence from the bail order dated 25.08.2007, which has been placed on record on 11.03.2009 that is to say after filing of this bail application. The application moved on behalf of the applicant before the learned Trial court has been rejected vide order dated 01.12.2008. One of the ground urged before the Trial Court was that the complainant and two eyewitness namely Ali Murad and Riaz Hussain alongwith mashir Khuda Bux had filed their affidavits exonerating the present accused of the charge. Today learned Advocate for the applicant filed affidavits of one Mohammad Ramzan s/o Late Loung Khan, the son of deceased in this case and affidavit of Mst. Anwar Begum w/o Late Loung Khan (widow of deceased), both are present in court and they also exonerate the applicant of the charge and state that they have no objection if the applicant Sikandar Khokhar is enlarged on bail.

                        Learned Advocate for the applicant presses this bail application on the ground of affidavits and so also on the ground of hardship, per her accused has remained in custody for more than two years continuously, but not a single prosecution witness has been examined by the learned Trial court till date. She places her reliance on the case of M Najeeb Vs. The State 2009 SCMR-448. In the said case apex court granted bail to the accused holding that complainant initially had nominated the accused in the F.I.R, but later on through an affidavit he had expressed his satisfaction with regard to the innocence of accused and did not want to proceed with the matter. Holding further that courts below had failed to consider the said aspect of matter. Case of Mohammad Nawaz alias Najja Vs. The State 1991 SCMR-111. In this, the bail was allowed to the applicant solely on the ground that prosecution witnesses appeared in the court and supported the averments mad by them in their affidavits to the effect that accused was not implicated in the occurrence.

                        Learned state counsel concedes to the grant of bail, stating that the prosecution witnesses as well legal heirs namely Mohammad Ramzan and Mst. Anwar Begum, who are present in court have no objection and so also in the light of case law quoted at bar by learned counsel for the applicant.

                        I have considered the arguments advanced by the learned counsel for the parties and have also gone through material placed before the court, I find that earlier four affidavits were sworn before learned Trial Court by complainant Talib Hussain, eyewitnesses Ali Murad and Riaz Hussain and so also mashir Khuda Bux and they all have raised no objection to the grant of bail. Moreover legal heirs namely m Ramzan and Mst. Anwar Begum, who are present in court, they have filed their affidavits reiterating the same averments before the court have raised no objection to the enlargement of applicant on bail. In view of the dictum laid down by the apex court in the case of Mohammad Nawaz alias Najja vs. The State and Mohammad Najeeb vs. The State supra, and so also no objection raised by the prosecution witnesses and legal heirs I am inclined to grant bail to the applicant Sikandar Ali. Therefore bail is granted to the applicant in the sum of Rs.300,000/- (Three lacs) subject to his furnishing solvent surety and P.R bond in the like amount to the satisfaction of learned Trial court.

                        The bail app is disposed of in the above terms.

JUDGE