IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 311 of 2021

Applicant : Ghulam Mustafa S/o Muhammad Yousif, Korai

Through Mr.Shafique Ahmed Khan Leghari, Advocate

Complainant: Shafaqat Ali

Through Mr. Qurban Ali Memon Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG for the State

Dated of hearing: 16.08.2021

Date of order : 16.08.2021

O R D E R

AMJAD ALI SAHITO, J – Through this bail application, the applicant/accused seeks post-arrest bail in Crime No.342 of 2019 registered at Police Station Moro, District Naushahro Feroze for offences punishable under Sections 302, 114 and 149 PPC. The bail plea of the applicant/accused has been declined by learned Additional Sessions Judge (Hudood), Sukkur vide order dated 22.05.2021.

2. The details and particulars of the FIR are already available in the bail application and FIR, therefore same could not be gathered from the copy of FIR attached with such application.

3. It is contended by learned counsel that the applicant/accused is innocent and has falsely been implicated in this case by the complainant infact the applicant/accused is the victim of enmity between complainant and Korai community over the agricultural lands; that there is inordinate and unexplained delay of one day in lodgment of the FIR for which no plausible explanation has been furnished by the complainant; that the alleged incident is unseen one, as the SHO Police Station, Moro has sent the dead body of the deceased Liaquat Ali to Medical Superintendent, PMCH Shaheed Benazirabad for keeping in morgue / mortuary room (Sardkhana) till the arrival of his relatives / legal-heirs, which clearly shows that the complainant and witnesses were not available at the relevant date and time of alleged incident; that nothing incriminating has been recovered from the possession of the applicant/accused, whereas, the kalashnikov life rifle has been foisted upon him at the instance of complainant just to strengthen the case; that the applicant/accused in the aforesaid circumstances is entitled for grant of bail on the point of further enquiry.

4. Learned counsel for the complainant and learned DPG for the State prayed for dismissal of instant bail application by contending that the name of the applicant/accused is specifically mentioned in the FIR with the role that he has made direct fire upon deceased Liaquat Ali; that the ocular version furnished by the complainant and P.Ws is fully supported by the medical evidence; that the applicant/accused has actively participated in the commission of the offence, which entails capital punishment, therefore, he is not entitled for concession of bail.

5. I have heard the learned counsel for the applicant/accused, learned counsel for the complainant and learned DPG for the State and perused the record. Admittedly, the name of the applicant/accused is mentioned in the FIR with specific role that he made direct fire from his Kalashnikov type rifle which hit the deceased Liaquat Ali on his abdomen, resultantly who died at the spot. The ocular version as setout in the FIR by the complainant and P.Ws is fully supported by the medical evidence. The weapon i.e. Kalashnikov type rifle used in the commission of the offence has been recovered from the applicant/accused. During pendency of this bail application, the progress report was called from the learned trial court. As per progress report the trial is in progress and trial Court has examined three witnesses, whereas other witnesses are in attendance. At this stage any observation will prejudice the case of either party. In this regard, I am fortified by the case of Noor Sultan v. The State (2021 SCMR 176), wherein the Honourable Supreme Court dismissed the bail plea of an accused. The operative part of aforesaid order is as under;-

“….. when it is stated at bar that the trial has commenced and two prosecution witnesses has already been recorded by the learned trial Court. In such like situation, this Court has already enunciated the principles in (1980 SCMR 203) “Muhammad Sadik and others v. The State” (1990 SCMR 307), “Allah Ditta and others v. The State” and (2007 SCMR 1793) “ Gul Akbar v. The State”. The observation made in 2007 SCMR 1793 is as under;

“It is to be noted that challan of the case has already been submitted, trial commenced and case is fixed for recording of prosecution evidence for 26.07.2007. The petitioner may move an application for bail before the learned trial Court. We are deliberately withholding our comments on merits of the case to avoid possibility of causing prejudice against any party. By now it is well settled that “it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles.”

6. The offence with which the applicant/accused is charged entails capital punishment therefore, in such circumstances, the applicant/accused has not been able to make‑out a case for grant of bail. Consequently, the instant bail application being devoid of merits is dismissed. However, the learned trial Court is directed to expedite the matter and conclude the same preferably within 60 (sixty) days.

7. The observations made hereinabove are tentative in nature and will not prejudice the case of either party at the trial.

Judge

ARBROHI