ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
1st Cr. Bail Appln. No.S-256 of 2023.
Date of hearing Order with signature of Judge.
1.For orders on office objection.
2.For hearing of bail application.
Applicant : Through Miss Rizwana Jabeen Siddiqui, Advocate.
(Sobdar Khoso)
The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.
Complainant : Present in person.
(Ghulam Qadir Khoso)
Date of hearing : 22.02.2024.
O R D E R.
MUGHAMMAD SALEEM JESSAR- J.- Through this application, applicant seeks his admission on post arrest bail in Crime No.106 of 2020 registered with P.S Mehar, District Dadu, for offences under Sections 302, 324, 114, 148, 149 and 337-H(2), PPC. Applicant filed post arrest bail application before the trial Court/1st Additional Sessions Judge, Mehar vis-à-vis Cr. Bail Appln. No.372 of 2020, where, after hearing the parties, his request was turned down vide order dated 10.04.2023, hence this application has been maintained.
2. Since the facts of the prosecution case are already mentioned in the FIR as well as bail application and the order passed by trial Court, therefore, there is no need to reproduce the same.
3. Learned Counsel for the applicant submits that role attributed to him is that he allegedly fired a shot upon deceased Abdullah which landed on his shoulder; however, such injury was not found in medical evidence. She further submits that specific role of causing firearm injury to deceased Abdullah is assigned to co-accused Iqrar Khoso, who too is in custody. She adds that per case diaries, the co-accused have been seeking adjournments on one or other grounds, therefore, the applicant may not be burdened with the delay being caused by the co-accused; hence, she submits that by granting this application, applicant Sobdar Khoso may be extended concession of bail. In support of her contentions, she places her reliance upon following case laws:
1. Ali Akber v. The State and another ( 2020 SCMR 1225),
2. Shaukat Ali v. Ghulam Abbas and others (1998 SCMR 228)
4. Learned Addl. P.G., appearing for the State, opposed the application, on the ground(s) that the applicant has been assigned specific role of causing injury to deceased. As far the contention that the injury attributed to him is not available in the medical evidence is concerned, he submits it amounts to deeper appreciation which cannot be considered at this stage. He further submits that the trial has commenced and the complainant as well as one of the P.Ws have been examined and some formal witnesses including officials remain to be examined. Learned Addl. P.G. submits that accused and his counsel are seeking adjournments on one or other pretext; hence, no ground of hardship, as claimed, is made out. He therefore prays for dismissal of bail application. In support of his contentions, he has relied upon case of Major Rtd. Mohammad Iftikhar Khan v. The State and another (2022 SCMR 885) and Mohammad Ali v. The State and another (2023 SCMR 1131).
5. Mr. Safdar Ali Ghouri while holding brief for Mr. Asif Ali Soomro, counsel for the complainant, opposed the bail application and drawn attention of the Court towards order dated 27.11.2023 and submitted that this is third bail application and prior to this, the bail application filed by the applicant before this Court was dismissed on merits and said order was not assailed, hence it attained finality. He also submits that co-accused Iqrar had filed Criminal Petition No.26-K of 2022 before the Apex Court, which was dismissed as not pressed in terms of the esteemed order dated 25.04.2022, available at page No.121 of Court file. He, therefore, submits that it will be appropriate for the applicant to proceed with the trial instead of pressing this application, as once the trial has commenced, grant of bail to the accused in capital charge would prejudice the case of prosecution; hence, prays for dismissal of the bail application.
6. Heard learned Counsel for the respective parties and perused the material made available on record.
7. So far merits of the case are concerned, the applicant has no case for grant of bail, as initially after dismissal of bail application of the applicant by the trial Court, he had approached this Court with the same request, which in terms of order dated 13.09.2021 was turned down. Subsequently, after rejection of his bail application again by the trial Court, he had again approached this Court vide Criminal Bail Application No.S-498 of 2022; however, same was dismissed as not pressed vide order dated 03.11.2022 with direction to the trial Court to expedite the trial proceedings and conclude the same within 60 days. The applicant then approached the trial Court for his release on bail, inter alia, on the ground of hardship and non-compliance of directions of this Court passed in order dated 03.11.2022, which also was dismissed by the trial Court by means of order dated 10.4.2023; whereafter, applicant has filed this bail application on the ground of hardship only. In this scenario of the matter, I deem it appropriate to reproduce the relevant portion of the order dated 10.4.2023 of the trial Court, whereby the bail application of the applicant filed on hardship ground has been rejected, which reads as under:-
“6. From the perusal of the record it reflects that there is no denial of two earlier post arrest bail applications of applicant/accused were dismissed on merits. Moreover, it appears that all arguments of learned counsel for applicant were dealt with while deciding first and second bail applications of applicant/accused. It is by now well settled that an accused can maintain a subsequent bail application, at post arrest stage, only on the strength of a fresh ground, accused after dismissal of his first plea. In the case reported as the State through Advocate General NWFP Versus Zubair Ahmed and 4 others (PLD 1986 SC-173) the Hon’ble Supreme Court has held that second or the subsequent bail application to the same court shall lie only on a fresh ground namely a ground which did not exist at the time when the first application was made, however, in the present case learned counsel for the applicant has failed to point any fresh ground which was not available to the applicant at the time of filing of his previous bail application. During arguments, learned counsel for the applicant pointed out that Honourable High Court of Sindh was pleased to issue direction to dispose of the case within specified time, as such, the applicant is entitled to bail on this ground alone. I am unable to subscribe to such submission of the learned counsel for the applicant. Record reveals that the trial has not been completed yet as delay regarding not proceeding the case is on the part of accused side and not by prosecution side, therefore, such plea raised by learned counsel has got no force. Moreover, non-compliance of such directions issued to the trial Court to conclude the trial within some specific time cannot be considered as valid ground for grant of bail to an accused, being alien to the provision of section 497, Cr.P.C. Reliance can be placed on case reported as Nisar Ahmed Vs the State and others (PLD 2016 SC-11).”
8. Learned Counsel, during arguments, has failed to point out from the case diaries of the trial Court that the delay in conclusion of trial was on the part of prosecution or the observations of the trial Court with regard to such delay caused by the accused is contrary to the record; as such, instead of repeating the bail application, the applicant should prefer to proceed. As a result of above, no case for grant of bail to the applicant on the ground of hardship appears to have been made out. Consequently, instant bail application is dismissed.
JUDGE