IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

1^st Crl. Bail  Application No. S- 594 of 2023.

Applicant              :  Mashooque Ali Khakhrani,  

                                through Mr. Ghulam Rasool M. Narejo, Advocate.

Respondent           :  The State, through Mr. Ali Anwar Kandhro,

                                Additional Prosecutor General.

Complainant         :  Mst. Nadra Khatoon present in person.

Date of hearing     :  29.01.2024.

Date of Order        :  29.01.2024.

O R D E R

Muhammad Saleem Jessar, J.-        Applicant seeks his release on bail in FIR bearing Crime No.17/2022, registered at P.S K.T. Mumtaz, District Larkana, for offence under Sections 302, 452, 148, 149, 506/2, 337-H(2), PPC.  The case has been challaned, which is now pending for trial before the Court of Additional Sessions Judge, Ratodero.

            2.         After having been declined the concession of post arrest bail by the trial Court/ Additional Sessions Judge, Ratodero vide order dated 07.6.2023, the applicant has approached this Court with same plea.    

            3.         According to the case of prosecution, on 26.10.2022, at about 8.00 a.m., in the house of complainant Mst. Nadra Khatoon situated in Own Houses near Village Shahani, Taluka Ratodero, seven accused persons, which included applicant Mashooque Ali, committed murder of Dadan Ali Khakhrani, husband of complainant, by making fires upon him, wherein applicant Mashooque Ali shown with DBBL Gun allegedly made aerial firing along with other accused persons.   

            4.         Process issued against complainant has been returned duly served and the complainant Mst. Nadra Khatoon has appeared along with mashir Manthar Ali.

5.         Learned Counsel for the applicant submits that per FIR the role attributed to applicant is that he along with co-accused made aerial firing and he is not alleged to have caused any injury to deceased or any of the PWs, even nothing incriminating has been recovered from him during investigation. He next submits that though the applicant was arrested by police on 18.11.2022, and formal charge has been framed by the trial Court on 17.5.2023, but even then not a single witness has been examined by the prosecution before the trial Court. He further submits that main role of causing injuries to deceased Dadan Ali is assigned to co-accused Dost Ali and Pir Bux Khakhrani, out of whom Dost Ali having been murdered therefore, his name has been struck off from the prosecution case, while Pir Bux is absconding; hence, submits that case against the applicant requires further enquiry, therefore, he may be enlarged on bail.  In support of his contentions, he places reliance upon the cases reported as Muhammad Irfan v. The State (2014 ASCMR 1347), Attaullah v. The State (2020 SCMR 451) and Jahanzeb v. The State  (2021 SCMR 63).

6.         Learned DPG appearing for the State opposes the bail application, on the ground that applicant is nominated in the FIR, besides, he has facilitated the co-accused in committing murder of deceased; hence, is not entitled to concession of bail.

            7.         Complainant Mst. Nadra Khatoon present in person opposes the grant of bail to the applicant, on the ground that due to involvement of their witnesses in another case they are not in a position to appear and record their evidence in this case before the trial Court.

            8.         In rebuttal, learned Counsel for the applicant submits that since co-accused Dost Ali was murdered, therefore, they have implicated the witnesses shown in instant case.

            9.         Pursuant to directions contained in the previous order, the trial Court has submitted progress report in respect of Sessions Case No.313/2023, re-The State v. Mashooque Khakhrani & others, which reveals that charge against the accused was framed on 17.5.2023; however, only complainant has been appearing and remaining witnesses are not appearing, therefore, case is not proceeding.

            10.       No doubt, the applicant is nominated in the FIR with a gun; however, mere role of making firing in air has been alleged against him and no overt act or injury to deceased or any of the PWs has been attributed to him. The applicant is in custody for last more than 14 months, but the prosecution has not examined any witness before the trial Court. Nothing incriminating is shown to have been recovered from the applicant. It is settled law that one cannot be kept behind the bars for indefinite period without progress in trial, as expeditious trial is fundamental right of every under trial prisoner. The accusation is to be determined after recording evidence at trial and at this juncture as well as in view of dicta laid down by the Apex Court in above-mentioned reported cases cited by learned Counsel for the applicant, his case requires further enquiry, as envisaged under sub-section (2) to Section 497, Cr.P.C.

            11.       Consequently and in view of above, instant bail application is allowed. The applicant is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Hundred Thousand) and P.R. Bond in the like amount to the satisfaction of trial Court.

                                                                                                                        JUDGE                      

Qazi Tahir PA/*