ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-744 of 2010
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
10.01.2011.
1. For orders on office objection.
2. For hearing.
Mr. Ahmed Hussain Khoso, advocate for applicant/accused.
Mr. Imtiaz Ahmed Shahani, State Counsel.
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Being aggrieved and dissatisfied by order dated 14.12.2010 passed in Crl. Bail Application No.222/2010 by the learned Additional Sessions Judge, Kandhkot, in crime No.103/2008, registered under Sections 302, 324, 148, 149, PPC, at Police Station Karampur, whereby the bail application of the applicant was dismissed, the applicant has approached this Court for seeking bail.
The facts relevant for the purposes of disposal of the instant bail application and the prosecution story, as stated in the F.I.R., is that on 28.08.2008, at 08.00 a.m., at the land of complainant Ali Khan Bijarani situated in Deh Khariro, Taluka Tangwani, District Jacobabad, the present applicant/accused Ghulam Nabi alongwith co-accused Taj Muhammad, Abdul Hameed, Ubedullah, Lakhan, all by caste Bijarani, and two unidentified persons, being armed with guns, on the instigation of accused Sain Bakhsh Bijarani, allegedly committed murder of deceased Sharbat, brother of complainant, and caused injuries to complainant Ali Khan and his cousin Beewar, by making fires upon them.
It is, inter alia, contended by the learned Counsel for the applicant that the applicant is innocent and has been falsely implicated in the instant crime alongwith his three brothers and other co-accused persons to damage their reputation and cause injury to the entire family of the applicant. Per learned Counsel, as per contents of F.I.R., the role assigned to the applicant/accused is only to the extent of causing injury to the complainant on his shoulder, which as per M.L.O. report dated 28.10.2008 has been declared as “Jurh Ghayr Jaifah Hashimah” and “Jurh Ghayr Jaifah Mutalahimah”, which offence does not fall within prohibitory clause and is bailable. It is further submitted that the applicant has voluntarily surrendered himself before the learned trial Court, who, instead of considering his request on merits, has declined bail to the applicant on the grounds that since the parties are related to each other and the applicant is also related to co-accused, who are involved in the main offence, whereas one of the accused has caused death of deceased Sharbat and the applicant has remained absconder. Learned Counsel further submitted that the learned trial Court failed to appreciate that the role of the applicant is entirely different and distinguishable from the role assigned to co-accused persons, therefore, his case was required to be considered on merits instead of technicalities. Learned Counsel submitted that no recovery has been affected from the applicant/accused and the applicant is residing at the given address and was not informed about the alleged crime, nor the police had ever attempted to arrest him, whereas he has voluntarily surrendered himself before the learned trial Court, which fact has been ignored by the learned trial Court. In support of his contentions, he has placed reliance on the following cases :-
(i) Farzand Ali v. Taj & 2 others, 2000 SCMR 1854,
(ii) Mitho Pitafi v. The State, 2009 SCMR 299,
(iii) Shafqat alias Shafoo v. The State, 2010 P.Cr.L.J. 304,
(iv) Maqsood v. The State, 2010 P.Cr.L.J. 600.
Conversely, the learned State Counsel has opposed the grant of bail to the applicant/accused on the ground that applicant was absconder and he alongwith other co-accused persons is involved in a heinous crime whereas specific role has been assigned, therefore, the applicant/accused is not entitled to the grant of bail.
I have heard learned Counsel for the applicant, learned State Counsel and perused the record.
On perusal of the contents of the F.I.R. and tentative assessment of the record, it appears that the role of the applicant/accused is different and distinguishable from the role assigned to other accused persons. It also appears that the applicant/accused has voluntarily surrendered himself before the learned trial court, who has not examined as to whether the applicant/accused was really a fugitive from law, or his non-appearance in Court was on account of some reasonable excuse. M.L.O. report also supports the contention of the applicant/accused, wherein the injury on the left shoulder to the complainant, having been allegedly inflicted by the applicant/accused, is declared as “Shajjah-e-Khafifah” and “Jurh Ghayr Jaifah Damiyah”, which is bailable and does not fall within prohibitory clause.
In view of hereinabove facts, the allegation against the present applicant cannot be considered as free from doubt and require further enquiry into the matter. As regards declining bail to the applicant/accused on the ground of absconsion, the Hon'ble Supreme Court in the case of Mitho Pitafi (supra) has held that bail could be granted, if accused had good case for bail on merits, and mere absconsion would not come in his way while granting him bail.
I am of view that the applicant/accused has made out a case for grant of bail. Accordingly, the applicant/accused vide short order passed today in Court was admitted to bail subject to furnishing surety in the sum of Rs.200,000/- with P.R bond in the like amount to the satisfaction of the learned trial Court, and these are the reasons for such short order.
It is clarified that if the applicant/accused misuses the concession of bail, the trial Court shall be at liberty to proceed for the cancellation of the bail as per law.
Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observations and shall decide the case on the basis of available record and evidence produced.
JUDGE