IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail A. No. S-391 of 2017
|
Date |
Order with signature of Judge |
For
hearing of bail application
Date of hearing: 08-06-2018
Date of Order: 14-06-2018
Mr. Sohail Ahmed Khoso, Advocate for applicant ;
Mr. Bashir Ahmed Shar, Advocate for complainant;
Mr. Sardar Ali Shah Rizvi, DPG
.-.-.-.-.-.-.-.-.-.-.-.
Adnan Iqbal Chaudhry
J. – Cr.
Bail Application No.S-391/2017 for post-arrest bail was allowed by short order
on 14-06-2018 in the following terms:
“For reasons to be recorded later on, applicant
Habibullah son of Adyal Shar is granted bail in Crime No.151/2013 of P.S. Faiz
Gunj, District Khairpur, subject to furnishing solvent surety in the sum of Rs.
300,000/- (three lacs) and PR bond in the like amount to the satisfaction of
trial court.”
The
reasons for grant of bail are as follows.
1. On 27-10-2013, six accused persons namely (i)
Bilawal Shar, (ii) Abdul Fateh, (iii) Ali Raza, (iv) Habibullah (all sons of Adyal
Shar), (v) Ghulam Abbas, and (vi) Adyal Shar were nominated in Crime No.151/2013
at P.S. Faiz Gunj, District Khairpur, under Sections 302 (qatl-i-amd), 148 (rioting with deadly weapon), 149, 114, 337-H(2)
(rash or negligent act) of the P.P.C., causing the death of Qutubuddin (the
deceased victim). The complainant Haq Nawaz is the father of the deceased
victim.
2. Per the FIR, a few days prior to the
incident, the accused Bilawal Shar had exchanged hot words with the deceased on
the ground that the deceased had allegedly verbally abused Adyal Shar who was
the father of Bilawal Shar; that when the complainant and the deceased were
returning to their village on the fateful day, they were confronted by the aforesaid
six accused all of whom were bearing fire-arms; that Adyal instigated the
murder of the deceased; that as a result of the commotion, Mohammad Juman and
Mohammad Urs (brother and nephew respectively of the complainant) and other villagers
came running to the scene; that on seeing the arrival of others, the accused Bilawal
Shar fired at the deceased which hit the deceased on his chest; that the
accused Abdul Fateh fired at the deceased which hit him on the chest; that Ghulam
Abbas fired at the deceased which too hit the deceased on the chest; that
thereafter all of the accused ran away while firing in the air.
3. The first one to be arrested was the
co-accused Adyal Shar. He was granted bail on 03-10-2014 by the trial court. The
co-accused Bilawal Shar and the applicant Habibullah were arrested after the
bail of Adyal, the latter (Habibullah) being arrested on 23-04-2015. Co-accused
Abdul Fateh is said to have died in the meantime. Co-accused Ali Raza and
Ghulam Abbas are still absconders.
4. That the applicant Habibullah’s application
for post-arrest bail was declined by the trial court vide order dated
07-06-2017 primarily on the ground that the prosecution had by then examined
the complainant (Haq Nawaz) and the PWs (Mohammad Juman and Mohammad Urs) who
had implicated Habibullah in the commission of the offence.
5. The bail was opposed by the complainant’s
counsel, whose submissions have been discussed and addressed infra. The bail was not opposed by the
learned DPG who provided valuable assistance and cited the cases of Muhammad
Shafi v. The State (2016
SCMR 1593), Nisar Ahmed v. The State
(2014 SCMR 27) and Mitho Pitafi v. The State (2009 SCMR 299) to address the points raised by
the complainant’s counsel.
6. The grant of bail to the co-accused Adyal
Shar was essentially on grounds that the role assigned to him in the FIR was
only of instigation and that he was of 70 years of age. Thus, the case of the
applicant is not at par with that of the co-accused Adail Shar, and the rule of
consistency relied upon by the applicant’s counsel can hardly be invoked to
advance the case of the applicant.
7. Except that the applicant was present with
a firearm alongside the other co-accused, no specific role has been assigned to
him. Neither the FIR, nor the deposition of the complainant (Haq Nawaz PW 1),
nor the deposition of the eye-witness Mohammad Urs (PW 3) attribute to the
applicant (Habibullah) any shot fired upon the deceased. The deposition of the
other eye-witness, Muhammad Juman (PW 2) that the applicant (Habibullah) too
fired at the deceased which hit him on his chest, contradicts PW1 and PW 2 and
creates doubt, especially when it has yet to be conclusively established
whether the said eye-witness arrived at the scene of the crime after the shots
had been fired or before. The learned DPG too questioned such contradictory,
rather improved statement of the PW 2 who is the brother of the complainant. He
further pointed out that per the post-mortem report, the deceased sustained six
firearm injuries and not three firearm injuries as alleged in the FIR and the
depositions. Though in the FIR and his deposition the complainant states that
other villagers too had also reached the scene at the time of the incident, the
names of such villagers are not mentioned.
8. Admittedly, the applicant Habibullah is
the brother of the co-accused Bilawal Shar and Abdul Fateh who had fired at the
deceased. Thus spreading the net wide by the complainant party to falsely
entangle Habibullah in the said crime is a possibility which cannot safely be
ruled out at this stage. The trial has commenced and statements of the main
prosecution witnesses have been recorded and thus, physical custody of the
applicant is no longer required at this stage. His continued incarceration is
not likely to serve any beneficial purpose. For all these reasons, and for the
reasons discussed in para 7 above, I find that the case against the applicant
calls for further inquiry into his guilt and thus falls within the purview of
subsection (2) of section 497, Cr.P.C.
9. It was vehemently argued by the learned
counsel for the complainant that the applicant was an absconder and thus not
entitled to the discretion of bail. But, in the case of Muhammad
Shafi v. The State (2016
SCMR 1593) it has been held by
the Supreme Court of Pakistan that in a case calling for further inquiry into
the guilt of an accused person, bail is granted to him as of right and not by
way of grace or concession, and “....while
it may be true that sometimes bail is refused to an accused person upon his
having remained a Proclaimed Offender but at the same time it is equally true
that such refusal of bail proceeds primarily upon a consideration of propriety.
It goes without saying that whenever a question of propriety is confronted with
a question of right, the latter must prevail.” In the case of Mitho Pitafi v. The
State (2009 SCMR 299), where the courts below had refused bail on
the ground that the applicant had remained a fugitive from law, the Supreme
Court of Pakistan while granting him bail held that “It is well-settled
principle of law that bail can be granted if an accused has good case for bail
on merit and mere absconsion would not come in way while granting the bail.”
10. As regards the contention of the
complainant’s counsel that in a murder case where trial has commenced, the rule
is to refrain from deciding the bail application on merits and instead order
for expediting the trial; such contention stands answered by the case of Nisar
Ahmed v. The State (2014
SCMR 27) wherein the Supreme Court of Pakistan has held that the rule that in
a murder case where trial has commenced the Court should refrain from deciding
the bail application on merits, that is a rule of propriety and practice and
cannot be taken as a bar for the grant of bail if an accused has made out a
case for the same. The learned counsel for the complainant had placed reliance
on the case of Muhammad Nawaz v. The
State (2002 SCMR 1381) to contend that it was practice in a murder case to
refuse bail where trial had commenced; however that case is distinguishable for
the reason that in that case it was the applicant’s side that had sought
numerous adjournments and was not cooperating in the conclusion of trial.
11. Having concluded as above that the case
calls for a further inquiry into the guilt of the applicant Habibullah within
the meaning of sub-section (2) of Section 497 Cr.P.C, Cr. Bail Application
No.S-151/2013 is allowed and the applicant Habibullah is admitted to bail in
Crime No.151/2013 in terms of the short order dated 14-06-2018. Needless to
state that the observations made herein are tentative and are not to be used to
prejudice or advance the case of any party at trial. It is further observed that if
the applicant in any manner tries to misuse this bail, it would be open for the
trial Court to cancel his bail after issuing him the requisite notice.
JUDGE