IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.675 of 2019
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
FOR HEARING OF BAIL APPLICATION
Date of hearing: 28.5.2019
Date of Order: 28.5.2019
Mr. Muhammad Afzal Gudaro, advocate for applicant
Mr. Zahoor Shah, Deputy Prosecutor General
ORDER
Abdul Maalik Gaddi, J. Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.99/2019 registered under Sections 302/322/34 PPC at P.S. Ibrahim Hyderi, Karachi. Now the applicant Imran son of Saeed ul Haq is seeking his release on bail through instant bail application.
2. The facts of the prosecution case as per FIR are that SIP Abdul Mastan of PS Ibrahim Hyderi, Karachi recorded 154 CrPC statement of complainant Abdul Raheem at cold storage Jinnah Hospital, which was incorporated in this FIR, wherein he stated that his sister Shafiqa aged about 18 years, three months ago solemnized Nikah with Imran. His sister Shafiqa teaching in a private school. She went to school for teachers meeting from her house and from where she went with her husband Imran. At 04:00 PM, mother of Imran informed him on telephone that his sister Shafiqa had stomach/ abdomen ache, they took her Jinnah Hospital, where she expired. After few moments, mother of Imran took the dead body of Shafiqa at his house through ambulance. After inquiry complainant came to know that his deceased sister was pregnant and her husband took her to Ujala Clinic Bhittai Colony for abortion and due to the carelessness and negligence of doctors and staff of said clinic his sister had died. Therefore, he reported the matter against his brother in law Imran, owner of clinic Uzama Sheikh, Doctor Sumaira @ Tabassum and Farzana, who wanted to illegally aborted and during such abortion his sister had died. Hence this FIR.
3. It is argued by learned counsel for applicant that applicant/ accused is innocent and falsely implicated in this case; that FIR is delayed by 24 hours; that there is no specific role has been assigned by the complainant against the accused; that applicant/ accused is husband of deceased Mst. Shafiqa and entered into marriage on 11.01.2019 with the will and wish of the sister of the complainant and his wife, who were not agree and happy towards the marriage of the applicant and deceased sister of the complainant but after Nikah, the applicant meet many time with the deceased at the house of the complainant; that after registration of FIR, challan was submitted under Section 322 of PPC, which is though non bailable but according to him the punishment provided in the relevant law is payment of Diyat amount as per existing notification in this regard; that the applicant is behind the bars since his arrest, therefore, under these circumstances, applicant may be released on bail.
4. Complainant Abdul Raheem son of Noor-uz-Zaman, who is the brother of deceased Mst. Shafiqa is present, has filed a statement (compromise deed) and recorded his no objection if the accused be enlarged on bail. Father of deceased namely Noor-uz-Zaman is also present, he has also recorded his no objection if the applicant/ accused is granted bail.
5. Learned Deputy Prosecutor General in view of the statement of complainant has also recorded his no objection for allowing this bail application.
6. I have heard the learned counsel for parties at some length and perused the record so made available before me.
7. It appears from the record that the challan against the applicant/ accused has been submitted before trial Court under Section 322 of PPC for which punishment is only Diyat amount. Although the offence punishable under section 322 of PPC is punishable with Diyat only but in the schedule-II of Criminal Procedure Code, 1898, the offence punishable under Section 322 of PPC has been placed in column 5 as not bailable. The term “bailable offence” and “non-bailable offence” have been defined in section 4 clause (b) in the following manner:
(i) In this Code the following words and expression have the following meanings unless a different intention appears from the subject or context;
(ii) “Bailable Offence”, “Non-bailable offence”. “Bailable offence” means an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force, and “Non-bailable offence” means any other offence.
8. No doubt, an accused person who is charged with an offence of non-bailable nature cannot claim his release on bail as a matter of right but as observed above, in this matter complainant and father of the deceased are present and they have recorded their no objection, if the applicant/ accused is released on bail, after furnishing his surety. No exceptional circumstances appear in this case to withhold the bail of the applicant. Learned Deputy Prosecutor General has also recorded his no objection. Under these circumstances, refusal of bail to the applicant would not serve the purpose.
9. I, in view of the above facts and circumstances, admit the applicant/ accused on bail after his furnishing solvent surety in the sum of Rs.40,000/- and PR bond in the like amount to the satisfaction of trial Court.
10. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings, the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant without making any reference to this Court but as per law.
Judge
asim/pa