ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-277 of 2019

 

Date

               Order with signature of Judge

           

                                                                 

                 

 

Applicant:                               Badal Waryah through

                                                Mr. Amanullah G. Malik, Advocate.

 

 

Respondent:                            The State through

                                                Mr. Aftab Ahmed Shar, Add. P.G.

 

 

Date of hearing  10th June 2019.

                 

 

 O R D E R

 

Adnan-ul-Karim Memon, J:-   The Applicant namely Badal is seeking post-arrest Bail in crime No.12/2017, registered at Police Station Kandhra, for offences punishable under section 302, 147, 148, 149, 34 PPC, read with section 7 of ATA.

2.         The gist of allegations against the Applicant is that on 26.03.2017, he fired upon the  brother of complainant, namely Subal, which hit him on his left hand and other accused person also fired upon his brother. Per complainant, his brother succumbed to the injuries.

3.            Mr. Amanullah G. Malik, learned Counsel for the Applicant has contended that Applicant is innocent and has been falsely implicated in the present case by complainant due to previous enmity; that there is delay of 12 ˝ hours in lodging the FIR, which has not been  explained; that co-accused Allah Wadhayo and Saeed have been granted Bail before arrest by the learned trial Court in similar circumstances, therefore the rule of consistency applies in this case; that per FIR the specific role of firing upon the deceased is attributed  to co-accused Bashir @ Basho, Sharif @ Sulleman; that  per Post Mortem Report of the deceased,  the death was caused due to injuries No.1 and 2, while injury attributed to present Applicant is on the left hand of the deceased which is non-vital part of the body, therefore benefit of doubt  can be extended to him at the bail stage as to whether the applicant is liable for vicarious liability or otherwise; that case of the Applicant falls within the purview of section 497(2) Cr.P.C; that during the course of investigation, the names of present Applicant and co-accused Sharif @ Suleman, Saeed and Allah Wadhayo were kept in column No.II of the charge sheet as such the case of Applicant re  quires further enquiry into his guilt; that the direction of this Court as contained in the order dated 17.9.2018  has not been complied with by the learned trial Court, which amounts insubordination thus cause grave prejudice to the case of the Applicant;  that expeditious trial is the right of the Applicant; that the matter of the Applicant has not been decided by this court on merit. He lastly prayed for allowing the instant Bail Application.

4.            On the other hand, learned Addl. Prosecutor General has opposed the Bail application contending that the Applicant has been nominated in the heinous offence of Murder with specific role of firing as such he is not entitled for concession of Bail.

5.          While deciding the instant post arrest Bail Application, I have noticed that this Court vide order dated 17.9.2018 passed in Bail Application No 487  of 2018 dismissed the Bail Application of the present Applicant as not pressed with the following observations:-

   “Learned counsel for the applicant after arguing at some length, submits that he will be satisfied and will not press instant criminal bail application, if trial court is directed to decide the case expeditiously preferably within 03 months.

 

    Such proposal is not objected by learned APG.

 

    In view of the above, instant criminal bail application is dismissed as not pressed. However, trial court is directed to decide the case preferably within 03 months and submit monthly progress report of the case with the Additional Registrar of this Court.”

 

6.          During the course of the arguments the learned Counsel for the Applicant has drawn my attention to the Order dated 05.01.2019 passed by learned trial Court, whereby the Bail Application moved by the Applicant in Sessions Case No.369 of 2017 was declined on the premise that his earlier Bail Applications had already been rejected on merit, therefore no fresh ground has been created to claim benefit arising out of that ground.

7.         The learned trial Court in order to elaborate the direction given to it by this Court vide order dated 17.9.2018 in the aforesaid matter made an abortive attempt as follows:-

“1. Per file in hand prior to this, the post arrest bail application filed by the present applicant was dismissed as not pressed by this court without permission for filing fresh one vide order dated 09.05.2018 and thereafter second bail application of the same nature filed on his behalf was also dismissed by this court vide order dated 17.08.2018 and this is the third bail application on the ground that the prosecution has failed to examine even a single witness despite order dated 17.09.2018 passed by the Honourable High court of Sindh Bench at Sukkur for disposal of the case within three months.

2. Per file in hand on 29.09.2018 this court received copy of order dated 17.09.2018 passed in Cr.B.A.No.S – 487/2018 Re.Badal Vs. the state in respect of dismissal of bail application by the Honourable High Court of Sindh Bench at Sukkur with direction to trial court to decide the case preferably within 03 months and to submit such monthly progress report of the case with the Additional Registrar of the court.

3. Per file in hand on 12.12.2018 this court received copy of order dated 07.12.2018 in respect of dismissal of Cr.Transfer application No.S- 123/2018 for non prosecution.

4. Per file in hand this court submitted first monthly progress report as ordered vide office letter No.2003/2018 dated 29.10.2018, secondly monthly report vide letter No.2293/dated 29.11.2018 and third monthly progress report vide letter No.40 dated 04.01.2019.

5. Per file in hand on 10.10.2018 complainant had appeared in this court and sought adjournment on the ground of filing of transfer application by him  but thereafter none of P.Ws including complainant appeared in this court fill today.

6. However, under attending circumstances I am of the firm view that mere failure of prosecution to examine P.Ws in this case per-se does not entitle the present applicant/accused for concession of post-arrest bail in a murder case and he has failed to make out his case for grant of bail.”

 

8.            Be that as it may, I am not persuaded to agree with the aforesaid reasoning of the learned trial Court for the reason that this Court directed the learned trial Court to record evidence of the material witnesses within a period of three months. The learned trial Court instead of compliance of the Order of this Court, prima-facie has ignored the same.

9.           This Court while invoking its Supervisory Jurisdiction under Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973 does not endorse the impugned action of the learned trial Court which is in violation of strict command of Article 203 of the Constitution.

10.         In such circumstances of the case, I am of the view that the direction given by this Court in bail matters may not be taken lightly in future. Now it is well settled law that: To have a speedy trial, is the fundamental right of accused being universally acknowledged. Under the Criminal Procedure Code, smooth methodology and scheme for speedy trial, is provided whether it is held by the Sessions Court or Magistrate, in recognition of the said right of an accused person. This principle shall apply more vigorously to the trials before Sessions Courts, constituted under the law, so that unnecessary delay, much less shocking one in its conclusion is avoided in all circumstances. Any unreasonable or shocking delay in the conclusion of the trial, before Sessions courts, would amount to denial of justice, or to say, denial of fundamental rights, to the accused, of speedy trial. My view is supported by the decision rendered by the Hon’ble Supreme Court of Pakistan in the case of Imtiaz Ahmed vs. The State            (2017 SCMR 1194).

11.        Reverting to the merits of the case, it is well settled law that once Bail Application of the Applicant is dismissed by this Court on any ground, he can only apply for post arrest bail before this Court on fresh ground, if any, available to him under the law. I am fortified with the decision rendered by the Hon’ble Supreme Court of Pakistan in the case of Muhammad Aslam v. the State & others (PLD 2015 SC 41). Record does not reflect that any fresh ground has been shown by the Applicant to claim concession of post arrest Bail in murder case.

12.         That the instant Bail Application has been filed by the Applicant on the strength of non-compliance of the direction issued by this Court to the learned trial Court alone without any other fresh ground. Prima-facie the Applicant has not agitated the ground of statutory delay before the learned trial Court at the first instance, therefore at this stage; he has to first apply for Bail on the aforesaid ground, before the learned trial court as the offence under Section 302 PPC is punishable with life imprisonment and death sentence. And, third proviso of sub-section (1) of Section 497 provides statutory period of two years, whereas the Applicant has failed to avail the benefit of the aforesaid proviso, therefore, Applicant’s assertion is totally misconceived.

13.        In view of the above facts and circumstances, the Applicant has failed to make out a case for grant of post arrest bail on fresh ground. Therefore, the instant Bail Application is dismissed.

14.        I have noticed that the learned trial Court has not explained the position properly at paragraph 1 of the impugned order dated 05.01.2019 regarding direction passed by this Court vide order dated 17.9.2018 in the matter under discussion. The learned trial Court has not considered the ground of delay in conclusion of the trial. Record does not reflect that the trial is in progress as per report submitted by the learned Trial Court, which needs serious attention of the learned trial Court and decide the Bail matter of the Applicant in accordance with law, keeping in view the direction issued by this Court, which shall not be ignored.

15.        From the forgoing, the learned Trial Court, once again is directed to record evidence of the witnesses within a period of two months, where-after the Applicant will be at liberty to move fresh Bail Application before the learned Trial Court on fresh ground if any and the learned trial Court shall decide the same on merit, keeping in view the judgment rendered by the Hon’ble Supreme Court of Pakistan in the case of Imtiaz Ahmed Vs. The State, through Special Prosecutor ANF, (2017 SCMR 1194) and observation made by this Court in the preceding paragraph.

16.        It is expected from the learned trial Court that the direction of this Court, particularly in the Bail matters shall be adhered to in future and valid reasons are to be assigned, if the trial is not concluded within the stipulated time.

17.      The observation made hereinabove is tentative in nature, so far as merit of the case is concerned, which shall not prejudice the trial Court.

18.      The instant Bail Application stands disposed of in the above terms.

                                             

                                                                                                                 JUDGE