ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Appln. No. S – 497 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

1. For orders on office objection at flag ‘A’

2. For hearing of bail application

10.09.2018

Mr. Qurban Ali Malano Advocate for the Applicant

Syed Sardar Ali Shah Rizvi, DPG for the State

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Through instant bail application, the applicant/accused Qaim S/o Godho Dondoh has sought post-arrest bail in Crime No.62 of 2012 registered with police station Wasti Jiwan Shah for offences punishable under Sections 302 & 311 PPC.

2. The facts as per FIR registered by ASI Muhammad Hajan Gadani at Police Station Wasti Jiwan Shah, are that on the date of incident, during patrolling in the area, he received a spy information that accused Qaim would murder his sister namely Mst. Marai in his house with false allegation of illicit relations with one Yasin, hence on receipt of such information, they diverted towards the pointed place and at about 0030 hours (night) reached near the house of accused Qaim, they saw on the light of vehicle that a woman while crying emerged from the street leading towards the house of accused Qaim while accused Qaim having Kalashnikov was chasing her and ultimately in presence of the police, he fired Kalashnikov shot upon the said woman which hit her, as such, while crying she fell down and in the meanwhile another woman coming behind Qaim and grappled him and accused also made Kalashnikov shot upon her, she also fell down on the ground. The accused Qaim while taking the advantage of obscurity escaped along with his Kalashnikov. Thereafter both the victim women were identified by their father Godho Dhondho namely Mst. Marai aged about 22/23 years whereas another namely Mst. Sabahi aged about 30 years. The complainant party saw that Mst. Marai had firearm injury on her right shoulder through and through, she was dead, while another injured Mst. Sabahi had firearm injury on her left side cheek, bleeding, she was injured. Thereafter the dead body and injured were brought at Civil Hospital Ghotki where the postmortem of deceased Mst. Marai was conducted and injured Mst. Sabahi due to serious condition, was referred to Sukkur, but she succumbed to the injuries on the way. The dead bodies were handed to Godho for funeral purposes and the police party waited for arrival of complainant, but nobody turned up, hence the FIR was registered on behalf of the State.

3. It is pertinent to mention that the case against the applicant was proceeded before the trial Court and vide judgment dated 25.08.2017 he was sentenced to death and was also directed to pay compensation of Rs.200,000/- to the legal heirs of the two deceased except Godho and in default thereof shall suffer imprisonment for a period of 06 months. The said judgment was impugned through Criminal Jail Appeal No.D-17/2017, Cr. Appeal No.D-119/2017 before this Court and the case appeals were proceeded and vide judgment dated 24.07.2018 passed by Division Bench of this Court thereby set aside the impugned judgment and case was remanded back to the trial Court for recording evidence of PW-2 SIP Muhammad Hajjan afresh and too in presence of the advocate for the applicant. If applicant engages his advocate then he may be allowed to do so. If applicant does not engage advocate then advocate on State expenses shall be provided to him to defend and thereafter the statement of the accused under Section 342 Cr.P.C shall be recorded afresh in accordance with law. It was further observed that the applicant would be at liberty to apply for bail before the trial Court.

4. Learned counsel submits that the applicant is innocent and he has been falsely implicated in this case and previously the applicant was granted pre-arrest bail by the Court of Sessions Judge Ghotki and he was all along on bail, faced the trial and on announcement of judgment of conviction he was taken into custody. He further contends that applicant has not misused the concession of bail and does not want to remain fugitive from law, whereas, the conclusion of trial would take time, since the applicant was on bail during earlier round of trial, hence he deserves the same treatment. He in support of his contentions has relied upon the cases reported as 1972 PLD (SC) 277; 1981 SCMR 629; 1988 MLD 581; 1989 PLD (SC) 347; 1991 P Cr.LJ 65; 1991 P Cr.LJ 746; 1993 P Cr.LJ 1491; 1995 P Cr.LJ 544; 1998 P Cr.LJ 362; 2012 SCMR 68; 2012 SCMR 997 and 2014 SCMR 07.

5. Learned Deputy Prosecutor General has conceded for grant of bail to the applicant on the ground that if a heavy surety amount may be fixed.

6. I have heard the learned counsel for the applicant and learned DPG for the State and have gone through the record.

7. It is borne out from the record that at the time of judgment the applicant was on bail and after grant of bail, he never misuse the concession of bail and at the time of announcement of judgment the applicant was taken into custody for the purposes of the implementation of sentence and being aggrieved impugned the judgment dated 25.08.2017 passed by trial Court before this Court by way of filing of Appeal No.D-117/2017, after hearing the parties, the learned Division Bench of this Court set aside the judgment and the case was remanded back to the trial Court for recording the evidence of PW-2 SIP Muhammad Hajjan afresh and in the presence of the advocate, at that time learned counsel for the applicant requested for grant of bail on the ground that during trial the applicant was remained on bail, but he was directed to apply for bail before the learned trial Court while passing the judgment, the learned Division Bench ordered that a copy of judgment be sent Mr. Malik Muhammad Akhtar, Additional Sessions Judge with advise to be careful in future. In compliance of Court orders, the applicant moved bail application before the trial Court, but learned trial Judge instead to decide bail application the learned Presiding Officer try to clarify his position as observed by learned Division Bench while passing the judgment and finally dismissed the bail application.

8. It is an admitted position that during trial the applicant has remained on bail and never misused the concession of bail and further no objection raised by learned D.P.G by submitting that heavy amount of surety may kindly be fixed. A tentative assessment of all the above factors and material available on record makes the case of applicant one of further enquiry in terms of Sub-section (2) of Section 497 Cr.P.C. Accordingly, the instant bail application stands allowed and the applicant is admitted to bail upon furnishing a solvent surety in the sum of Rs.500,000/- (Five Lac) and P.R bond in the like amount to the satisfaction of trial Court.

Judge

ARBROHI