THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.649 of 2019

Applicants                 :           (1) Gulab Mahesar  (2) Afzal Hussain &

(3) Asif Riaz through Malik Khushhal Khan, Advocate

Complainant            :            Noor Muhammad Khan through Mr. Noor Marjan Khattak, advocate

Respondent               :           The State through Mr. Ali Haider Saleem, DPG

Date of hearing         :           05.8.2019

Date of Order            :           05.8.2019

ORDER

Abdul Maalik Gaddi, J: Applicants/ accused are present on interim pre-arrest bail granted to them by this Court vide Order dated 08.5.2019. Today this bail application is fixed for confirmation or otherwise.

2. Brief facts of the case are that complainant Noor Muhammad Khan son of Sharif-ur-Rehman registered the FIR bearing crime No.441/2019 under Section 322 & 34 PPC at PS KIA against the applicants/ accused by stating therein that on 20.07.2018 at about 05:45 p.m., his younger brother namely Mustaqeem Khan was taking tea at new Subhan Quetta Hotel situated at Sector-5, KIA, Plot No.112/2, where the wire of the KESC fell down upon his brother due to which his brother sustained injuries. Later on, his brother was taken to the hospital where he was expired. Complainant stated that his brother has died due to negligence of applicants/ accused.

3.  Learned counsel for applicants contended that applicants are innocent and have been falsely implicated in the instant FIR. He submitted that FIR was belatedly registered by the complainant, which is false, motivated and based on malafide intention to harass and humiliate the applicants. He further contended that no specific role has been assigned to the applicants in the commission of the alleged offence. He also submitted that there is no admissible evidence available against the applicants to show that they were responsible for the alleged offence or the incident took place at the behest of the employees of KESC/ KE. Learned counsel further submitted that on the day of alleged incident, there was heavy rain in Karachi, which had paralyzed the life of city and caused major damage to infrastructure of KE, which was an act of God and beyond the control of applicants. He further submitted that the complainant and PWs are not eye-witnesses of the incident and the entire evidence is based on hearsay, which is not admissible under the law, as such, he was of the view that the interim order already extended in favour of the applicant may be confirmed.

4. Learned DPG assisted by learned counsel for complainant has opposed this bail application on the ground that there was rain on the day of incident but due to non-maintenance, there were broken electric wires on the place of incident. He submitted that due to the gross negligence of the applicants, the fallen wires were not repaired for hours. He submitted that the applicants are responsible for the alleged offence, as the youngman, brother of complainant namely Mustaqeem Khan son of Sharif-ur-Rehman was electrocuted due to the broken wires of the electric poles.

5. I have heard the learned counsel for the parties at a considerable length and have gone through the case papers so made available before me.

6. It appears from the record that the alleged incident was taken place on 20.7.2018, whereas FIR was lodged on 15.4.2019 by complainant Noor Muhammad Khan, after the delay of about 08 months, for which no satisfactory explanation has been furnished, as such, it is yet to be determined at the time of trial whether the incident took place in a fashion as alleged in FIR or otherwise. The case and claim of the complainant is that the applicants were responsible for the alleged offence, as the brother of complainant was electrocuted due to broken wires of electric poles, hence an FIR under Sections 322 and 34 PPC was registered against the applicants/ accused. Case has been challaned. These applicants/ accused are no more required for investigation. It is stated by the learned counsel for the applicants/ accused that a Civil Suit bearing No.1120/2019 for recovery of compensation has also been filed by the legal heirs of deceased Mustaqeem Khan against KE Limited and present applicants/ accused, which is pending before the Senior Civil Judge, Karachi (East). Photocopy of Death Certificate of deceased available on record at page 39-A of the case file, does not show that any postmortem was conducted of deceased to determine the cause of death. No eye-witness has been cited in the FIR to witness the event.

7. As per case papers, the case has been challaned under Section 322 and 34 PPC. Section 322 PPC though non-bailable yet is not punishable with any period of imprisonment besides the payment of Diyat. It is yet to be determined whether punishment of payment of Diyat amount, would bring the case of the applicant within the compass of the prohibitory clause attached to section 497(1), CrPC or whether Section 322 PPC would be applicable in the present case. It is not shown by the learned counsel for the State whether punishment of payment of Diyat would correspond to sentence of imprisonment exceeding seven years or more.

8. As observed above, punishment provided for the offence under Section 322 PPC is only Diyat and under Section 319 PPC in addition to Diyat punishment as Taazir was five years imprisonment. Law on the point was silent as to whether the punishment of Diyat would fall under the prohibitory clause of Section 497 CrPC or not. One could not be kept in jail or sent to jail for a matter which still required further probe as to whether it was an offence of qatl-e-khata/ qatl-e-bissabab or an intentional act of accused.

9. I, accordingly, in view of what I have observed above, confirm the interim order already extended in favour of the applicants/ accused on same terms and conditions with direction to applicants/ accused to appear before the trial Court to face the trial.  

10. Before parting with the order, I would like to make it clear that any observation in this order is tentative in nature and shall not effect the merits of the case as well as merits of civil suit.

11. It may be mentioned here that in case during proceedings before trial Court, if applicants misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this court.

12. As observed above, case has been challaned, therefore, trial Court is directed to proceed the matter expeditiously and decide the same as per law preferably within a period of 02 months after receipt of this Order and its compliance report be submitted to this Court through MIT-II. No unnecessary adjournments shall be granted to either side.

In view of the above, this bail application is allowed in above terms.

       JUDGE

asim/pa