THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Application No.1336 of 2019

Criminal Bail Application No.1337 of 2019

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Date                      Order with Signature of Judge

 

Applicant (in         :         Saifullah   son    of   Muhammad   Ashraf,

Cr. Bail Appln.               through  Mr.  Farjad  Ali Khan, Advocate.

No.1336/2019)

 

Applicant (in         :         Mumtaz   Akbar   son   of   Zarwar  Khan,

Cr. Bail Appln.               through Mr. Farjad Ali Khan, Advocate.

No.1337/2019)

 

Respondent          :         The State through Mr. Abrar Ali Khichi,

Additional Prosecutor General, Sindh.

 

Complainant        :         None present for complainant though

served.

 

Date of hearing     :         26.09.2019

 

Date of decision    :         26.09.2019

 

O R D E R

 

Abdul Maalik Gaddi, J.  Through this common order, I intend to dispose of the captioned bail applications, as these bail applications relate to the same FIR. By means of these bail applications, the applicants seek post-arrest bail in case Crime No.331 of 2019 registered at police station Docks, under Sections 322/34 PPC.

 

2.       The allegations against the applicants/accused are that on 27.08.2019 at about 07:30 p.m. complainant Zeeshan Ahmed Durrani son of Iftikhar Ahmed Khan recorded his statement under Section 154, Cr.P.C. stating therein that on 27.08.2019 at about 04:00 pm, he was informed by the principal of Habib Public School that an accident took place with his child namely Usman Ahmed Durrani in swimming pool and asked him to immediately reach at South City Hospital. It is stated that at about 04:15 pm, complainant reached at South City Hospital, where he was informed by the doctor that his child has died and child was brought dead to hospital. It is also stated that Usman Ahmed aged 11 years had a swimming class, swimming classes were scheduled once a week, and the incident occurred with his son namely Usman Ahmed at swimming pool at about 03:15 pm at the Habib Public School in the presence of swimming coaches/teachers, i.e. Mumtaz Akbar son of Zarwar Khan and Saifullah son of Muhammad Ashraf. It is further stated that his son died due to drowning in the swimming pool due to negligence and incompetency of school principal, coaches, and administrator of Habib Public School.

 

3.       Learned counsel for the applicants/accused argued that applicants are innocent and have been falsely implicated in this case; that the applicants/accused are serving at Habib Public School in the capacity of assistant to head swimming coach and joined the school on 01.03.2013 and 14.10.2014 respectively; that the applicants/accused are highly skilled and trained professional, who have not only represented the department of WAPDA in national games in multiple swimming competitions, but also have an unblemished career; that applicants/accused are behind the bars, meaning thereby within police custody and are subject to severe trauma and anxiety; that no specific role has been assigned to the applicants/accused by the complainant, rather has wrongly been implicated in the FIR. In support of his contentions, learned Counsel for the applicants/accused has relied upon the case laws reported as 2007 YLR 2832 [Mukhtiar Hussain Shah v. The State]; 2017 YLR Note 339 [Ghulam Ali v. The State]; 2005 YLR 1968 [Tariq Mehmood v. The State]; 2012 YLR 1889 [Muhammad Shahzad v. The State and another]; 2012 P.Cr.L.J. 1102 [Abdul Shakoor and 3 others v. The State]; and 2018 YLR Note 283 [Ameer Khan v. The State] and prayed for grant of bail to the applicants/accused.

 

4.       On the other hand, learned Additional Prosecutor General, Sindh vehemently opposed the bail applications of applicants/accused on the ground that applicants/accused are nominated in FIR; that there is no malafide or enmity pointed out by the learned Counsel for the applicants/accused against the complainant to falsely involve the applicants/accused in instant FIR; that deceased medical available on record; that matter is under investigation, hence, prayed for the dismissal of bail applications.

 

5.       None present for the complainant though served. Vide order dated 24.09.2019, time was also granted to complainant to engage his Counsel of his own choice, but today, none appeared on his behalf.

 

6.       I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.

 

7.       It is an admitted position that case has been challaned and these applicants/accused are no more required for investigation. As per record, the only allegations against the applicants/accused are that they are responsible for the offence, as alleged in the FIR as well as in charge sheet. It appears that the applicants/accused have been challaned under Sections 322/34, PPC. Section 322, PPC though non-bailable, yet is not punishable with any period of imprisonment besides payment of Diyat. It is yet to be determined, whether the punishment of payment of Diyat amount, would bring the case of the applicants within the compass of prohibitory clause attached to Section 497(1), Cr.P.C. or whether the Section 322, PPC, would be applicable in the present case. It is not shown by the learned Additional Prosecutor General, Sindh for the State that whether punishment of payment of Diyat would correspond to sentence of imprisonment exceeding seven (7) years or more. As in that view of the matter the bail pleas of the applicants would have been considered from a different aspect. Under Section 497, Cr.P.C. an offence punishable with ten (10) years imprisonment or more only falls within prohibitory clause of this Section.

 

8.       It is the case of applicants that they did not commit any offence, as stated in FIR, but has been implicated in this case by the local police in collusion with the complainant malafidely just to show their efficiency. Be that as it may, at this stage of the case, without entering into deep merits of the case, one cannot be kept in jail or sent to jail for a matter, which still requires further probe as to whether it was an offence of `Qatl-e-Khata`/ `Qatl-e-bis-sabab` or intentional act of the accused. In these view of the matter, I am of the view that the accused charged in such like situation would be entitled to concession of bail under Section 497(2), Cr.P.C. on the point of further inquiry. In this connection, I am supported with the case of Yousaf Khan v. The State (2000 P.Cr.L.J. 203) and Syed Asif Mateen Zaidi and 3 others v. The State (2008 P.Cr.L.J. 125).

 

9.       Nothing on record that these applicants/accused are previously convict or remained indulge in such type of activities. As per record, they are in jail since their arrest, therefore, under the aforementioned facts and circumstances of the case, further detention of the applicants/accused in this case would not serve the purpose.

 

10.     In view of the aforesaid case laws, I have come to the conclusion that applicants/accused are entitled for concession of bail. Accordingly, I allow the captioned bail applications. Consequently, the applicants/accused are granted bail, subject to their furnishing solvent sureties in the sum of Rs.3,00,000/- [Rupees Three Lac only] each and PR Bonds in the like amount, to the satisfaction of trial Court.

 

11.     It is made clear that above observations are tentative in nature and would not be influenced the trial Court while deciding the case of applicants on merits. It is also made clear that in case, if the applicants/accused misuse the concession of bail during trial, then trial Court would be competent to cancel the bail of the applicants/accused without making any reference to this Court.

 

12.     As per police papers, this is very unfortunate incident, which has been allegedly occurred inside the school swimming pool in which one innocent student has lost his life; under the circumstances, trial Court is directed to proceed the matter expeditiously and decide the same, preferably, within the period of three (3) months. No unnecessary adjournment shall be granted to either side and compliance report be submitted to this Court through MIT-II for perusal.

 

          These bail applications stand disposed of. Office is directed to immediately sent the copy of this order to trial Court for information and compliance.

 

 

Faizan A. Rathore/PA*                                                                            JUDGE