IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Bail Application No.S-803 of 2021
|
Date
of hearing |
Order with signature of Judge |
For hearing of bail
application.
O R D E R.
14-02-2022.
M/s Abdul Rasheed
Kalwar and Khan Muhammad Sangi
advocates for applicant.
M/s Ubedullah Ghoto
and Naeemuddin Chachar advocates for
complainant.
Mr. Aftab Ahmed Shar,
Additional P.G for the State.
AMJAD ALI SAHITO, J – By this order, I intend to dispose of
the instant post arrest Crl. Bail Application moved on behalf of
application/accused Kashif Khan Niazi in Crime No.47 of 2021, offence u/s 302,
114, 3324, 148, 149 PPC registered at Police Station Reti, District Ghotki. Prior
to this, the bail application of the applicant/accused has been declined by
learned Additional Sessions Judge/(MCTC), Ubauro vide orders dated 06-12-2021,
hence this bail application.
2. The
details and particulars of the FIR are already available in the bail
application and FIR, therefore same could be gathered from the copy of FIR
attached with such application.
3. It
is, inter-alia, contended by learned counsel for the applicant/accused that applicant/accused
is innocent and has falsely been implicated in the FIR; that the alleged
incident took place on 02-09-2021 and the FIR was lodged on 03-09-2021 with the
delay of about one day; that after registration of FIR firstly the
investigation was conducted by SIP Ghulam Muhammad Chachar and then the
investigation was entrusted to Ghulam Ali Jummani DSP Complaint Cell, DIG
Officer Sukkur and as per his recommendation, name of applicant/accused Kashif
Hussain and co-accused Ibrar, Fida Hussain, Maqbool, Babar alias Ali Khan were
placed in column No.II of the challan; that infact the complainant party
attacked upon the accused party on 29-08-2021, resultantly, Babar, Maqbool,
Israr, Ibrar and applicant/accused Kashif Khan received serious injuries at the
hands of complainant party, then applicant/accused Kashif Khan was shifted to
Rahim Yar Khan Hospital and then he was referred to JPMC Karachi for better
treatment, where he was admitted on 01-09-20221 at about 12-00 pm in ward No.
12 as indoor patient and remained under treatment. In this regard learned
counsel for the applicant/accused along with statement files copy of letter
dated 10-11-2021 issued by DSP Complaint Cell, Sukkur Range for verification of
admission of patient/applicant/accused Khasif Khan, Verification received from
Jinnah Postrgraduate Medical Centre, final medical certificate of
applicant/accused and other relevant documents, which are taken on record and
after relying upon the all the documents it is crystal clear that
applicant/accused had received injuries and at the time of alleged incident he
has admitted in the hospital; that on 02-09-2021 Altaf Shaikh the driver of the
applicant/accused was going to Rahimyar Khan, the complainant party attacked
upon him resultantly, the driver became injured and then the complainant party set
on fire the car and Parado belongs to the applicant party; hence he is entitled
for the concession of bail on the plea of alibi. He placed his reliance on the
cases reported as Gul Khan Vs. Asghar
Khan and another (2013 P.Cr.L.J 1318) and
Zaigham Ashraf Vs. The State and others(
2016 SCMR 18).
4. On the other hand
learned APG for the State assisted by learned counsel for the complainant
vehemently opposed for grant of bail on the ground that name of the
applicant/accused transpired in the FIR with specific role as he has fired from
his pistol upon Muhammad Pannah, the brother of complainant, who has lost his
life, hence applicant/accused is not entitled for concession of bail. Learned
counsel for the complainant has relied upon case of Qurban Ali and another Vs. The State (PLD 2014 Sindh 538) Alam Khan Vs. The State and others (2021 MLD 1541)
5. I have heard the
learned counsel for the parties and perused the record.
6. Admittedly the murderous enmity exists
between the parties and such cases have been registered by both the parties
against each other. The FIR is lodged with the delay of about one day of the
incident. Learned counsel for the applicant/accused has taken the plea of alibi
that at the date and time of incident, applicant/accused was not available at
the place of incident, but he being injured was admitted at JPMC Karachi. In
this regard learned counsel for the applicant/accused produced such record,
which shows that he/applicant/accused was admitted as indoor patient in JPMC Hospital
Karachi. Today learned counsel for the applicant/accused has filed documents
along with statement and copy of letter dated 10-11-2021 issued by DSP
Complaint Cell, Sukkur Range for verification of admission of
patient/applicant/accused Khasif Khan, Verification received from Jinnah
Postrgraduate Medical Centre, final medical certificate of applicant/accused,
photographs and other relevant documents, which are taken on record. After
going through all the above mentioned documents, it appears that on the date
and at the time of incident, the applicant/accused was admitted in JPMC
Hospital Karachi being indoor patient. The Medical Officer Taluka Hospital
Daharki issued final medical certificate dated 31-08-2021, which indicates that
he has received four injuries. Moreover, the DSP Complaint Cell Sukkur Range,
after conducting impartial investigation has recommended the name of applicant
to be placed in column No. II of the challan, but such summary was not accepted
by learned Magistrate.
7. The plea of alibi taken by learned counsel
for the applicant/accused has not been disbelieved by the prosecution rather it
was accepted after due verification of the record of Jinnah Postgraduate
Medical Centre Karachi and after considering such record by the investigating
agency, the name of applicant/accused was placed in column No. II of the
challan. It is yet to be determined at the time of trial as to whether the
applicant/accused was available at the place of incident on the date and time
of occurrence or not when the evidence will be recorded before the trial Court.
In case of Zaighan Ashraf (supra), the
Hon’ble Supreme Court has held as
under:-
“There is no hard and fast rule that plea of alibi shall not be
considered at bail stage because while granting or refusing to grant of bail to
an accused, the court was not required to see and consider the material
collected in favour of the prosecution, but also had to given attention to the
defence plea taken by an accused person”.
8. Further curtail the
liberty of a person is a serious step in law, therefore, the Judges shall apply
judicial mind with deep thought for reaching at a fair and proper conclusion
albeit tentatively however, this exercise shall not to be carried out in vacuum
or in a flimsy and casual manner as that will defeat the ends of justice
because if the accused charged, is ultimately acquitted at the trial then no
reparation or compensation can be awarded to him for the long incarceration, as
the provisions of Criminal Procedure Code and the scheme of law on the subject
do not provide for such arrangements to repair the loss, caused to an accused
person, detaining him in Jail without just cause and reasonable ground.
Therefore, extraordinary care and caution shall be exercised by the Judges in
the course of granting or refusing to grant bail to an accused person, charged
for offence(s), punishable with capital punishment. The Courts are equally
required to make tentative assessment with pure judicial approach of all the
materials available on record, whether it goes in favour of the Prosecution or
in favour of the defence before making a decision. Reliance is placed on case
of Zaigham Ashraf (supra).
9. Moreover, learned
counsel for the applicant pleaded malafide on the part of complainant that due
to previously enmity over the matrimonial affairs, the present applicant is
booked in this case. At bail stage only tentative assessment is to be made. The
case has been challaned and the applicant/accused is in jail and he is no more
required for further inquiry. In the unreported case of Jahanzeb Khan Vs. The State through A.G KPK and others Criminal
Petition No.594/2020, the Hon’ble Supreme Court of Pakistan has held that;
“4.....Petitioner’s
continue detention is not likely to improve upon investigative process, already
concluded, thus, he cannot be held behind the bars as a strategy for
punishment. A case for petitions’ release on bail stand made out.
7. In
view of above discussion, learned counsel for the applicant/accused has made
out a good case for grant of bail in the light of sub section (2) of Section
497 CrPC, hence the instant bail application is allowed, applicant/accused is
admitted to bail subject to furnishing his solvent surety in the sum of Rs.
200,000/- (Two lacs) and P.R bond in the like amount to satisfaction of learned
trial Court. If applicant/accused misuses the concession of bail, then trial
Court is at liberty to take action against him. The facts and circumstances of
the case law relied upon by learned counsel for the complainant are quite
distinguishable from the case in hand, hence same are not helpful while
deciding the instant bail application.
8. Needless
to mention that the observations made hereinabove are tentative in nature and
would not influence the Trial Court while deciding the case of the applicant on
merits.
Judge
Nasim/P.A