IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Present:

Shamsuddin Abbasi, J.

Agha Faisal, J.

 

CP D 176 of 2024                :           Abdul Majeed Talani vs.

Province of Sindh & others.

 

For the Petitioner                 :           Mr. Muhammad Afzal Jagirani, Advocate

for Mr. Muhammad Ibrahim Lashari

 

For respondent No.6           :           Mr. Abdul Rehman Mughal, Advocate.

 

For official Respondents    :           Mr. Abdul Hamid Bhurgri, Additional

Advocate General

 

Mr. Aitbar Ali Bullo, Deputy

Prosecutor General.

 

Date of hearing                    :           15.05.2024.

 

Date of order                         :           15.05.2024.

 

 

ORDER

 

 

Agha Faisal, J.         This writ petition, preferred per Article 199 of the Constitution[1], essentially sought a restraint upon 1st Additional Sessions Judge Jacobabad from proceeding with a bail application, if any. This Court granted such relief, as an interim measure, and by virtue thereof proceedings have been stayed in a criminal matter. Essentially, a person, said to be in critical condition suffering from obstructive hypertrophic cardio myopathy, has been prevented from exercising his right to seek bail, hence, prima facie depriving him of his fundamental rights inter alia per Articles 9, 10 and 14 of the Constitution.

 

2.            Briefly stated, the prayer clause sought the following relief:

 

“(a)             To declare that the medical opinion dated 01.03.2024 issued by the respondent No.4 in collusion with respondent Nos. 3, 5 and 6 is null and void as the same has been issued with malafide intention and ulterior motives.

 

(b)  To grant ad interim injunction, whereby restraining the respondent No.7 not to decide the second bail application of the accused/ respondent No.6 during pendency of this petition…”

 

3.            On the very first date of hearing the learned trial court was precluded from finally deciding the bail application, if any, and the order read as follows:

 

“Order sheet dated 11.03.2024.

 

      Learned counsel submits that respondent No.6 (Abdul Ghaffar son of Wazir Khan Kharani is nominated accused of F.I.R No. 55 of 2022 P.S Saddar, Jacobabad, under Sections 302 and 338-C P.P.C vide Sessions Case No.238 of 2022 re; State v. Saifal alias Saifo and others pending trial before learned 1st Additional Sessions Judge/ Model Criminal Trial Court Jacobabad. He further submitted that the case is fresh one and charge has been framed in the case, but the accused persons are avoiding to proceed with the main case instead pressing bail application on flimsy grounds by managing medical certificates etc., while violating normal procedure.

 

      Be that as it may, let notice be issued to the Addl. A.G., Addl. P.G and respondents for 19.03.2024, till then bail application, if any, filed on behalf of respondent No.6 shall not be finally decided. Call progress report of the case from learned trial Court.’

 

(Underline added for emphasis)

 

4.            On a subsequent date, being 03.04.2024, the interim order was continued in the following terms:

 

“Order sheet dated 03.04.2024.

 

      By order dated 11.03.2024, the trial Court/ 1st Additional Sessions Judge, Jacobabad was directed to submit progress report as well as status of the trial in respect of Sessions case No.238 of 2022 re; State v. Saifal alias Saifo and others; however, such report has not been placed before this Court. it is essential for smooth operations that Presiding Officer acts in a professional and timely manner to facilitate communications/ information as per the orders passed by the superior Courts. Delay does not inspire confidence. Therefore, we have no option but to hold the apprehension shown by the petitioner viz. respondent No.7 in absence of inaction on the part of the latter carries weight. Accordingly, office is directed to communicate coy of order to trial Court/ 1st Additional Sessions Judge/ M.C.T.C Jacobabad through its Sessions Judge for compliance. A copy of order shall be sent by fax to Sessions Judge, Jacobabad for compliance. To come up on 23.4.2023. Till then interim order passed earlier to continue.”

 

(Underline added for emphasis)

 

5.            The matter was not heard[2], hence, an urgency application was preferred and granted on 08.05.2024 and the order observed as follows:

 

“Order sheet dated 08.05.2024.

 

It appears that the respondent No.6 (Abdul Ghaffar) is facing trial in Sessions case No.238 of 2022 re; State v. Saifal alias Saifo Kharani and others, arisen out of F.I.R No. 55 of 2022 Police Station Saddar, Jacobabad. The complainant/ petitioner has maintained this petition with the prayer that opinion of medical board dated 01.3.2024 was issued in collusion with the accused, therefore, same may be declared as null and void. He further seek directions to trial Court not to decide second bail application moved on behalf of the accused/ respondent No.6 (Abdul Ghaffar) on medical ground.

 

      It further appears that this Court vide order dated 11.3.2024 restrained trial Court from deciding the bail application, if any, filed on behalf of accused/ respondent No.6, till decision of instant petition.

 

      Per office note the matter is already fixed on 15.10.2024. However, learned counsel for respondent No.6 has moved urgency application on the ground that the accused/ respondent No.6 is suffering from obstructive hypertrophic cardio myopathy; he is in critical condition and his proper treatment is not possible inside jail. In support of his contentions learned counsel referred the opinion of Special Medical Board available at page-41. Accordingly, the urgency application is allowed and matter is ante-dated and fixed on 15.5.2024 with notice to petitioner and intimation notice to his counsel.”

 

(Underline added for emphasis)

 

6.            Despite issuance of direct notice to the petitioner and Mr. Muhammad Ibrahim Lashari for today, they did not appear and instead Mr. Muhammad Afzal Jagirani carried the petitioner’s brief. He was confronted as to how the petition was maintainable in the first instance and furthermore how could an order be maintained under Article 199 of the Constitution prima facie vitiating sections 56 (d), (e), (i) and (j) of the Specific Relief Act 1877. Learned counsel articulated no cogent response on either count.

 

7.            As the matter stands today, a person, said to be in critical condition suffering from obstructive hypertrophic cardio myopathy, is restrained by this Court from exercising his right to seek bail from a trial court, seized of a criminal matter wherein the said person is alleged to be involved.

 

8.            It is settled law that this Court in the exercise of its writ jurisdiction does not delve into factual controversies requiring inquiry, evidence etc[3]. Therefore, while the admissibility and weightage of a medical opinion might be considered by a trial / appellate court, however, no case is apparent before us as to how the same merited interference via direct recourse to writ jurisdiction.

 

9.            The Supreme Court had illumined in Ghulam Muhammad[4], back in 1967, that if an offence had been committed justice required that it should be enquired into and tried by the competent forum. In the absence of a finding of guilt the accused had a right to be honorably acquitted by the competent court and vice versa. Abjuring the recourse to regular proceedings by deflection to the High Court was duly deprecated. Ghulam Muhammad was relied upon in Bajwa[5] and Aleem[6]and the Supreme Court considered refusal of the High Court to deflect the normal course of a criminal case, through exercise of writ jurisdiction, as salutary. Muhammad Afzal Zullah CJ., while, approving the authority cited supra, observed in Habib Ahmed[7] that if prima facie an offence had been committed, the ordinary course of trial, before the competent court, was not to be allowed to be deflected through an approach to the High Court. The august Supreme Court, while allowing an appeal against an order of the High Court, held in Sardar Khalid[8] that by allowing recourse to writ the High Court erred in law by short circuiting the normal procedure of law, while exercising equitable jurisdiction which is not in consonance with the law.

 

10.         The egregious aspect of this petition is that the petitioner seeks to denude a respondent from his right to seek bail in a criminal matter. The discretion to grant bail is that of the concerned court and any person aggrieved of orders passed may escalate the grievance up along the statutory demarcated fora. There is a right to initiate criminal proceedings bestowed upon the citizens and the law makes provision for the course to be followed once such proceedings have been initiated. While the law provides for success and failure of such proceedings, as well as the consequences thereof, this Court has not been assisted with any law that could denude a citizen of such rights; being the right to life and liberty in the present facts and circumstances.

 

11.         Article 199 of the Constitution contemplates discretionary relief, however, such discretion may only be exercised if permissible under the law. Such discretion can never be unfettered, has to be exercised per settled judicial principles and cannot be employed to defeat the manifest legislative intent. The petition seeks a restraint upon proceeding with a bail application, if any. Any restraint placed in this context would judicially presume that a person / respondent is disentitled to bail. This determination is for the court of competent criminal jurisdiction, post concluding appropriate proceedings, and under no circumstances within the remit of this court.

 

12.         In view of the preponderance of binding authority, cited supra, it is our considered view that the ordinary course of criminal proceedings could not be allowed to be deflected by resort to writ jurisdiction in the present facts and circumstances. The statutory fora are competent to determine the viability of the relevant criminal proceedings and regulate the custody of any accused. No case has been set forth before us to merit the invocation of the discretionary[9] writ jurisdiction of this Court in such regard; therefore, this petition is hereby dismissed with costs of Rs. 500,000/-; to be paid by the petitioner to the High Court Clinic within seven days from the date hereof.

 

The proof of payment shall be presented by the petitioner before the Additional Registrar of this Court within the stipulated time. In the event that the petitioner remains uncompliant, the Additional Registrar shall place the matter in Court and appropriate consequences may entail, including without limitation orders for recovery of the amount as arrears of land revenue and blocking of the national identity card of the petitioner.

 

13.         The office is instructed that a copy of this order be communicated directly to the Court of the 1st Additional Sessions Judge Jacobabad.

 

 

                                                                   Judge

 

Judge

 


[1] As denoted from the title page.

[2] As no order sheet for the said date is on file and no discharge annotation is appended on file either.

[3] 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 Supreme Court 415.

[4]Per Hamood u rRehman J. in Ghulam Muhammad vs. Muzammal Khan & Others reported as PLD 1967 Supreme Court 317.

[5]Per Aslam Riaz Hussain J. in Abdul Rehman Bajwa vs. Sultan & Others reported as PLD 1981 SC 522.

[6]Per Muhammad Afzal Zullah J. in Abdul Aleem vs. Special Judge (Customs) Lahore & Others & Others reported as 1982 SCMR 522.

[7]A Habib Ahmed vs. MKG Scott Christian & Others reported as PLD 1992 Supreme Court 353.

[8]Per Chaudhry Ijaz Ahmed J. in Haji Sardar Khalid Saleem vs. Muhammad Ashraf & Others reported as 2006 SCMR 1192.

[9]Per IjazUl Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.