IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA  

 

Crl. Bail Appln. No. S- 319 of 2023.

 

Date of hearing

Order with signature of Judge

 

29.01.2024.

 

1.         For orders on office objections.

2.         For hearing of bail application.

 

            Mr. Habibullah G. Ghouri, Advocate for applicant.

            Mr. Javed Ahmed Soomro, Advocate for complainant.

            Mr. Ali Anwar Kandhro, Additional Prosecutor General.

~~~~~~~

 

ORDER

 

Muhammad Saleem Jessar, J: Through this application, applicant Yahya son of Allahando Jaferi has sought for his admission to post-arrest bail in Crime No.03 of 2011, registered at Police Station  Dilawar Marfani, for offences punishable under Sections 302, 148, 149, 114, 337-H (2), 504 P.P.C. His similar request was turned down by learned Additional Sessions Judge-I, Shikarpur, vide his Order dated 07.06.2023. The case is now pending for trial before the Court of 1st Additional Sessions Judge, Shikarpur; vide Sessions case No.245 of 20211 re; State v. Yahya and others.

 

            2.         The facts of prosecution case are mentioned in para 2 of the impugned order, as such it would be conducive to reproduce same, which read as hereunder:

 

“It is alleged in the F.I.R by the complainant that on 14.3.2011, at about 07.30 a.m., at the house of complainant situated in village Ghulam Hussain Jaferi, Taluka Garhi Yasin, District Shikarpur, the above named applicant/ accused along with other co-accused, duly armed with kalashnikov, in furtherance of their common object had committed qatl-e-amd of deceased Inayatullah by causing fire shot injuries to him, for which, they were booked and challaned in the instant case.”  

 

 

            3.         Learned counsel for the applicant mainly contended that, the applicant has been implicated in this case by complainant with malafide intention and ulterior motives; that F.I.R is delayed for about 33 hours. Learned counsel empathized on medical ground of ailment of the applicant, as according to him the applicant has been suffering from heart ailment since long and his remaining in jail would be detrimental to his health and life. Lastly, learned counsel prayed for grant of bail to the applicant.

 

            4.         Conversely, learned Advocate appearing for the complainant opposed the grant of bail to applicant/ accused on the grounds that the applicant has been nominated in the F.I.R with specific role of causing kalashnikov fire at deceased, which gets support from the medical evidence, so also statements of prosecution witnesses recorded under Section 161 Cr.P.C and that the offence which with the applicant is charged falls within prohibitory clause of Section 497 Cr.P.C. Whereas, learned Addl. P.G appearing for the State while adopting the same arguments also opposed grant of bail. 

 

            5.         From tentative assessment of the record it appears that, applicant is named in F.I.R with specific role of making kalashnikov fire at deceased, which resulted into his death on the spot. The version of the complainant is supported by eyewitnesses in their statements recorded in terms of Section 161 Cr.P.C and that ocular version also gets support from postmortem report of the deceased, which reflects that he died by unnatural death due to fire shot.  So for as, medical ground with regard to ailment of the applicant is concerned, the impugned order shows that “report regarding health condition of the applicant was called from jail authorities and per same report the applicant was sent to RBUT Civil Hospital Shikarpur for medical examination/ treatment and further advised by Dr. Zaheer Shamas Bhutto, Cardiologist for Thallium Stress Test from NIMRA Hospital Jamshoro or Nawabshah, therefore, at this stage the medical ground agitated by learned defense counsel will not to be helpful for the applicant because it has not been opined by the doctors that further remaining of applicant in jail would be detrimental to his health and life.” 

 

            6.         In addition to above, on the directions of this Court, a Special Medical Board was constituted, who examined the applicant and has furnished its report vide No. CMCH/ 8077/79, dated 03.01.2024. The Medical Board has opined that remaining of applicant in jail may be hazardous/ risky to his health only; however it has not been opined by the Medical Board that remaining of applicant in jail would be hazardous to his life.

 

            7.         Furthermore, as per progress report furnished by the learned trial Court the case was kept in abeyance by trial Court; however applicant Yahya has been arrested on 20.02.2023 and sent with supplementary challan, as such amended charge has been framed agaisnt him and process has been issued to  the prosecution witnesses and now case is fixed for recording evidence.

 

            8.         The offence with which the applicant has been charged carries capital punishment and falls within prohibitory clause of Section 497 Cr.P.C. More-so, the applicant has remained fugitive from law for a noticeable period without furnishing any explanation and it is well settled law that a fugitive of law always loses some of his normal rights.

 

            9.         In view of foregoing, the application in hands being devoid of merits stands dismissed. However, learned trial Court is directed to expedite trial of the case and conclude it within a period of preferably three (03) months.

 

 

 

                                                       Judge

 

Ansari