2009 PLP 779 (MLD)

ABDUR REHMAN FARUQ PIRZADA, J.

Through this application, applicant Muhammad Hayat seeks bail in the case vide Crime No.4 of 2002, Police Station Garhi Hassan, District Jacobabad, for offence under sections 302, 324, 337-H(2), 147, 148, P.P.C.

2. The F.I.R. was lodged by complainant Ghous Bakhsh at Police Station Garhi Hassan on 15-5-2002, at 5-15 a.m. As briefly stated the prosecution case is that the complainant was hari on the lands of Muhammad Yousif Khan, whereas his father Muhammad Usman looked after the "Dera". The complainant party had old dispute with Karim Bakhsh and others over the matter of "karap". On the night of incident the complainant his father Muhammad Usman, uncle Muhammad Hassan and cousin Muhammad Suleman, after taking meals, went to sleep on the separate cots. At 1215 a.m. at night, the complainant woke up on a sound, and saw six persons who were identified in the torchlight to be Wahid Bakhsh, Karim Bakhsh, Muhammad Hayat, Illahi Bakhsh, Ghulam Hyder alias Babu and Muhammad Nawaz. Accused Wahid Bakhsh was armed-with kalashinkov, Karim Bakhsh was armed with T.T. Pistol whereas remaining accused were armed with guns. Wahid Bakhsh made a challenge that they would take revenge for the unjustified murder of his brother Muhammad Bakhsh Khoso for allegation of "karap" by targeting Muhammad Usman. Within the sight of complainant party accused Wahid Bakhsh fired a burst of kalashinkov upon complainant's father Muhammad Usman thereby hitting him on his head, who fell down while raising a cry. The remaining accused persons with intention to commit murder fired straight shots upon the complainant party, who saved themselves while falling down. Thereafter all the accused persons ran away while raising slogans and making aerial firing. Muhammad Usman was found to be dead. Thereafter the F.I.R. was lodged.

3. The case was challenged on 7-6-2002, in which the applicant was shown as absconder. Subsequently he was arrested on 18-1-2007.

4. Learned counsel for applicant has contended that no direct role of firing upon the deceased was ascribed to the applicant. He was only attributed the role of making ineffective firing upon the complainant party. The applicant is confined in custody since January, 2007. Co-accused Wahid Bakhsh who was ascribed direct role of firing upon deceased Muhammad Usman, has been granted bail by this Court vide Order, dated 20-10-2005. However accused Wahid Bakhsh was granted bail mainly on the ground of his minor age. The incident occurred at night time and the identification was allegedly made in the torchlight but the torch was not produced being an important piece of evidence.

5. Mr. Altaf Hussain Surhio, learned State counsel has conceded to the grant of bail, on the ground that no effective role was ascribed to the applicant and he is confined in custody since January.

6. I have considered the arguments of both the learned counsel and have perused the material available on record. So far as the merits of the case are concerned, as per prosecution. case the applicant being .armed with gun, allegedly made ineffective firing upon the complainant party, whereas co-accused Wahid Bakhsh directly fired with kalashinkov upon deceased Muhammad Usman, who died due to such fire-arm injuries.

7. At this stage, it cannot be ascertained as to whether the applicant can be held vicariously liable for the commission of alleged offence. In fact the same question can be appropriately determined at the stage of trial, when sufficient material is brought forth on record. Reference may be made to the authority Qalib Abbas v. The State (2000 PCr.LJ 464), wherein it was held as under:-- "Contending that no overt act has been ascribed to the petitioner save for the alleged ineffective kalashinkov's firing that too subsequent to the event, factum whereof stands refuted by the admitted non-recovery of any crime-empty of the weapon in question nor any other incriminating article has been recovered from him, who is even alien to the motive on which count he has already suffered nearly six months internment." In the case of Laiq Muhammad v. The State reported in 2000 PCr.LJ 1229, the bail was granted to applicant, when allegedly the firing attributed to accused was found ineffective, whereas the death of deceased was traceable to firing made by co-accused. In the case of Muhammad Sadiq and another v. The State (1996 SCMR 1654), the Hon'ble Supreme Court observed that accused were alleged to have kept on firing and raising lalkara at the time of occurrence; although accused were armed with a pistol and rifle, yet they did not caused any injury to the complainant party; accused were admitted to bail in the circumstances.

8. As per prosecution case, the incident occurred at night time at a Dera on lands and the identification of accused was made in the torchlight only. It has been consistently held by the Hon'ble superior Courts that the identification in the light of torch has been considered as a weak piece of evidence and implicit reliance cannot be placed on it. Moreover, admittedly even the torch in question was never produced during investigation, thereby leaving prosecution devoid of an important substantial piece of evidence.

9. On the point of abscondence, it can be understandable that there are two categories of abscondence viz. the persons who escape away and become absconders with a guilty mind, and the persons who may be innocent, but they may abscond away, being scared of the repercussion of a criminal case lodged against them. In the present case, it has been urged that there is background of previous enmity and three real brothers have been implicated in the case as such the false implication of the applicant cannot be ruled out in the circumstances of the case. It has been consistently held in the latest authorities of law by the Hon'ble apex Court as well as High Courts that the cases in which on the merits of the case a person in entitled to bail then abscondence simpliciter may not come in their way. In the case of Sharbat and another v. The State reported in 2003 MLD 1191, it was laid down as under:-- "In the backdrop of the above situation, when on merits the applicants have a good case, the abscondence alone should not come in the way of grant of bail. No doubt a fugitive from law loses some of his rights but he does not loose the right of bail for ever and they are also entitled to fair and just trial within a reasonable time. The observations made by the Hon'ble Supreme Court of Pakistan in a case of Muhammad Saeed Mehdi v. The State reported as 2002 SCMR 282 are relevant in this context. The authorities cited by learned counsel for applicants, Mubashir Ahmed v. The State (1989 PCr.LJ 244), The State v. Mukhtar Ahmed Awan (1991 SCMR 322) and Jam Sadiq Ali v. The State (1989 PCr.LJ 1910) also support bail plea." In a D.B. authority of High Court of Sindh Abdul Wahab v. The State, reported in 2003 YLR 1915, it was held:-- "It is important to note that conduct of an accused person soon after the incident plays important role in determining the guilt of an accused person. It is pointed out that disappearance of a person named in a heinous crime such as murder is natural phenomenon whether named rightly or wrongly. Some persons having guilty conscious abscond and some persons being innocent dragged in the case due to enmity also abscond. Reference is invited in a case of Sirajuddin v. Kala PLD 1964 SC 26 and at page 36 it has been observed as under:-- "A person who has been named as murder, whether rightly or wrongly', usually makes himself scarce." While giving the conduct of various persons nominated in the F.I.R. after commission of offence, Justice Khalil-ur-Rehman Khan in his book Justice Minor's Principles and Digest, Qanun-e-Shahadat published in 1995 Edition at pages 262 and 263 observed as under:-- "The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based. Absconding is equally consistent with innocence and guilt it is a proper matter to be considered along with the other facts of the case, whether they bear upon guilt or upon innocence. It is well-known that different persons are differently constituted and that some accused persons though innocent, deliberately abscond rather than face the ordeal of a criminal trial." "The above observation of the learned author has also been relied upon by the Supreme Court of Pakistan in a case of Ameenullah v. The State reported in PLD 1976 SC page 629."

10. The learned counsel for applicant has also relied upon the unreported D.B. authority of High Court of Sindh, vide order, dated 21-2-2003, in Criminal Bail Application No.D-282/2002, Aligohar v. The State which is an elaborate authority on the point of abscondence. Their lordships observed as under:-- "There are two aspects of abscondence.

(1) Putting the prosecution in disadvantageous position during the course of investigation and trial, (2) creating a corroborative and circumstantial evidence against himself. In the first case through abscondence an accused person destroys, conceals or allow any valuable evidence to disappear, such as, recovery of weapon, blood-stained clothes, discovery of dead-body, or place of ' incident, reducing the value of identification Test and so on so forth and in latter case by abscondence creates a corroborative and circumstantial evidence which can be used against him during trial, if an order under section 87(3), Cr.P.C. is passed by the Court. Therefore, different yardstick is to be made to treat both the sets of accused persons. If an accused person absconds through which valuable piece of evidence is lost, or concealed or allowed to be destroyed then he is not entitled for any concession but if an innocent person became fugitive from law or absconds then if it is found that his case falls within the provision of subsection (2) of section 497, Cr.P.C. (further enquiry into the guilt) then his case is to be considered differently. Reliance is placed in a case of Nasij Gul v. Khalid Khan (1989 SCMR 899 at page 900),' it has been observed as under:-- " .Abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Criminal Procedure Code or the offence is bailable otherwise."

11. Thus in such a situation a simple abscondence of accused person should not come in the way of grant of bail to him as the said person would be entitled to bail under section 497(2), Cr.P.C. as a matter of E right and not as a matter of concession. Reliance is also placed on a case of Sher Ali alias Sher v. The State, reported in 1998 SMCR 190 and at page 203, it has been observed as under:-- "In our view, simpliciter an act of abscondence on the part of an accused person will not disentitle him to claim bail on the ground of statutory delay, which right accrue to him after he has been arrested and the statutory period mentioned in clause (1) or clause (b) of afore-mentioned third proviso, as the case may be expired."

11. There are a number of more authorities on the same point. Only a few of them may be cited as 2004 PCr.LJ 1785, 1995 PCr.LJ 1316 and 1985 SCMR 382, etc.

12. In view of the given circumstances, and while placing reliance upon the authorities of law as cited above, the case of applicant would require further enquiry to establish his guilt, as envisaged by the provisions of section 497(2), Cr.P.C. Consequently the applicant being entitled to the concession of bail, may be released on his furnishing solvent surety in the sum of Rs.2,00,000 (Two lacs) and P.R. Bond in the like amount to the satisfaction of Trial Court. H.B.T./M-3/K Bail granted.