2003 PLP 1191 (MLD)

Applicant Sharbat and Haji Mithal have sought bail in a case pending trial in the Court of IInd: Additional Sessions Judge, Jacobabad for an offence punishable under section 302/34, P.P.C. The incident leading to this case, as per F.I.R., took place on 24-3-1999 at about 1-15 p.m. It is alleged that in the Town of Garhi Khairo complainant Haji Abdul Rasheed, deceased Rahib, P.Ws. Muhammad Ibrahim Shahzado were present near the service shop of Dad Muhammad Jamali when accused Ghulam Muhammad armed with .222 rifle, Faujo alias Toto, Sharbat and Mithal armed with guns emerged there on two motorcycle and in the background of previous emnity, they issued a challenge. Accused Ghulam Muhammad fired from his rifle directly at Rahib, who fell down and died on the spot. The others pointed their weapons at the complainant party, but did not make any fire. They went away on the same motor cycles. Accused Ghulam Muhammad and Foujo were granted bail by the trial Court on the ground of statutory delay, while the applicants were declared proclaimed offenders. They were arrested on 4-4-2002 and since then they are in custody. The trial Court has so far examined only the medical officer. I have heard learned counsel for applicants and learned A.A.-G. for the State. Learned counsel for the applicants dilating upon the merits submitted that no overt act is attributed to the applicants and the fatal shot is ascribed to Ghulam Muhammad alone, their constructive liability, therefore, requires further inquiry. He further submitted that abscondence by itself is no ground to refuse bail more particularly when the applicants are in custody for a period of about one year and there is no reasonable progress in the trial. Learned A.A.-G. opposed the bail on the ground that a fugitive from law loses some of his normal rights. He found support for this proposition from the case of Sher Ali v. State (1998 SCMR 190). I have given full consideration to all these contentions. Admittedly the applicants have not been attributed the fatal shot and they have not even made a single fire from their guns. There is general allegation that all the accused issued a challenge. The co-accused have been granted bail on the ground of statutory delay, while the present applicants are in custody for a period of about one year and there appears no progress in the trial. Only a formal witness namely the medical officer has been examined Obviously, in the circumstance of the case, the constructive liability of the present applicants requires further inquiry. The precedents Noor Muhammad v. Gaman (1990 PCr.LJ 1457), Sher Khan v. State (1980 SCMR 193), Muhammad Sadiq v. State (1996 SCMR 1654), Muhammad Nazir v. State (1984 SCMR 206) and Gul Sher v. State (1986 SCMR 1862) may be cited with advantage on this point. In particular, it would be relevant to refer to the case of Mumtaz Hussain v. State reported as 1996 SCMR 1125, where out of a large number of accused persons, three were armed with deadly weapons like rifle, gun and hatchet and they caused simple injuries to some of P.Ws. using their wrong side of weapon, yet they were granted bail on the ground that question whether they shared common intention with those who caused death of deceased required further inquiry. 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 lose the right of bail forever 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 Muhammad Saeed Mehdi v. State reported as 2002 SCMR 282 are relevant in this context. The authorities cited by learned counsel for applicants, Mubashir Ahmad v. State (1989 PCr.LJ 244), State v. Mukhtar Ahmad Awan (1991 SCMR 322) and Jam Sadiq Ali v. State (1989 PCr.LJ 1910) also support the bail plea. In view of the above, the applicants are entitled to grant of bail. Accordingly, their application is allowed. They may be released on furnishing surety each in the sum of Rs. three lacs and executing P.R. bond in the like amount to the satisfaction of Additional Registrar of this Court. These are the reasons of my short order pronounced in open Court today. H.B.T./S-291/K Bail granted.