2009 P Cr (PLP)

ABDUL SATTAR GORAYA, J.

Petitioner is involved in case F.I.R. No.115 dated 1-3-2007 under sections 302/109/148/149, P.P.C. registered at Police Station Bhalwal District Sargodha.

2. Allegation against the petitioner is that he along with other co-accused abetted the murder of Ali Ibrar deceased.

3. Learned counsel for the petitioner states that the only role assigned to the petitioner is of abetment and that being a weak case on its face value, the petitioner may be allowed bail.

4. The learned D.D.P-G assisted by learned counsel for the complainant came out with the plea that there were two co-accused namely Fidda Hussain and Nigah Hussain Shah who were assigned the similar role but the bail application was dismissed by this Court vide order dated 3-3-2008 passed in Criminal Miscellaneous No.8338/B of 2007. It is stated that the case of the petitioner is at par with the co-accused, therefore, he is not entitled to the concession of bail. Further argued that the petitioner had absconded and remained fugitive of law, therefore, no concession can be extended in his favour.

5. I have heard the learned counsel for the parties. File also perused.

6. No doubt, the petitioner absconded but the learned trial Judge in respect of the co-accused of the petitioner segregated the trial. Co-accused of the petitioner namely Fidda Hussain was acquitted of the charge on 2-5-2008. The operative part of the judgment appearing at page 9 of the judgment of acquittal reads:

"(vi) The prosecution has failed to prove the abetment of Fida Hussain and Nigah Shah which was heard by Tahir P.W. (vii) P.W.9 Pervaiz Iqbal also deposed that occurrence took place on the abetment of Fida Hussain and Nigah Hussain accused and facts of abetment were narrated to him by Tahir Riaz and Amjad Riaz P.Ws. They had told him that they had seen and heard the abetment in the office of Saddat Goods on the same day at 5-00 p.m. Whereas the prosecution has not proved the factum of abetment. So the statement of Pervaiz Iqbal about the hearing of abetment by Tahir and Amjad Riaz is immaterial. He was only involved due to father of two co-accused namely Safeer Shah and Ghayour Shah and brother of Nigah Shah."

7. In the order dated 3-3-2008, the bail was refused to Fida Hussain, co-accused of the petitioner, for the conspicuous reason that at that time the charge against the petitioner had been framed which fact was confirmed through a report submitted by the learned trial Judge. The said petition was dismissed with a direction to the learned trial Court which had since been commenced to conclude the same at an early date. No finding with regard to involvement of Fida Hussain, co-accused of the petitioner, was given on merit. Another aspect of the case that the accused did not surrender and became fugitive of law; mere abscondence would not prove the petitioner to be guilty of the offence. Abscondence alone will not be sufficient to base the conviction and each case depends upon its own merit and circumstances. In view of the fact that the incriminating evidence which is being used against the petitioner has already been scanned by the learned trial Judge and co-accused of the petitioner namely Fida Hussain similarly placed has been acquitted of the charge, surely there is a change in the circumstances. Mere abscondence of the petitioner would not be a hurdle in granting him bail. I am fortified in my view by Barkat Ali V. Muhammad Asif and others 2007 SCMR 1812 and Shafqat Abbas and another v. The State 2007 SCMR

162. New situation has been cropped up and keeping the petitioner in jail for indefinite period, especially on the face of this situation that his co-accused has been acquitted, would not serve any purpose. The trial is not in sight so far.

8. In the given situation, this application is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./N-55/L Bail granted.