2012 PLP 973 (YLR)

SHAHID ANWAR BAJWA, J.

F.I.R. No. 49 of 2005 was recorded at Police Station Dhamrah on 20-7-2005 at 8-30 p.m. for an incident alleged to have occurred at 1-00 p.m. on that date. Complainant after narrating the previous dispute stated that he and his father were returning from their land when his father asked him to go home as he wanted to look after jungle. The complainant proceeded towards his house when he heard cries of father and hakal of accused persons and he saw seven persons, two of them unidentified, three of them armed with hatchets including the present applicant, two other armed with lathies and the unidentified armed with guns. Complainant and the witnesses saw that lathi blows were being given to his father and father had fallen down when co-accused Siddique is alleged to have caused a sharp side of hatchet blow on back of neck and waist of father and present applicant is alleged to have caused a sharp side hatchet blow on back of the father. Thereafter accused persons ran away towards village side. Father expired at the spot.

2. In the Medical certificate the following four injuries are stated:-- Injuries: (1) One incised wound 8 cm x 2cm x 4 cm bone deep at Rt. Occipito-Mastoid region. (2) Incised wound 7 cm x 1 cm x 1cm muscle deep at mid of back of lower chest. (3) Incised wound 6 cm x 1/2 cm x 1/4 cm skin deep at Rt. Side of mid of back of chest. (4) Contusion 4 cm x 2 cm at Rt. Wrist joint positively.

3. Regarding cause of death, it is stated as under:-- "Injured cranial haemorrhage and shock, Injury No.1 is sufficient to cause death in ordinary course of life Injuries Nos.1, 2 and 3 are caused by sharp cutting weapon while injury No.4 is caused by Hard blunt substance. All injuries are ante mortem in nature."

4. Mr. Kashif Noor Khan Pathan, learned counsel for the applicant submitted that in the medical certificate there are four injuries whereas in the mashirnama there are three injuries and this according to Mr. Khan creates doubt. He next submitted that according to medical opinion only injury No.1 was sufficient to cause death and injury No.1 is not attributed to have been caused by the present applicant. He submitted that there has been a delay of seven hours in lodging of the F.I.R. He submitted that the applicant voluntarily surrendered on 1-7-2010. Applicant has been a school teacher and has been on duty all along and therefore cannot be said to be an absconder.

5. Mr. Irshad Ali R. Chandio Advocate filed vakalatnama for the complainant and submitted that the applicant is nominated in the F.I.R. with specific role assigned to him. He further submitted that applicant has been fugitive from law for five years and applicant cannot be said to have no knowledge of the incident because he is resident of the same village. He submitted that ocular and medical evidence is at one. He submitted that charge has been framed and it is the applicant who is responsible for delay in disposal of the trial. Learned counsel also relied upon certain case-law which I shall refer to at due place.

6. Miss Shazia Surahio, learned State Counsel advanced the same arguments as were advanced by Mr. Chandio.

7. I have considered the submissions made by the learned counsel and have also gone through the record. First case relied upon by Mr. Chandio was Akhtar Hussain v. The State 2005 YLR 1688. Allegation against petitioner/accused was that he while armed with pistol along with other co-accused fired from his pistol which hit deceased. A, single Judge of Lahore High Court dismissed bail application while observing that specific role has been attributed and the weapon of offence had also been recovered. In Muhammad Boota v The State, 2004 PCr.I,J 1857 the case as narrated in the F.I.R. was that complainant stated that her husband went to a city to sell milk and while she along with her daughter and brother-in-law was watering the paddy field and they saw her husband being attacked by the accused persons with hatchets and knives. Her husband's brother rail towards him The petitioner Boota was alleged to have inflicted hatchet blow which landed on left side forehead of the deceased. The bail application was dismissed. In Muhammad Khan v The Stale 2001 PCr.LJ 180 the applicant was one of the four persons, all armed with fire weapons, who were alleged to have committed murder by firing at the deceased. A single Judge of Lahore High Court observed that the applicant had been assigned a role of causing injury on the left flank of the deceased whereas co-accused had been alleged to have caused injuries on the neck. However, the main ground urged by the learned counsel was that the applicant was infirm person on that basis he was medically examined and the doctor opined that he did not have diseased which could not be treated inside the jail. Bail application was dismissed. Last case relied upon by the learned counsel was Muhammad Imran v. The State 2008 PCr.LJ 1555. The bail application was dismissed by a single Judge of Lahore High Court and the following reasons were recorded:-- "(5) Admittedly, the petitioner is nominated in the F.I.R. with specific role. During the investigation, the police has also declared the petitioners as guilty of the offence. It is entirely erroneous to think that any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case, available on the record at the time when the question of bail comes up for consideration. If on the allegation appearing on the record the condition set out in the provisions of law spelling out constructive liability are made out, then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life."

8. It may be pointed out that only allegation against the applicant was that of lalkara which in Sindhi is called Hakal.

9. Extract from the medical report has been produced above. There are four injuries to deceased. Injury No.1, a perusal of F.I.R. reveals has been allegedly caused by co-accused Muhammad Siddique. It is alleged that Muhammad Siddique caused another injury on the waist and the applicant caused injury on his back. Now there are two injuries on the back i.e. injuries Nos.2 and

3. One is muscle deep and the other is skin deep and it is not yet determined as which of the two injuries was caused by the present applicant. Report of the medical officer also states that death has been caused by injury No.1. Then two injuries fall in Jurh Ghayr Jaitah adiah and Damiya punishable under section 337-F(ii) and 337-F(i) respectively to imprisonment which may extend to three years and one year respectively.

10. The case-law relied upon by the learned counsel may be now referred to Akhtar Hussains case (supra) is distinguishable because it is a case in which firearm was used whereas no firearm is alleged to have been used although the F.I.R. states that two unidentified persons in the party of the accused were armed with guns. Muhammad Khan's case (supra) was decided in view of the contention that it was claimed that he was infirm. In Boota's case (supra), Boota was alleged to have inflicted hatchet blow which landed on the left side of the forehead of the deceased. With respect I have not been able to persuade myself to agree with the view expressed by learned Judge in Muhammad Imran's case (supra) wherein a case of simple lalkara, bail has been refused.

11. This brings me to the question that the applicant has been a fugitive from law. It was contended by Mr. Chandio that the applicant has been fugitive from law for five years. He was resident of the same village and he could not have been said to be a person who did not know regarding existence of the allegations. One cannot dispute Mr. Chandio's conclusion. Mr. Kashif Noor Khan stated that applicant has been a Primary School Teacher and has been on duty all along. Mr. Khan was asked whether such a ground has been taken either in the court below or in the present bail application and he frankly conceded that such ground has not been taken at all. When a specific ground has not been taken other side is always taken by surprise unless the ground is purely a legal ground.

12. The law in respect of absconsion is fairly well-settled since a judgment of the Supreme Court in Awal Gul v. Zawar Khan and others PLD 1985 SC 402 which has been followed by the Supreme Court in the case of Muhammad Sadique v. Sadique and others PLD 1985 SC 182 and has again been followed by the Supreme Court in the case of Sher Ali alias Sheri v. The State 1998 SCMR 190 wherein the relevant Para from Awal Gul's case was quoted as under:-- "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another (1), Rao Qadeer Khan v. State (2), Hayat Bakhsh and others v. The State (3), and Kh. Azhar Hussain and another v. The State (4). It is now well-established law that a fugitive from law and Courts looses some of normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscon-dence disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."

13. Therefore, the law appears to be that although an absconder is not absolutely denuded of his right to bail but he does loose some of his normal rights both under procedural as well as under the substantive law. Now the present applicant has been an absconder for five years but thereafter he has been behind bars for about 18 months. His incarceration for 18 months should certainly be allowed to go some distance towards mitigating the rigors of his absconsion.

14. Result of the above discussion is that this bail application is allowed and the applicant is ordered to be admitted to bail upon his executing P.R. bond in the sum of Rs.200,000 with one surety in the like amount to the satisfaction of the trial Court. M.W.A./Z-2/K Bail allowed.