1998 P Cr (PLP)

‑‑‑‑ Abscondence of accused‑‑‑Presumption as to guilt ‑‑‑Abscondence, in absence of any other evidence against accused, is of no avail to prosecution.‑‑ [Abscondence]. Farman Ali and 3 others v. The State PLD 1980 SC 201 ref. Mumtaz Ali Siddiqui for Applicant. Sher Muhammad Shar, A.A.‑G. for the State. Brief prosecution story as unfolded in the F.I.R. lodged by Saeed Ali son of Mehardil Jatoi with the Police Station Market, Jacobabad is that he used to reside in a common house with his son Abdul Nabi and Mst. Raheema (wife of Abdul Nabi). While he and his son Abdul Nabi went out of their house with some private work, on their coming back in their house they found that Mst. Raheema was missing. He made enquiries about the whereabouts of Mst. Raheema on which his brother Muhammad Ali told him that he had seen Mst. Raheema alongwith Ghazi alias Abdul Rehman son of Sheral, Shah Nawaz and Rashid who were going on a tonga towards Wagon stand. Complainant tried to trace and locate them but he could not get any clue. Thereafter, he lodged F. I. R. with Police after 15 days of the incident. After lodging of the F.I.R. police started investigation, Ghazi co‑accused was arrested and police submitted charge‑sheet against the present applicant/accused showing him as absconder. Subsequently he was arrested on 7‑1‑1998. Bail application on his behalf was moved before the learned 1st Additional Sessions Judge, Jacobabad which was rejected vide order dated 21‑1‑1998. Hence this present application. I have heard Mr. Mumtaz Ali Siddiqui, learned counsel for the applicant/accused who contends that apart from this F.I.R., Abdul Nabi, the husband of Mst. Raheema lodged the F.I.R. with Garhi Yasin, Police Station on I 3‑8‑1996 being Crime No.46 of 1996 which is Annexure ' B' with the bail application. Even in this crime direct role is not assigned to the applicant. Mst. Raheema was recovered by the police on 18‑8‑1996 from the General Bus Stand thereafter her 164, Cr.P.C. statement was recorded in which also she has not alleged overt act or act of Zina against the applicant/accused. Applicant/accused is in custody since 7‑1‑1998 and case of the applicant/accused prima facie requires further inquiry. Learned counsel for the applicant/accused cited Abdul Rauf v. The Crown 1971 SCMR 256, wherein it has been held that mere fact of abscondence of accused after commission of crime does not serve to establish accused's guilt beyond reasonable doubt. Learned counsel also cited Farman Ali and 3 others v. The State PLD 1980 SC

201. In this case their Lordships of the Supreme Court have laid down that abscondence in absence of any other evidence against accused, however, of no avail to prosecution. Mr. Sher Muhammad Shar, learned A.A.‑G. contends that after registration of the F.I.R. applicant/accused went underground and was not available and in his absence charge‑sheet was submitted before the Court where proceedings under sections 87 and 88 of the Cr.P.C. were initiated. Applicant/accused is fugitive from law and does not deserve concession of bail. Learned A.A.‑G. refers Irshad and another v. The State 1996 PCr.LJ

719. I have gone through the material placed with the case. Admittedly, specific role of abduction/kidnapping is not alleged against the applicant/ accused. Moreover, Mst. Raheema, the star prosecution witness in her statement recorded by the police as well as by the Magistrate under section 164, Cr.P.C. has not implicated him. Prior to this Abdul Nabi the husband of Mst. Raheema also lodged the F.I.R. which is Annexure "B" with the bail application. Mst. Raheema was recovered by police from the General Bus Stand but nowhere it is alleged that she was recovered from the possession of the present applicant/accused. The mere submission of charge‑sheet by police against the applicant/accused without sufficient evidence to connect him with the crime, prima facie is not sufficient to presume that applicant/accused had undergone and had absconded away. The case‑law referred by Mr. Mumtaz Ali Siddiqui, learned counsel for the applicant under the circumstances is relevant and helpful to the case of the applicant, which I respectfully follow. The case‑law referred by Mr. Sher Muhammad Shar, learned A.A.‑G. is Irshad and another v. The State 1996 PCr.LJ

719. Facts of this case are that accused were charged in F.I.R. under section 302/324/34, P.P.C. for the murder of Mst. Sareer aged about 10 years wherein the accused were, assigned, he role of causing the death of Mst. Sareer in the F.I.R. and Police during investigation collected the evidence against the accused. Subsequently accused went underground and were declared as absconders. On the face of it the facts of the referred case are not relevant to the facts of the present case inasmuch as there is no direct evidence forthcoming against the applicant/accused. Even Mst. Raheema has not implicated applicant/accused for commission of kidnapping/ abduction or of Zina. The F.I.R. lodged by Abdul Nabi, the husband of Mst. Raheema which is four days prior to this F.I.R. prima facie, shows that case of the applicant/accused requires further inquiry. Upshot of the above discussion is that application is granted, applicant/accused may be released on bail on furnishing solvent surety in the sum of Rs.50,000 with P.R. Bond in the like amount to the satisfaction of the learned trial Court. H. B. T./A‑192/K Bail granted.