2019 P Cr (PLP)

SHAMSUDDIN ABBASI, J.

Through this post-arrest bail application, applicant Hafeez alias Abdul Hafeez has impugned order dated 09.06.2018 passed by learned I-Additional Sessions Judge, Sukkur, whereby his bail application was declined.

2. Learned Counsel for applicant submits that role of instigation has been assigned to the applicant even his presence at the scene of offence has not been shown in the FIR. He further submits that bail has been granted to co-accused Abdul Latif by the trial Court on two grounds that mere presence has been shown at the scene of offence and complainant has filed affidavit in which he has exonerated him from the commission of crime. He further submits that the case of present applicant is on better footing and rule of consistency is applicable in this case. He further submits that applicant is behind the bars since last three years and during pendency of case complainant has filed affidavit before the learned trial Court in which he has exonerated the present applicant from the commission of offence and has raised no objection for grant of bail. He prayed for grant of bail to present applicant.

3. Mr. Ghulam Murtaza Korai, Counsel appearing on behalf of complainant has also recorded no objection for grant of bail in view of affidavit filed by the complainant.

4. Learned Assistant Prosecutor General has opposed the grant of bail on the ground that applicant was absconder and he remained fugitive from law for about 10 years. He relied upon case of Mst. Ravida v. Amjad reported in 2018 SCMR 28 and Suhail Waqar alias Sohaila v. State reported in 2017 SCMR 325.

5. Heard learned Counsel for applicant, learned Counsel for complainant as well as Assistant Prosecutor General and perused the record. It appears that presence of applicant has not been shown at the place of incident and only role of instigation has been assigned to him. It is also admitted fact that bail has been granted by the learned trial Court to co-accused whose presence has been shown at the place of incident and the case of present applicant is on better footings. Complainant has also filed affidavit before learned trial Court in which he has exonerated the applicant from the commission of offence, mere abscondance of the accused will not come in his way in view of the dictum laid down in the case of Mitho Pitafi v. The State reported in 2009 SCMR 299 in which the honourable Supreme Court has observed as under; "According to FIR neither any role has been attributed to the petitioner nor his presence has been shown at the time of occurrence. Vide order dated 18.02.2002, co-accused namely Jam Patafi has been released on bail by the learned trial Court by the concession of bail was disclosed to the petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner."

6. The case law relied upon by learned Assistant Prosecutor General is on different footings.

7. In view of above circumstances, applicant Hafeez alias Abdul Hafeez is admitted to bail in FIR bearing Crime No.29 of 2005 under sections 302, 324, 109, 34, P.P.C. registered at Police Station, Site Sukkur subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two lacs) and PR bond in the like amount to the satisfaction of trial Court. Bail application stands disposed of in the above terms. MQ/H-21/Sindh Bail granted.