2013 PLP 536 (YLR)

MUHAMMAD ANWAARUL HAQ, J.

Petitioner Shahadat Ali alias Chhadi seeks post-arrest bail in the private complaint titled "Muhammad Arif v. Asad Muzaffar and others" under sections 302, 365, 211 and 148/149 P.P.C.

2. Learned counsel for the petitioner contends that earlier an F.I.R. No.70 dated 2-2-2007 under sections 302, 365 and 148/149, P.P.C. was registered at Police Station Chunian District Kasur against the petitioner and others regarding the same occurrence, which was cancelled by the learned Area Magistrate and thereafter the complainant has filed a private complaint; that five co-accused of the petitioner were earlier tried and acquitted by the learned trial Court in the private complaint and the petitioner was declared a proclaimed offender. Further contends that the fatal injury on the person of the deceased was attributed to co-accused of the petitioner namely Asad Muzaffar who has already been acquitted by the learned trial Court vide judgment dated 27-10-2010; that the only allegation against the petitioner is that he abetted his co-accused for the murder of the deceased who had been killed in a police encounter and it has been so held in the judgment of the learned trial Court passed in the private complaint. Further adds that in this matter a judicial inquiry was conducted wherein it was held that the deceased was killed in a genuine police encounter; that mere abscondence of the petitioner is not a ground itself to refuse him bail if otherwise his case falls within the purview of subsection (2) of section 497, Cr.P.C. Places reliance on 2009 SCMR 299; that the petitioner has never been convicted in any criminal case, therefore, he is entitled for bail.

3. On the other hand learned Deputy District Public Prosecutor assisted by learned counsel for the complainant while vehemently opposing this bail application contends that as the allegations were against the police officials and the local police had refused to register the case, therefore, the complainant had to file a writ petition and the F.I.R. was lodged by the Orders of this court; that if there is any delay in lodging of the F.I.R. the same cannot be attributed to the complainant. Further contends that appeal against acquittal of the co-accused of the petitioner is pending before this Court at motion stage; that the petitioner actively participated in the occurrence, as he had pointed out the deceased to his co-accused/ police officials; that the petitioner also made aerial firing after the occurrence to deter the witnesses; that the petitioner remained absconder for a period of more than six years and six other criminal cases are pending against him. Learned counsel for the complainant has placed reliance on PLD 2009 SC 385.

4. Heard. Record perused.

5. Admittedly the F.I.R. earlier registered regarding the same occurrence was cancelled by the learned Area Magistrate and co-accused of the petitioner having attributed main role have already been acquitted after regular trial conducted in this private complaint. The learned trial Court while acquitting the co-accused of the petitioner has held the police encounter as genuine. Even otherwise the role attributed to the petitioner is only to the extent of calling the deceased at the place of occurrence with the alleged connivance of his co-accused/police officials and of aerial firing after the occurrence. The police encounter in which the deceased had been killed was declared to be genuine in the judicial inquiry. In view of the above, case against the petitioner, prima facie, falls within the purview of subsection (2) of section 497, Cr.P.C. and is one of further inquiry into his guilt. Learned Law Officer after consulting the record confirms that the petitioner has not been found convicted in any criminal case. Mere abscondence of the petitioner is not sufficient to refuse him bail when otherwise a good case for bail after arrest is made out in his favour. I respectfully rely upon the case of "Mitho Pitafi v. The State (2009 SCMR 299)" wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "It is well-settled principle of law that bail can be granted if an accused has good case for bail on merits and mere his absconsion would not come in way while granting the bail." Therefore, petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.

6. It is, however, clarified that the observations given herein are just tentative in nature and strictly confined to the disposal of this bail petition. MWA/S-32/L Bail granted.