2012 PLP 574 (MLD)

MUHAMMAD ALI MAZHAR, J.

The applicant has filed this bail application under section 497, Cr.P.C. in Crime No.101 of 2009, lodged at Police Station, Khanpur Mahar under sections 302, 337-H (ii), 147, 148 and 149, P.P.C.

2. The complainant Younis Mahar lodged the F.I.R. on the basis of following accusation:-- "Abdul Malik son of Abdul Ghani Mahar, aged about 35 years is the cousin of complainant, there is a dispute between Mahar and Pitafi tribes. On 18-6-2009, the complainant, his cousin Abdul Malik and Abdul Khalique, Mohakum Din gathered and went to village Garhi Daray to relatives for piece of work. They received information that some Pitafi Tribe persons, namely Qadir Bux alias Qadan and Qaimdin alias Ghoro have been murdered due to tribal enmity. While returning to their houses when reached at Link Road, they saw 30 known accused persons and seven unidentified persons (The names of 30 accused persons including the present applicant are mentioned in the F.I.R. with parentage and seven persons have been shown unidentified in the F.I.R.) with Kalashnikovs, the complainant and witnesses had clearly seen them, who came and raised hakals and said that today we will not spare you and will take revenge, after saying so the accused Jano Pitafi, Golo Pitafi and Abdul Ghafoor Pitafi directly fired with Kalashnikov with the intention of murder, which hit to complainant's cousin Abdul Malik who fell down. In the meanwhile upon firing the villagers came and on seeing them, accused persons ran away by making aerial firing. Abdul Malik sustained one fire injury on head, one fire injury on right side of his chest and one fire injury on right shoulder and blood was oozing. He was brought to the hospital for treatment where he expired. It is further stated in the F.I.R. that due to tribal enmity, the above accused persons directly fired with the common intention to commit murder of Abdul Malik and made aerial firing for harassment and ran away".

3. The learned counsel for the applicant argued that the applicant has been falsely implicated in the case and there is no specific role attributed to the applicant in the F.I.R. He further argued that there is unexplained delay of one day in lodging of the F.I.R. Complainant has mentioned the names of numerous persons, out of which 14 persons including main accused were placed by the police in Column No.2 of the challan, but they were subsequently joined by the learned Magistrate in the trial. He further argued that trial court dismissed the bail application on the sole ground that applicant remained absconder without considering other important elements of the case. In support of his arguments, learned counsel relied upon 2009 SCMR 299 (Mitho Pitafi v. State) in which, the hon'ble Supreme Court held that the learned High Court as well as learned trial court rejected the bail of the petitioner on account of abscondence and not on merits. It is well settled principle of law that bail can be granted if an accused has good case for bail on merits and mere abscondence would not come in the way while granting bail. The hon'ble Supreme Court further held that the High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner. Finally in this case, bail was granted to the applicant and the impugned order passed by the High Court was set aside. He further referred to another judgment reported in 1995 PCr.LJ 1316, in which learned Division Bench of this court held that rule regarding refusal of bail to an absconder is not an absolute rule and exception could always be made depending upon the circumstances of the case.

4. Conversely, the learned A.P.-G. argued that all the accused persons committed offence with common intention and pre-concert and therefore, applicant is not entitled for the grant of bail. However, he concedes to that trial court has dismissed the bail application merely on the ground that applicant had absconded and proceedings against him were initiated under sections 87/88 Cr.P.C., therefore, the bail application was dismissed without considering the merits of the case including the role assigned to the applicant.

5. After hearing the arguments, I am of the firm view that it is a case of further inquiry keeping in view the role attributed to the present applicant. It is quite apparent and obvious from F.I.R. that main role has been assigned to accused Jano Pitafi, Golo and Abdul Ghafoor who attacked and caused direct fire arm injuries to Abdul Malik. Upon a tentative glance of F.I.R., it is discernible that the complainant has nominated thirty accused persons with parentage including the applicant while seven unknown persons have also been nominated but Jano Pitafi, Golo Pitafi and Abdul Ghafoor Pitafi have been assigned specific role while, the allegations against the applicant is that he was present at the site and engaged in aerial firing. Keeping in view the peculiar circumstances of case where 37 persons have been named in one F.I.R. out of which three persons have been assigned specific role while 34 persons have nominated without role tantamount to a case of further inquiry regarding the guilt of present applicant. The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proved otherwise. An essential prerequisite for grant of bail by virtue of subsection (2) of section 497, Cr.P.C. is that the court must be satisfied on the basis of material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life. Condition of this clause is that sufficient grounds exist for further inquiry into the guilt of accused which would mean that question should be such which has nexus with the result of case and can show or tend to show that accused was not guilty of offence with which he is charged. It is well settled and basic principle of law that the bail is not to be refused as punishment.

6. So far as the question of abscondence is concerned, honourable Supreme Court in case reported in 2002 SCMR 99, has held that bail can be granted if an accused has good case for bail on merits and mere abscondence would not come in the way while granting bail. The apex court time and again held that it is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of the guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It was further held that in any case abscondence can never remedy the defect in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt. In the judgment reported in 1999 SCMR 304 (Gul Khan v. State), it was held that the abscondence of an accused itself may not point out towards its guilt. It depends upon the facts and circumstances of each case as to whether abscondence is a pointer or not. Abscondence as a circumstance proving the guilt is based upon the assumption that the guilty man tries to escape from the police violence, the innocent man rushes to the police and vindicate his innocence. Such assumption is based upon several other assumptions and it would not be save to hold that abscondence of an accused automatically amounts to prove of his guilt. Abscondence per se is not sufficient to prove the guilt, but abscondence of an accused for a long time for which no satisfactory explanation is given by the accused coupled with other evidence on record would be the criteria to determine the guilt or innocence of an accused person.

7. It is settled principle of law that at bail stage, deeper appreciation of material placed on record is not required. However, in order to reach at some logical conclusion, the court may tentatively assess the material available on record to find out whether applicant is entitled for the grant of bail or not. At this stage, where numbers of accused persons have been nominated and even some of the accused had been shown in Column No.2, including the main accused who were subsequently ordered to be joined in the trial by the Magistrate. It is apparently not conceivable or imaginable that a common man with limited intelligence can memorize and acknowledge/identify 30 persons with parentage and seven other unknown persons who may be identified if seen again and then nominate them in the F.I.R. to show common intention which is quite difficult even for a most precautious and prudent man, therefore in my view, the question of common intention and pre-concert in this case cannot be determined unless trial has commenced and concluded in accordance with law.

8. For the foregoing reasons, the applicant is granted bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rupees two lacks) with PR bond in the like amount to the satisfaction of the trial Court. However, it is clarified that the above findings are tentative in nature and shall not affect the case of either party. H.B.T./S-106/K Bail grante