2012 PLP 751 (MLD)

SHAHID ANWAR BAJWA, J.

F.I.R No.67 of 2009, was recorded at Police Station City, District Jacobabad, on 10-6-2009, at 1030. p.m. for an incident alleged to have occurred 45 minutes earlier. After narrating existence of dispute with his cousins the complainant stated that he along with his two brothers, nephew and other family members was present in his house when at 9.45 hours he saw a group of six persons including the present applicant in the house. Three of the six were having T.T pistols while other three including present applicant had Kalashnikovs. A co-accused raised a hakal and another co-accused fired upon brother of the complainant, and other co-accused fired at another family member and thereafter all the accused in order to create harassment resorted to aerial firing.

2. Learned counsel submitted that allegation against the applicant is of aerial firing and therefore, he is entitled to bail. Since the applicant had remained an absconder, learned counsel relied upon Mitho Pitafi v. The State (2009 SCMR 299), to contend that even an absconder is entitled to bail.

3. Mr. Naimatullah Bhurgri, learned State counsel submitted that present applicant being an absconder is not entitled to bail and he relied upon Sher Ali alias Sheri v. The State (1998 SCMR 190).

4. I have considered the submissions made by the learned counsel and have also gone through the record.

5. As for as applicant's role in the instant case is concerned, Mr.Ghanghro is correct in arguing that the applicant is alleged to have resorted only to ineffective firing and therefore is entitled to bail. However the question is what would be effect of his absconsion. Facts regarding absconsion of the applicant are that the alleged incident took place on 10-6-2009 present applicant was granted bail by the trial Court vide order dated 9-9-2009, and thereafter he absconded. He ultimately surrendered after obtaining protective bail from this Court on 19-4-2011. Therefore, he remained an absconder for well over nineteen months. In Mitho Pitali's case, it was observed by the Supreme Court, as under:-- "According to F.I.R, neither any role has been attributed to the petitioner nor his presence has been shown at the time of occurrence. Vide order, dated 18-2-2002, co-accused namely Jam Pitafi has been released on bail by the learned trial Court but the concession of bail was declined 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. In Sher Ali alias Sheri's case, the incident occurred on 17-11-1989 and Sher Ali immediately absconded and then he voluntarily surrendered on 22-6-1994. In a very elaborate judgment the Supreme Court primarily relied upon Awal Gul v. Zawar Khan (PLD 1985 SC 402), and observed 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. The 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 loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence 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)."

7. It may be pointed out that in Mitho Pitafi's case neither case of Awal Gul was considered nor the case of Sher Ali alias Sheri. In fact for the absconsion that an absconder is entitled to bail no case-law appears to have been brought to the attention of the Bench which decided Mitho Pitafi's case.

8. In the present case, the present applicant has been an absconder for more than nineteen months and he absconded after misusing concession of bail given to him. He is therefore, not entitled to the same concession once again. Consequently, this bail application is dismissed. M.W.A./Y-5/K Bail refused.