2009 PLP 299 (SCMR)

SYED ZAWWAR HUSSAIN JAFFERY, J.

The petitioner seeks leave to appeal against the order, dated 11-8-2008, passed by High Court of Sindh, Sukkur Bench, whereby the concession of bail was declined to the petitioner.

2. Brief facts of the case, leading to filing of this petition, are that the complainant namely Muhammad Murad Pitafi lodged F.I.R. No.187 of 2000 at Police Station Mirpur Mathelo, District Ghotki, alleging therein that on the day of incident i.e. 15-11-2000 at about 12-30 there had been a matrimonial dispute between his brother, brother-in-law and his family with Chacher Pitafi and other relatives, who had threatened them of teaching a lesson. On that day, his brother Mir Hassan Pitafi, nephew Noor Muhammad Pitafi, niece Mst. Shehnaz and brother-in-law Pehlwan Pitafi were harvesting paddy in the land of Gulo Channar while the complainant was also harvesting at some distance, Chacher, Ghouso alias Ghous Bux, Mero Pitafi, armed with kalashnikovs, came there, abused and fired upon Mir Hassan, Noor Muhammad, Mst. Mehnaz and Pehlawan with intention to commit murder. On hue and cry, complainant and other villagers were attracted who also witnessed the occurrence. After that all the accused ran away. The complainant and other witnesses saw that Mir Hassan, Noor Muhammad and Mst. Mehnaz had died due to fire-arm injuries. Pehlawan also sustained injuries. Thereafter, the complainant with the help of other witnesses, carried the dead bodies and the injured to hospital. Thereafter, he lodged a report in the concerned police station.

3. During the course of investigation, the case was challaned which is pending adjudication before the IInd Additional Sessions Judge, Ghotki. After having rejected bail by the IInd Additional Sessions Judge, the petitioner approached the learned High Court for bail but remained unsuccessful. Hence this petition for leave to appeal.

4. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been implicated in the case by the complainant due to matrimonial dispute. As per F.I.R., the petitioner was not shown present at the time of occurrence and only accused Chacher, Gous Bux and Mero Pitafi were nominated as main accused. As per order, dated 18-2-2002, in the similar circumstances, bail has been granted by the trial Court to accused Jam Pitafi while the bail of petitioner has been declined. Therefore, the petitioner also deserves for concession of bail.

5. On the other hand, learned Prosecutor-General, appearing on behalf of State, has admitted the factual position and submits that he has no objection if the petitioner may be released on bail.

6. We have heard learned counsel for the petitioner as also the prosecutor-General, appearing on behalf of the State, and have perused the material available on record with their able assistance.

7. 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 Patafi 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.

8. For the foregoing reasons, this petition is converted into appeal and the same is allowed. The impugned order, passed by the High Court of Sindh, is set aside and the petitioner is directed to be released on bail subject to furnishing bail bond in the sum of Rs.2,00,000 (two lacs) and P.R. bond in the like amount to the satisfaction of trial Court. H.B.T./M-94/SC Bail granted.