2010 PLP 3029 (YLR)

MUHAMMAD 'FASNIM, J.

The present applicant is booked in Crime No. 137 of 2005, registered under sections 395, 223, 224, 225-A, 337-F(i), 337-F(iii), 147, 148 and 149, P.P.C. at Police Station "A" Section Khairpur.

2. Learned counsel for the applicant has submitted that no recovery has been effected from the present applicant nor any 'role has been assigned to him. He submits that other co-accused have been acquitted from the charge from the trial Court. He also submits that offences alleged in the F.I.R., does not fall in the prohibitory clause and applicant is entitled to bail. Learned counsel further submits that grant of bail is a right of any individual but refusal is exceptional to general rule. He further says that there is no evidence whatsoever which connects the present applicant with the commission of the offence. He further submits that the charge is groundless and there is no possibility of conviction at the conclusion of trial; hence it will be futile exercise to keep the present applicant behind the bar for longer period.

3. On the other hand learned APG has opposed the bail application and has argued that applicant deliberately remained fugitive from law and has avoided the process of the Court and he is not entitled for the concession of bail. Learned APG, however, has admitted that no recovery has been effected from the present applicant nor any role has been assigned to him and the case also does not fall within the prohibitory clause. Learned APG has relied on the case of Muhammad Rafique 2008 SCMR 678 enforcing his arguments that applicant remained fugitive for a long time and waited till acquittal of other accused; hence is not entitled for grant of bail.

4. I have heard learned counsel for the parties and had gone through the material available before me. The case law cited by the learned APG is distinguishable from the facts; in the reported case the Petitioner was involved in a case in which there was direct evidence of firing and causing injury to some one by the petitioner. However, he remained fugitive from law and the similar plea of non grant of bail was raised by the prosecution. The Hon'ble Supreme Court of Pakistan observed in the reported case that:- "This is correct that the disappearance of the petitioner, after the occurrence for a long time, may not be essentially an evidence of his guilty but it is an important factor to be considered at the trial which is in progress".

5. From the above it is clear that fact of remaining fugitive from process of law is a fact which is to be considered by the Trial Court at the trial. However; it would not be used as a shield to deny the right of bail to an individual. In the present case prima facie present applicant is not connected with the commission of offence and there is also no direct evidence in support of the allegation in the F.I.R.

6. In the circumstances, it will not be fair to keep the applicant behind the bars till the conclusion of the trial. In the circumstances present bail application is granted, applicant is admitted to bail subject to furnishing of solvent surety in the sum of Rs.100,000/- and on execution of personal bond of the like amount to the satisfaction of the trial Court.

7. Since, it is an old matter and supplementary chalian has been submitted, it is expected that the learned trial Court shall dispose of this case expeditiously and decide the same within next five months. H.B.T./M-114/K Bail granted.