2010 PLP 2839 (YLR)

NADEEM AZHAR SIDDIQI, J.

The applicant is seeking bail in pending trial before the learned IIIrd Additional Sessions Judge, Karachi West, in Sessions Case No.219 of 2007 vide Crime No.34/ 2007 for the offence under sections 302, 324/34, P.P.C., of Police Station Baldia Town, Karachi. The allegation against the applicant is that he along with co-accused Akbar caught hold the deceased and co-accused Muhammad Ramzan inflicted chhuri blows to the deceased. The other allegation is that all the three accused have injured the deceased son of the complainant by danda and chhuri. The applicant has moved his first bail application before the trial Court, which was dismissed vide order, dated 26-2-2009 on the ground that two witnesses, namely, Nazar Muhammad and Muhammad Rafiq have fully implicated the present applicant in the commission of offence and also on the ground of absconsion of the applicant. Learned counsel for the applicant submits the applicant is quite innocent and has committed no offence, but has been falsely implicated in this case. He submits that there are no reasonable grounds to believe that applicant has committed the murder of deceased. He then submits that no incriminating article from the place of incident has been recovered. He then submits that neither the name of applicant has been mentioned in F.I.R. nor specific role has been assigned to him. He then submits that no identification parade was held before any Magistrate. He also submits that co-accused Muhammad Ramzan has already been granted bail by this Court vide order dated 9-5-2008 in Criminal Bail Application No.473/2008, therefore, rule of consistency is attracted to the present case and the applicant is entitled to the concession of bail on the ground of further inquiry and rule of consistency. Learned A.P.G. has vehemently opposed for the grant of application on the ground of absonsion of the applicant. He submits that the applicant along with co-accused had made murderous assault on the son of complainant Muhammad Saleem. He further submits that the applicant has remained absconder and fugitive of law is not entitled to the concession of bail. He then submits that since specific role has been assigned to the applicant no case of further inquiry is made out and applicant is not entitled to the concession of bail. I have anxiously considered the arguments of the learned counsel for the parties and gone through the material available on record. It is well-settled principle of law that at bail stage only tentative assessment has to be made and deeper appreciation has to be avoided. Admittedly, the incident took place on 12-3-2007, no recovery has been made from the possession of applicant. The role assigned to the applicant is that he and co-accused caught hold the deceased and co-accused Ramzan and another co-accused inflicted chhuri blows upon the deceased. It is an admitted fact that the co-accused Muhammad Ramzan, who has been accused of inflicting chhuri blow, has already been granted bail by this Court vide order dated 9-5-2008 in Criminal Bail Application No.473/2008. The case of the applicant appears to be on better footing. The rule of consistency demands that bail on the ground of further inquiry may also be granted in favour of the applicant. Regarding the absconsion the Hon'ble Supreme Court in the reported case of The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322) has held that "it may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail, although it may be added, abscondence does constitute a relevant factor when examining the question of bail." In another reported case of Muhammad Sadiq v. Najerab Ali (1995 SCMR 1632) the Hon'ble Supreme Court has held that "in the absence of any other evidence against him, abscondence by itself, as held in the series of judgments of the Court, would be of no avail to the prosecution." In another reported cases of Shahid v. The State (1994 SCMR 393) the Hon'ble Supreme Court has granted bail on the ground of rule of consistency and further enquiry to the accused, who was attributed the role of getting hold of deceased when his co-accused was inflicting dagger blows on him. In view of the above, the bail application was allowed and the applicant Muhammad Irfan was ordered to be released on bail on his furnishing solvent surety in the sum of Rs.100,000 with P.R. bond in the like amount by passing short order dated 21-4-2009. These are the reasons of the said short order. H.B.T./M-107/K Bail granted.