2001 PLP 2896 (YLR)

Arshad Lodhi, Asstt. A. G. for the State. Date of hearing: 22nd June, 2001. The present applicant is seeking bail in Crime No. 259 of 1995 registered with Police Station Orangi Town under sections 302, 324, 34, P.P.C. The case of the prosecution is that accused Ameen, Waseem, Bhoora, Aftab Mota, Andoo Videowala, Hassan Akhtar and Ajmal and present applicant Waseem Raza all came duly armed and fired upon the deceased namely Nawab Bhai who succumbed to injuries and died. The present applicant is said to hay e been arrested oil 25-9-1999 by the police and thereafter the challan is said to have been submitted before the competent Court of Law on 25-9-1999. The present applicant moved bail application before the trial Court but without success. Mr. Nawab Mirza, advocate for the applicant, has contended that no specific role is assigned to the present applicant and there are general allegations and in that event it is not clear from the record as to who caused fatal blow to the deceased and leaves room for consideration and has placed reliance on Jaffar's case reported in 1980 SCMR

784. Learned counsel for the applicant has further contended that the identity of the main accused is debatable in the matter and has placed reliance on a case reported in 1985 PCr.LJ 2323. He has further contended that the co-accused namely Muhammad Ibrahim has been granted bail by the trial Court and the abscondence of the present applicant has become irrelevant. In support of his contention he has placed reliance on a case reported in 1985 SCMR

382. On the other hand Mr. Arshad Lodhi, Assistant Advocate-General for the State has recorded his no objection to the grant of bail on the point that no proceedings have been initiated against the present applicant under sections 87/88, Cr.P.C. and in that event the present applicant cannot be dubbed as absconder and has placed reliance on 1989 SCMR 1987 and according to the learned A. A. G. the applicant is behind the bars for the last more than three years. I have heard the learned counsel for the parties at length and have given my anxious thoughts to their submissions. Admittedly, the co-accused has been granted bail by the trial Court and the present applicant although has remained absconder for more than three years but on grant of bail to the co-accused the long abscondence of the present applicant becomes irrelevant and I am being fortified by the authority given by the Hon'ble Supreme Court in case reported in 1985 SCMR

382. Admittedly there are general allegations and all the accused have tired upon deceased and it is not clear from the record that who, caused fatal injuries to the deceased which leaves room for consideration and I am being fortified by the case of Jaffer reported in 1980 SCMR

784. There is no suggesting evidence according to the material available on record that who caused fatal injury to the deceased and in that event the identity of main accused becomes debatable and I am being fortified by case-law reported in 1985 PCr.LJ 1323. Since no proceedings have been initiated against the present applicant under sections 87/88 Cr.P.C. as informed by learned counsel for the State. I am being fortified by the case-law reported in 198.9 SCMR 1987 wherein the Hon'ble Supreme Court has held that when proceedings have not been initiated under sections 87/88, Cr.P.C., the accused cannot be dubbed as absconder. In the instant case there are no proceedings initiated under sections 87/88, Cr.P.C. and the present applicant cannot be dubbed as absconder particularly when co-accused has been granted bail by the trial Court. It is also startling to note that no efforts have been taken by the police to arrest or apprehend the present applicant who has been residing at the same place since his birth which appears in the caption of bail application and it shows that the police was not keen interested to arrest afore-named accused and did not visit the place where he has been residing since his birth and in that event it cannot be said that the present applicant absconded from the place of Wardat deliberately and I am being fortified by the case-law reported in 1985 SCMR 1709. In view of aforementioned facts, legal positions and authorities cited by the learned counsel for the parties at Bar, I am of the considered view that the present applicant has been able to make out a prima facie case for grant of bail particularly when he is behind the bars for the last more than three years and accordingly he is granted bail in the sum of Rs. 1,00,000 (rupees one lac only) with P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M-268/K Bail granted.