2008 PLP R (YLR)

NADEEM AZHAR SIDDIQI, J.

By this application, the applicant is seeking bail in Crime No.90/2004 of Police Station Naudero District Larkana registered for an offence under sections 302, 324, 337-H/2, 114, 148, 149, P.P.C. The allegation against the present applicant is that he duly armed with rifle along with other 13 accused persons collectively made ineffective firing at the complainant party. However, the other co-accused directly fired from their respective weapons which resulted into death of five P.Ws. After registration of F.I.R., the investigation followed and in due course the case was challaned while showing the present applicant absconder who was later arrested. The bail plea moved on behalf of the applicant was declined by the trial Court vide impugned order dated 3-10-2007. I have heard learned counsel for the parties and perused the material brought before me. It is contended by the learned counsel for the applicant that only general role is attributed to the applicant that he along with others collectively made firing at the complainant party to which they saved themselves. He further submits that in the bail application moved on behalf of other co-accused Juman, Ghulam Shabbir, Rajib and Barkat, the affidavits have been filed by the P.Ws. as well as mothers of all the four deceased persons, exonerating them from commission of offence and the learned trial Court vide order dated 19-1-2005, had granted bail to the above co-accused. He submits that case of present applicant is rather on better footings to that of above co-accused. On these scores, learned counsel for the applicant has urged that the present applicant is also entitled to grant of bail on the rule of consistency. Learned State Counsel has frankly conceded the grant of bail to the applicant on the ground that the other co-accused were granted bail on the basis of affidavits and following the rule of consistency, this applicant is also entitled for bail irrespective of his absconsion. In the said incident five persons have lost their valuable lives, there is an admitted enmity between the parties regarding the property. The complainant party has gone to the land of Mour where ugly incident took place. The allegation against the present applicant is his presence on the place of incident armed with rifle. No other overt act has been alleged against the applicant except general allegation of firing on the complainant party. The complainant and P.Ws. have filed their affidavits exonerating the accused persons, which makes the case doubtful and fit for further enquiry into the guilt of the applicant. In the reported case of S. Amanullah Shah v. The State PLD 1996 SC 241 a learned full Bench of the Hon'ble Supreme Court has held that where doubt arises regarding participation of accused in the Commission of crime then it is better to keep accused on bail rather to keep him in jail. In another reported case of Manzoor Ahmed v. State (PLD 1972 SC 81) the Hon'ble Supreme Court has held that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but, no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. In the above reported case, the Hon'ble Supreme Court has also held that it is important to remember that bail is not to be withheld as punishment. It is true that applicant was remained absconder and the absconder loses some of his rights and is not entitled to concession of bail. However, as held by the Hon'ble Supreme Court in State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322) that the rule that fugitive should not be allowed bail is not absolute and open to exception. In the case of M. Sadiq v. State (PLD 1985 SC 182) learned Full Bench of the Hon'ble Supreme Court has held that notwithstanding the abscondence the woman, child, sick and infirm person or where accused otherwise becomes entitled to bail as of right under section 497 (2) Cr.P.C, can be granted bail. In the same matter the bail was allowed to those accused against whom allegations of firing upon the deceased persons were made on the ground that complainant and P.Ws filed affidavits exonerating them. Inspite of abscondence of the applicant the rule of consistency demands that bail should be allowed to the applicant as his case is on better footings than the accused persons who were granted bail. In this case, due to filing of the affidavits by the complainant and P.Ws. a case of further enquiry has been made out and irrespective of abscondence the applicant is entitled to grant of bail. From filing of the affidavits, I am satisfied that there are no reasonable grounds for believing that the applicant has committed a non-bailable offence. For the above reasons, this bail application was allowed by a short order dated 8-4-2008. In case the applicant is found misusing the concession of bail the trial Court is at liberty to initiate action against him in accordance with the law. H.B.T./A-46/K Bail granted.