2000 PLP 3008 (YLR)

Dillwar Hussain for the State. Applicants Kamran Ali and Muhammad Khalid have been arrested for an offence punishable under section 302/34, P.P.C. (F.I.R. No.99 of 1995, Police Station Saeedabad, Karachi). Their bail applications were rejected by the trial Court whereafter they have approached this Court with the same request.

2. F. I. R., lodged by complainant Nizamuddin shows that on 3‑4‑1995 Mistri Saeed Khan and driver Akhtar Ghazi were going towards Saeedabad in Coach No.PE 3673 and at about 2‑30 a.m. When they reached near Rahmania Masjid about 4/5 boys having muffled their faces appeared all of a sudden and started firing. Muhammad Aslam, who was sitting in Coach No.PE‑3678, was hit and he died on the spot. Mechanic Saeed Khan informed the complainant, who lodged report with police and after usual investigation the case was registered against unknown culprits. One Kamran son of Iqbal was arrested on 24‑2‑1996 on pointation of Mechanic Saeed and during interrogation Kamran disclosed the names of the present applicants and further stated that applicant Kamran's bullet had hit deceased Aslam. Applicant Khalid was arrested on 2‑8‑1997 and Kamran on 29‑9‑1999.

3. Learned counsel for the applicants submitted that names of the applicants are not mentioned in the F.I.R. and it is specifically mentioned therein that the faces of the culprits were muffled. The only evidence against the applicants is the version given by co‑accused Kamran to police during interrogation which, according to learned counsel, is inadmissible in evidence. He further submitted that Kamran son of Iqbal was identified by one of the eye‑witnesses yet he was released on bail while the present applicants have not been identified, therefore, their case is on a better footing. He relied on The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322), Pir. Mazharul Haque v. The State (1992 P. Cr. LJ 1910) and Moula Bux's case (1977 SCMR 292).

4. Learned State Counsel opposed the bail on the ground that the names of present applicants transpired during interrogation of co‑accused Kamran who, in fact, was identified by the complainant party and that the applicants were absconders. 5. 1 have considered these contentions in the light of the principles laid down in the authorities cited by the learned counsel for the applicants. It has been held in Maula Bux's case (1977 SCMR 292) that only evidence connecting the accused consisted of disclosure made by two co- accused/respondents caught by the Coastguards which disclosure was not admissible in evidence and even if it was repeated at the trial, by itself it was not sufficient to provide the basis for conviction of an accused.

6. In Pir Mazharul Haq's case (1992 PCr.LJ 1910) the only evidence against the accused was of confession made by the co accused and the accused was admitted to bail. Similarly in Mukhtar Awan's case (1991 SCMR 322) it was held that rule is not absolute that a fugitive from law should under no circumstances be enlarged on bail although abscondence does constitute a relevant factor when examining question of bail.

7. The principles laid down in these authorities support the case of applicants. There is no denying of the fact that when the applicants were arrested no identification test was held through the eye‑witnesses namely Mistri Saeed Khan and Akhtar Ghazi as such the prosecution is left with only the version of co‑accused Kamran son of Iqbal and admissibility of this piece of evidence has vehemently been questioned by the learned counsel for the applicants. As regards the question of abscondence the rule laid down in Mukhtar Awan's case sufficiently supports the contention of learned counsel for the applicant. The main consideration before the Court could not be the allegation of abscondence alone, it should have some nexus with the allegations against the accused in respect of the commission of the offence but in the instant case, as already discussed, the only piece of evidence against the applicant is that his name has been cited by the co accused. Mere abscondence would not be enough to decline bail, if an accused has otherwise a good case on merits. In Jam Sadiq's case (1989 PCr.LJ 1910) the accused remained absconder for a period of more than 9 years and he was admitted to bail by this Court. For the foregoing reasons I am convinced that the bail plea is not without merits and accordingly the application is allowed and the applicants are admitted to bail in the sum of Rs.3,00,000 each with one surety and P.R. Bond in the like amount to the satisfaction of the Trial Court. N:H.Q./K‑14/K Bail granted.