2005 P Cr (PLP)

Rajada son of Hassan seeks his post‑arrest bail in case F.I.R. No.50 of 2003 dated 2‑3‑2003 registered at P.S. Mangtanwala District Sheikhupura for offences under sections 337‑A(i), 137‑A(iii), 337‑F(i), 337‑F(v), 337‑H(ii), 337‑L2, 452, 148 and 149, P.P.C.

2. The case of the prosecution as unfolded by Ali Ahmed son of Shahadat complainant in the F.I.R. was that on 1‑3‑2003 around 9 p.m. he along with his brothers Muhammad lqbal and Abid and his mother were present in the house when somebody knocked at the door of the house; that he went close to the door and inquired as to who it was on which the petitioner responded that it was him; that on opening the door the petitioner who was armed with a Sota, Zakar armed with rifle .44 bore, Shamoon armed with double‑barrelled .12 bore gun entered the courtyard of the house; that the petitioner raised a Lalkara that Ali Ahmed etc. should be taught a lesson for abusing Zakar; that Shamoon, Zakar and the petitioner started beating them up with the butts of their respective weapons and Sotas; that he, Muhammad lqbal and Abid Htissain fell down after being seriously injured; that on the noise raised by him Yaqoob alias Nawaz son of Noor Ahmed and Shama son of Nazar Hussain and others came at the spot; that the petitioner and his companions ran away from the spot while indulging in aerial firing. The motive according to the complainant was that about 11 days back Zakar Hussain and Abid Hussain had an altercation on account of which the petitioner and his companions had been nurturing some grudge as a result of which after due deliberation they had launched the attack causing injuries to them.

3. The petitioner was arrested in this case about 10 months back and is in custody ever since. His petition for post‑arrest bail did not find favour with the learned Additional Sessions Judge who dismissed the same on 7‑4‑2004. Hence the. instant petition.

4. Mr. Muhammad Anwar Bhaur, Advocate in ,support .of petitioner's plea for post‑arrest bail argued that there was unexplained delay of 20 hours in lodging the F.I.R.; that no specific injury has been attributed to. the petitioner; that offences charged with do not attract the prohibitory clause of section 497(1), Cr.P.C.; that the petitioner is an old man of 70 years of age and was no longer required for further investigation; that although the petitioner initially remained absent and had been declared proclaimed offender yet he was arrested ten months back and is in custody ever since his arrest; that no formal proceedings under sections 87/88, Cr.P.C. had been taken against the petitioner.

5. On the other hand the learned counsel for the State Miss Raisa $arwat opposed the grant of bail and submitted that abscondence of the petitioner disentitled him to the concession of bail; that both the co- accused of the petitioner are still at large; that the mere fact that the offences charged with do not attract the prohibitory clause does not ipso facto entitle the petitioner to the concession of bail.

6. I have considered the arguments of the learned counsel for the parties at considerable length and have carefully examined the record brought by Muhammad Ishaq, S.‑I. There is no substance in the argument of the learned counsel for the petitioner that unless formal proceedings are taken under sections 87/88 of the Cr.P.C. an accused person cannot be treated as proclaimed offender. In this connection it would be advantageous to refer to the case of Muhammad Hussain alias A Muhammada v. The State 1994 SCMR 999 where the Honourable Supreme Court observed that for the purpose of bail the accused can be considered to be a proclaimed offender without technical satisfaction of requirements of sections 87/88, Cr.P.C. However, there is weight in his argument that mere abscondence of an accused will not deter the Court from extending concession of bail if otherwise the petitioner is found entitled to the said concession. Even otherwise in this case the petitioner had been arrested about ten months back but despite that no tangible progress has been made in the trial. The petitioner is admittedly an elderly man of about 70 and the offences charged with do not attract the prohibitory clause of section 497(1), Cr.P.C. there is no specific allegation of any particular injury having been caused by the petitioner as such his culpability and vicarious liability needs further probe within the meanings of subsection (2) of section 497, Cr.P.C. I have not been impressed by the argument of the learned counsel for the State that grant of bail to the petitioner would release pressure on him and the two B absconding accused who are the real sons of the petitioner would never appear. The petitioner cannot be retained in custody with a view to exerting or retaining pressure on him to produce the absconding co -accused.

7. Resultantly this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.30,000 with two sureties each in the alike amount to the satisfaction of the learned trial Court. H.B.T./R‑95/L Bail granted.