IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Appln.
No. S-369 of 2018
|
DATE
OF HEARING |
ORDER WITH SIGNATURE OF
JUDGE. |
For hearing of bail application.
30.07.2018
Mr. Ali Ahmed Khan Advocate for applicant.
Mr. Ghulam Murtaza Korai Advocate for Complainant.
Mr. Mir Afzal Hussain Talpur. A.P.G.
********
Through this post-arrest bail
application, applicant Hafeez alias Abdul Hafeez has impugned order dated 09.06.2018
passed by learned I-Additional Sessions Judge, Sukkur, whereby his bail
application was declined.
2. Learned Counsel for applicant
submits that role of instigation has been assigned to the applicant even his
presence at the scene of offence has not been shown in the FIR. He further
submits that bail has been granted to co-accused Abdul Latif by the trial Court
on two ground that mere presence has been shown at the scene of offence and
complainant has filed affidavit in which he has exonerated him from the
commission of crime. He further submits that the case of present applicant is
on better footing and rule of consistency is applicable in this case. He
further submits that applicant is behind the bars since last three years and
during pendency of case complainant has filed affidavit before the learned
trial Court in which he has exonerated the present applicant from the
commission of offence and has raised no objection for grant of bail. He prayed
for grant of bail to present applicant.
3. Mr. Ghulam Murtaza Korai,
Counsel appearing on behalf of complainant has also recorded no objection for
grant of bail in view of affidavit filed by the complainant.
4. Learned Assistant prosecutor
General has opposed the grant of bail on the ground that applicant was
absconder and he remained fugitive from law for about 10 years. He relied upon
case of Mst. Ravida v. Amjad reported in 2018 SCMR 28 and Suhail Waqar alias
Sohaila v. State reported in 2017 SCMR 325.
5. Heard learned Counsel for
applicant, learned Counsel for complainant as well as Assistant Prosecutor
General and perused the record.
It appears that presence of
applicant has not been shown at the place of incident and only role of
instigation has been assigned to him. It is also admitted fact that bail has
been granted by the learned trial Court to co-accused whose presence has been
shown at the place of incident and the case of present applicant is on better
footings. Complainant has also filed affidavit before learned trial Court in
which he has exonerated the applicant from the commission of offence, mere abscondance of the accused will not come in
his way in view of the dictum laid down in the case of Mitho Pitafi v. The State reported in 2009 SCMR 299 in
which the Honourable Supreme Court has observed as under;
“According to FIR neither any role has been attributed to the
petitioner nor his presence has been shown at the time of occurrence. Vide
order dated 18.02.2002, co-accused namely Jam Patafi has been released on bail
by the learned trial Court bu the concession of bail was disclosed to the
petitioner on the ground that he was fugitive from law. Learned High Court of
Sindh as well as learned trial Court has rejected the bail of petitioner on
account of absconsion and not on merit. It is well settled principle of law
that bail can be granted if an accused has good case for bail on merit and mere
absconsion would not come in way while granting the bail. We are, prima facie,
of the view that the learned High Court has not appreciated the facts and circumstances
of the case in its true perspective while declining bail to the petitioner”.
6. The case law relied upon by
learned Assistant Prosecutor General is on different footings.
7. In view of above circumstances, applicant
Hafeez alias Abdul Hafeez is admitted to bail in FIR bearing Crime No.29 of
2005 under Sections 302, 324, 109, 34 PPC registered at Police Station, Site
Sukkur subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees
Two lacs) and PR bond in the like amount to the satisfaction of trial Court.
Bail application stands
disposed of in the above terms.
J U D G E
Ihsan.