ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 12.10.2015
Mr.
Ghulam Mustafa Rajper Advocate for Applicant.
Mr.
Zahoor Shah APG.
SYED
HASAN AZHAR RIZVI J; Applicant/accused has approached to this court after
rejection of his Bail Application by the learned IInd Additional Sessions Judge, Karachi-Central in Sessions Case No.431/2012 on 24.06.2014.
Heard
learned Counsel for the Applicant, learned APG for the State and perused the
record coupled with cases law carefully with assistances of parties’ Counsel.
A perusal of FIR
shows that incident took place on 23.05.2012 at 1745 hours and FIR was lodged
with the delay of about 7 hours on 24.05.2012 at 0030 hours, for which no
plausible explanation is given by the complainant of such delay. Admittedly
no overt act is attributed to the present applicant even none amongst the P.Ws.
have alleged that he made firing upon them and allegation leveled against the
applicant is of general nature, which requires further inquiry. Moreover, the
present applicant is neither previously convict nor desperate, dangerous or
hardened criminal.
In a case reported
in 2002 MLD 35, it was held that:-
“No overt act
had been attributed to the accused and the question of vicarious liability of
the accused was to be determined at the stage of trial. Accused would be liable
for his own act and he had not committed any over act. Case against the accused
being of further inquiry, he was granted bail.
Two co-accused namely Shams-ur-Rehman and Tehsir Rehman have already
been granted bail by the Trial Court, therefore, rule of consistency shall
apply in the present case as in the case Abdul Salam versus the State reported
in 1980 SCMR 142 it has been held that :-
“Courts to maintain equity of treatment between
persons placed in similar situations and similar circumstances. No distinction
between case of petitioner and case of co-accused. Bail having been allowed to
co-accused, privilege of bai, held, should not have been refused to the
Petitioner”.
7. In
another case of Muhammad Naseem alias Naseemo supra, it has been held that :-
“Rule of consistency. Where one accused is granted
bail then the other co-accused placed in similar and identical circumstances
should, as per rule of consistency, be also released on bail”.
So far as the
absconsion of accused is concerned, the Hon’ble Supreme Court of Pakistan in
the case of Mitho Pitafi versus the State reported in 2009 SCMR 299 it has been
held that
“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 abscondion would not come in way while granted the bail”.
In the case of Rehan versus
the State reported in 2011 P.Cr.L.J. 589, it has been held that
:_
“There is another objection against the Petitioner
that he absconded after the occurrence, he was proceeded against under section
87, Cr.P.C. and a report under section 512 Cr.P.C. had been formulated by the
Investigating Officer against him during investigation. There can be no cavil
to the fact that an absconder certainly substantive and the procedural law but
the fact remains that the evidence qua the abscondence of an accused is always
corroboratory in nature. Difference persons have been differently constituted
by Allah Almighty with variant chemistry. Even an innocent person(s) out of
fear of the police or that of being caught may run away to save his life
instead of facing the situation in a manlike manner. It depends upon the inborn
qualities and genes of an individual, which render a person brave or timid. It
has been so held by the apex Court of the country as well as by this Court on
many occasions that notwithstanding the abscondence, an accused may be found
entitled to grant of bail if his case otherwise fell within the scope of
further inquiry as contemplated under section 497(2), Cr.P.C.”
In another case of Abdul
Ghaffar versus the State reported in 2011 MLD 1649, wherein it has been held
that:-
“Abscondence of accused would not come in his way for
grant of bail if he was otherwise found entitled to bail on merits”.
In view of above
facts, circumstances and case law, I am of the humble view that the case of the
Applicant requires further inquiry and Applicant is also behind the bars for
last about one year and even the charge has not been framed by the Trial Court.
Above are the
reasons of my short order dated 12.10.2015 whereby present bail application was
allowed and the Applicant was admitted to bail subject to furnishing solvent
surety in the sum of Rs.100,000/- (Rupees One Lac only) and P.R. Bond in the
like amount to the satisfaction of the learned Trial Court.
Observations made hereinabove are of tentative nature and the trial
Court shall not be influenced by any such observation.
J
U D G E
Karachi
Dated _________________