ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

          Crl. Bail Appln. No. S – 240 of 2022.

         

Date

               Order with signature of Judge

      

                            

For Hearing of main case.

 

                                                          -

05-09-2022.

M/s.Rukhsar Ahmed Junejo and Qurban Ali Malano Advocates for applicant.

Mr.Muhammad Ali Nappar Advocate for complainant.

Mr.Khaleel Ahmed Maitlo DPG.

                   -

 

     O R D E R.

 

ABDUL MOBEEN LAKHO, J:- Through the instant bail application, applicant Hazoor Bux @ Hazooro seeks Post-arrest bail in respect of Crime No.04/2017 of Police Station, SITE, Sukkur, registered for offence under Section  302, 201,148, 149, 344, 506/2, PPC.

 

2.        Succinctly, the facts of the case are that on 13.02.2017 complainant Khair Muhammad Tunio lodged FIR alleging therein that his son Rafiq Ahmed left home in his Car but did not return; hence his cousin Javed Ahmed lodged missing report. Subsequently, on 12.2.2017 Muhammad Sulleman and Muhammad Usman informed the complainant that on 02.02.2017 at 09:30 p.m. they at Labour Colony Chowk witnessed that co-accused Rahib, Hidayatullah and present applicant Hazoor Bux armed with TT Pistols were strangulating his son Rafiq Ahmed and forcibly made him sit in their  Car. It is further alleged that on force of weapons, the witnesses also  were forcibly made to sit in Rafique Ahmed’s Car. It is further alleged that deceased Rafiq Ahmed was chocked to death by keeping handkerchief on his face. The car was brought at Abijano Bridge where two unknown persons were already available and waiting, thereafter all the accused in order to destroy the evidence of murder, left the dead body in a Car and pushed the Car in a Nara Canal and thereafter having blind folded both the P.Ws, the accused confined them at some unknown place but they somehow managed to flee from their clutches and informed the complainant about the above incident.

 

3.        Learned counsel for the applicant, inter alia, contended that applicant has been falsely implicated in the instant case by the complainant contrary to the actual facts and circumstance and with  connivance of the local police. He further contended that there is a delay of 11 days in lodgment of FIR for which no explanation has been furnished. That the learned trial Court has dismissed the bail application of the applicant on the ground that the applicant is fugitive from law and absconder from justice, therefore is not entitled for concession of bail; that the applicant has good case for bail on merits and mere absconsion would not deprive him of bail and otherwise the case of the applicant is of further enquiry and no useful purpose would be served while keeping him behind the bars till the conclusion of the trial. Lastly the counsel contended that on similar circumstances, co-accused Rahib and Hidayatullah were granted bail by the learned trial Court during the pendency of trial, as such the rule of consistency also applies in this case and the applicant is entitled for concession of bail during the pendency of trial. In support of such contention, they placed reliance on the cases of Saeed Yousaf v The State and another (2021 S C M R 1295) and Gul Nawab v The State through A.G. Khyber Pakhtunkhwa and another (2022 S C M R 547).

4.        On the other hand, learned counsel for the complainant and learned Additional Advocate General supported the impugned order declining bail to the applicant. He contended that the applicant has been specifically nominated in the FIR and he became fugitive from law and after a lapse of 05 years and 02 months, he was arrested by the police, therefore he does not deserve any leniency by this Court. In support of such contention, they placed reliance on the case of Awal Gul v Zawar Khan and others (P L D 1985 S C 402).         

 

5.      I have heard the arguments of learned counsel for the applicant, learned counsel for the complainant and learned DPG for the State. I have also gone through the material available on record.

 

6.      Admittedly, the name of applicant transpires in the FIR with specific role of chocking/throttling the deceased Rafiq Ahmed. As far as the delay of 11 days in lodging the FIR, is concerned, the same has been fully explained as the NC (Non-  cognizable) was recorded at concerned Police Station when the deceased did not return home though the non-cog report should contain at-least the story of the incident but in this particular case it was only a report of missing of the son of the complainant not knowing the reason of his disappearance whether it was kidnapping or death. As far as the rule of consistency on similar role, co-accused Rahib and Hidayatullah is concerned, who were granted bail during the pendency of trial, does not apply in this case as after grant of bail, they  were convicted and their appeal against conviction, on the specific role which  is pending adjudication. Besides this, after the incident, applicant remained fugitive from law and was arrested by the police after a lapse of 05 years and 02 months. This is a case of unexplained noticeable abscondence and it is a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case. No case for bail is made out. Consequently, bail application is dismissed. The case cited by the applicant are distinguishable.

 

7.      Since, the charge in the case has already been framed, therefore it will be appropriate to direct the learned trial Court to conclude the trial preferably within a period of 02 months.

 

 

                                                                                         JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Akber.