ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Cr. B.A No: 921/2009

 

 

For hearing

 

06-01-2010

 

Mr. Mohammad Iqbal Memon and Mr. Nusrat Hussain Memon for applicant.

Mr. Zulfiqar Ali Jatoi, DPG.

 

*****

 

 

                        Facts of the alleged crime have been reproduced by the learned Court below in its order dated 12-09-2009 in the following words:-

“Compliant is that I own 08 acres land in deh Reni wherein I have raised a house and live there. My house is facing toest. It has protection wall except hedge on eastern side. It has entrance on southern side. I have a buffalo and goats. On 30-05-2000 I, my son Mohammad Ali, Hyder and other members were in the house. Electric bulbs were on. We were sitting on cots where 05 persons came there. One had Kalashnikov and other had lathies. In order to control us, they caused lathi blows to the children. One of them caused blow to me. We resisted. The culprits with Kalashnikov which hit my wife Mst. Sahib Khatoon aged 36 years who feel down. We raised cries whereupon P.Ws our relation Mohammad Nawaz son of Biland Mehar and Mohammad Akbar son of Wahid Bux Mehar came running who also challenged the accused. It was 9-00 p.m. time. We saw the accused on electric light. They are not known previously. We saw Mst. Sahib Khatoon she had bled from the wound and was dead. I went to inform Nekmard Lal Bux son of Khair Mohammad Mahar who advised to report the matter. I have now come for report that the above unknown culprits trespassed into the house and on our instance have killed my wife Mst. Sahib. I am complainant. Action be taken.”

 

                        Co-accused Mohammad Ayoob has been granted bail by this Court vide order dated 01-08-2001 in Cr. B.A No: 269/2001 and the operative part reads as under:-

“We have given anxious consideration to the contentions of learned counsel and have perused the record. Facts as stated above are not disputed. In the instant case admittedly the applicant is not named in the FIR. Earliest 161 Cr.P.C statements of eye witnesses were recorded after three days of the alleged incident i.e. 3rd June 2000 applicant is implicated and shown to be carrying lathi. As far as the statement of independent persons recorded by the prosecution under section 164 Cr.P.C the present applicant has not been implicated. The statement of eye witnesses were also recorded by the third I.O under section 164 Cr.P.C on 23rd August 2000, almost after three months from the date of alleged incident who seddled the present applicant with the K.K, such change of version by the same set of witnesses do makes out a case of further enquiry and possibility of pre meditation and consultation can not be ruled out”.

 

                        The present applicant was declared a proclaimed offender on 12-04-2002. In the meanwhile, the trial continued in the Court below and all the material witnesses have been examined and only I.O is yet to be examined. It appears that in August, 2009, the present applicant was arrested. After his arrest, bail application was filed in the Court below which bail application has been dismissed vide order dated 12-09-2009, hence the present bail application.

                        Learned counsel for applicant stated that name of the applicant is not mentioned in the FIR. He further submitted that statements of 03 witnesses were recorded U/S: 161, Cr.P.C after three days of incident and two of these witnesses are not residents of the village where the incident took place. He further submits that statements U/S: 164, Cr.P.C were recorded after three months. He pleaded that there are contradictions in statements of the witnesses.

                        Learned DPG opposed grant of bail. He submitted that accused was declared proclaimed offender on 12-04-2009 and he remained absconder for 09 years and when the trial against co-accused was in its final stages, he managed to get himself arrested. Learned counsel submitted that since accused are from the same caste, it is not conceivable that the present applicant did not know about pendency of the trial.

                        We have gone through the submissions made by the learned counsel. The learned Court below has rejected the bail application primarily on the ground that accused has remained absconder for a period of 09 years and has surfaced when almost all material witnesses have been examined. The learned Court below has relied upon Sher Ali @ Sheri V. the State (1998 SCMR 190). In that Judgment in respect of the absconsion while relying on (PLD 1985 SC 480) wherein it was observed that it is well established proposition that unexplained noticeable abscondance disentitles a person to the concession of bail notwithstanding merits of the case and the principle being that the accused by his conduct delayed investigation qua him in which valuable evidence like recovery has been lost or is made impossible to be collected, the Supreme Court laid down the law as under:-

“In our view, simpliciter an act of abscondance on the part of an accused person will not disentitle him to claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the statutory period mentioned in clause (a) or clause (b) of aforementioned third proviso, as the case may be, has expired. However, if the act of abscondance has contributed towards the delay of the trial, in that event, an accused person would not be entitled to seek bail on the ground of statutory delay”.

 

                        In Mitho Pitafi V. State (2009 SCMR 299), the Honourable Supreme Court observed that it is well settled principle of law that bail can be granted if accused has good case for bail on merits and mere absconsion will not come in the way while granting bail. In this case, thereafter, the Supreme Court allowed bail because case on merits for grant of bail was made out.

                        Learned DPG has not been able to point out, as far as the merits are concerned, any material on record which could disentitle the present applicant to grant of bail. Admittedly, the applicant is not named in the FIR. Admittedly, co-accused Mohammad Ayoob has been granted bail. Admittedly, death occurred because of a firearm injury and K.K has been alleged to be with Mohammad Ayoob whereas as far as present applicant is concerned, neither any recovery has been made from him nor any allegation of possessing firearm has been attributed to him. 

                        Therefore, in our view, the accused is entitled to facility of bail. Consequently, he is admitted to bail for a sum of Rs. Rs. 5,00,000/- (Five Hundred Thousands) with P.R bond and one surety in the like amount to the satisfaction of the Additional Registrar of this Court.

                        Before parting with the Judgment, it is observed that the trial Court shall not be influenced by any of the observations made above while deciding guilt or innocence of the persons standing trial before it.

 

                                                                                                Judge

 

Judge

 

Rashid