IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
CRL.BAIL.APPLICATION NO. D-568 of 2009
Present: Mr. Shahid Anwar Bajwa -J
Mr. Mohammad Ali Mazhar-J
Applicant : Anwar Ali through Mr.Muhammad Aslam
Respondent: State through Mr. Syed Sardar Ali Shah, Assistant
Date of hearing: 09.08.2011
O R D E R
Muhammad Ali Mazhar-J., The applicant has brought this bail application in Crime No.63 of 2000, lodged under Section 302/34 P.P.C at Police Station, Khanpur, Mahar Taulka, Ghotki, District Sukkur.
2. Succinctly the facts of the case are that the complainant Hajjan Son of Gohram Pitafi lodged an FIR on 07.10.2000 as under:-
“About 8/9 years back, one Sadoro Pitafi was murdered, his son Dholio and others were making publicity that the cousins of complainant namely Pir Bux and Faqir Muhammad have committed the murder, thereafter, faisla was taken place between them before the nekmard of their community but they had not accepted the faisla and were saying that they will take the revenge. Today, I together with my brother Sajjan, sister’s son Majeed and Hameed, both sons of Jeeano Pitafi were gathered adjacent to their houses. It was about 5:00 p.m., 1. Mehrab Son of Usman Pitafi armed with Kalashnikov, 2. Dholio Son of Sadoro Pitafi armed with Rifle, 3. Mehboob Son of Usman Pitafi, 4. Anwar Son of Umar Pitafi armed with shot gun arrived and gave lalkara to the complainant by saying the complainant that they would not spare Sajan and would murder him, accused Mehrab with his Kalashnikov fired upon Sajjan who was standing at some distance from him, who received fire shots and fallen down, accused Dholio also inflicted fire shot injuries upon Sajan with his Rifle, one fire shot hit upon right arm of Sajan. On our hue and cries, accused fled away towards western side by saying that they had taken revenge of Sadoro Pitafi, thereafter, we along with our witnesses gathered and brother Sajjan had received bullet injury on right side of his neck, fingers of right arm and other parts of the body and was died”.
3. The bail plea of the applicant was declined by the learned trial court vide order dated 25.05.2011.
4. We have heard Mr.Muhammad Aslam Shahani Advocate for the applicant and Mr.Syed Sardar Ali Shah, Assistant Prosecutor General for the State.
5. The learned counsel for the applicant contended that the names of eyewitnesses are not disclosed in the FIR. It was further contended that the case of present applicant requires further probe. Specific role was assigned to the co-accused Mehrab and Dholio but they have already been acquitted. The learned counsel further argued that the learned trial court did not touch the merits of the case but the bail application was dismissed on the ground of abscondence of the applicant and the entire focus of the impugned order is based upon the abscondence and even the learned trial court has failed to consider the material aspects of the case that the specific role assigned to co-accused in the FIR who made fire and inflicted injuries to deceased Sajan have already been acquitted while no specific role has been assigned to the present applicant in the FIR except the alleged lalkara which is always a question of further inquiry. In support of his argument, the learned counsel for the applicant relied upon 2009 SCMR 299 (Mitho Pitafi vs. State) in which, the hon’ble Supreme Court has held that the learned High Court as well as learned trial court rejected the bail of the petitioner on account of abscondence and not on merits. It is well settled principle of law that bail can be granted if an accused has good case for bail on merits and mere abscondence would not come in the way while granting bail. The hon’ble Supreme Court further held that 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. Finally in this case, bail was granted to the applicant and the impugned order passed by the High Court was set aside.
6. Conversely, the learned APG for the State, though conceded to the state of affairs that the bail application was not dismissed by the trial court on merits but the bail was simply declined due to abscondence of the applicant and he further conceded to that the main accused who have inflicted injuries and caused the murder have already been acquitted by the trial court. Notwithstanding, he opposed the bail application only for the raison d'ętre of protracted abscondence.
7.After hearing the pros and cons, we have reached to the conclusion that the trial court has dismissed the bail application without touching the merits of the case and no findings have been articulated to spell out whether applicant has committed any overt act, predominantly in the circumstances where the co-accused Mehrab and Dholio who had inflicted fire shot injuries upon the deceased Sajan have already been acquitted by the trial court vide Judgment dated 11.10.2005. The hon’ble Supreme Court in various cases repeatedly held that mere abscondence does not disentitle the person from applying bail and in the case reported in 2009 S.C.M.R 299, the hon’ble Supreme Court has held that bail can be granted if an accused has good case for bail on merits and mere absconsion would not come in way while granting the bail. At this juncture, we would like to refer to a judgment reported in 1995 S.C.M.R 1373, (Rasool Muhammad vs. Asal Muhammad and others), in which the hon’ble Supreme Court held that disappearance of a person named as murderer/culprit after the occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of the guilt of an accused person. It may, however, create suspicions against him but suspicious after all are suspicions. In another judgment reported 1999 S.C.M.R 1220 (Muhammad Khan vs. State), the hon’ble Supreme Court has held that it is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of the guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It was further held that in any case abscondence can never remedy the defect in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt. In the judgment reported in 1999 S.C.M.R 304 (Gul Khan vs. State), it was held that the abscondence of an accused itself may not point out towards its guilt. It depends upon the facts and circumstances of each case as to whether abscondence is a pointer or not. Abscondence as a circumstance proving the guilt is based upon the assumption that the guilty man tries to escape from the police violence, the innocent man rushes to the police and vindicate his innocence. Such assumption is based upon several other assumptions and it would not be save to held that abscondence of an accused automatically amounts to prove of his guilt. Abscondence per se is not sufficient to prove the guilt, but abscondence of an accused for a long time for which no satisfactory explanation is given by the accused coupled with other evidence on record would be the criteria to determine the guilt or innocence of an accused person. In another judgment reported in 1991 S.C.M.R 322 (State .vs. Mian Mukhtar Ahmed Awan), the hon’ble Supreme Court went on to hold that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added abscondence does constitute a relevant factor when examining the question of bail.
8. In the FIR only allegations against the present applicant is that he was present at the place of incident with shot gun and gave lalkara along with co-accused persons while Mehrab and Dholio inflicted fire arm injuries to deceased Sajan. We are fully fortified by the judgment reported in 1996 SCMR 1654, (Muhammad Sadiq and another Vs. State), in which the honorable supreme court held that allegation against petitioners, are that they kept on firing and raising Lalkara. There is no injury by means of a pistol and 7 mm rifle. The allegation of Lalkara against the petitioners is proverbial. Though the petitioners were stated to be armed with pistol and rifle, but they did not cause any injury to the complainant party. The petitioners were admitted to bail.
9. The whys and whereforces lead us to a conclusion that there is no absolute rule that a fugitive should under no circumstances be enlarged on bail and it is well settled principle of law that bail can be granted if an accused has a good case for bail on merit and mere absconsion would not come in the way while grating the bail. The role of the present applicant whether he had accompanied with the co-accused with common intention to commit the offence can only be decided after the trial. This important aspect has to be adjudged with due care and caution keeping in view the weird circumstance of prosecution case where the co-accused who have been attributed and assigned crucial role connecting them with the offence have already been acquitted therefore, we are, of the considered view that the case of present applicant requires further inquiry and in the peculiar facts and circumstances of the case he is entitled to be enlarged on bail. The honorable supreme court in its judgment reported in PLD 2001 Supreme Court 378 (Muhammad Yaqoob, Sub-Inspector vs. State) held that a common intention presupposes prior concert and requires a prearranged plan, because before an accused can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof or prior concert, or proof of circumstances which necessarily led to that inference or that incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.
10. The applicant was granted bail vide our short order dated 09.08.2011, subject to furnishing solvent surety in the sum of Rs.500,000/= (Rupees Five Hundred Thousand Only) and P.R.Bond in the like amount to the satisfaction of the trial Court. The above are the reasons of our short order.