Bail grant even as absconder

2012 M L D 625

[Sindh]

Before Syed Hasan Azhar Rizvi, J

SOOBA KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1365 of 2011, decided on 14th December, 2011.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Delay of eight hours in lodging F.I.R. was not plausibly explained---Accused was not named in the F.I.R. and complainant had involved him in the occurrence through his supplementary statement after one month of the incident---Eye-witnesses also had not implicated the accused in the crime---Co-accused alleged to have caused fatal injuries to deceased had been released under S.169, Cr.P.C.---No specific injury had been assigned to accused---Culpability of accused, thus, needed further probe under S.497(2), Cr.P.C.---Accused actually had never absconded, but even if he was assumed to be an absconder, he could not be denied concession of bail on the ground of abscondence alone after having been found entitled to bail---Accused was admitted to bail, in circumstances.

Rajada v. The State 2005 PCr.LJ 570; Waseem Iqbal v. The State 2009 MLD 154; Abdul Rasheed v. The State PLD 2003 Kar. 682; Ghulam Mustafa and another v. The State PLJ 1999 Cr.C. Lah. 533 and Safdar Ali v. The State 2008 PCr.LJ 129 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd attempt to commit qatl-e-amd---Bail---Abscondence of accused---Effect---Abscondence of accused alone will not deter the court from extending concession of bail to him, if he is found entitled to such concession.

Kashif Hanif for Applicant.

Abdul Rehman Kolachi, A.P.-G. Sindh.

ORDER

SYED HASAN AZHAR RIZVI, J.---This bail application has been filed on behalf of applicant Sooba Khan, who is facing trial before the Court of learned IInd Additional Sessions Judge Karachi (West) under sections 302/324/34, P.P.C. in Crime No.121 of 2008 of Police Station Gulshan-e-Maymar, Karachi.

Facts leading to the F.I.R. lodged on 12-10-2008 by complainant Saman Ali are that he is living in Village Bakhtawar Rarhi Bin Qasim Town, Karachi and serving as Chowkidar at the land of Taj Malik Society situated at Taiser Town, Gulshan-e-Maymar. Today, he along with his other chowkidars namely Shah Nawaz, Akber and Haji Chandio were present at the said land. At about 1-00 hours 8/10 persons duly armed came on the vehicles, amongst them Abdul Qadir Shaikhani, alias Qadir Bhai, Junaid Shaikhani, Muhammad alias Ghani Bughti, who previously threatened to vacate the said land as they have purchased the said land from MDA. Today, the above-named persons while coming started indiscriminate firing upon us. Junaid Shaikhani made straight fire upon Shah Nawaz, as a result of which one bullet hit on his left side chest and sustained serious injury and died in the way while shifting him to hospital.

The investigation of the above case was conducted and in first investigation the case against the main accused Junaid Shaikhani was disposed of under section 169,Cr.P.C. but thereafter on 10-11-2008 the I.O. remained the complainant and recorded his statement under section 161 Cr.P.C. wherein for the first time he has disclosed the name of the present applicant along with 5 others persons and on the basis of additional statement of the complainant, the present accused was challaned under section 512, Cr.P.C. including 5 other accused. The present applicant was arrested on 30-9-2011 from his house and booked him in F.I.R. No.183 of 2011 under section 13-D. The applicant filed bail application before the learned IInd ADJ Karachi (West), which was dismissed on 5-11-2011.

I have heard Mr. Khashif Hanif, learned counsel for the applicant, Mr. Abdul Rehman Kolachi, learned A.P.-G. Sindh and perused the material available on record.

Learned counsel for the applicant in support of bail plea has contended that name of the applicant does not transpire in the F.I.R. nor any role has been assigned to him and on the contrary the role of causing fatal injury to the deceased has been assigned to Junaid Shaikhani, who has already been released under section 169, Cr.P.C. He has further contended that the complainant has disclosed the name of the applicant in his additional statement after delay of one month. He has referred to 161 Cr.P.C. statements of the P.Ws. and stated that they have never stated anything against the applicant nor even they disclosed the name of the present applicant. He also contended that applicant/accused was available at his residential house, but no efforts were made to join him investigation nor applicant was aware of any pendency of proceedings before any Court of law, therefore no question arisen for abscondence of the applicant. However, he submitted that mere abscondence of an accused will not deter the Court from extending concession of bail if otherwise the applicant is found entitled to the said concession. Lastly, the learned counsel has submitted that even after arrest of the present applicant no identification parade has been taken place nor any evidence has been collected against him nor blood stained earth recovered.

Learned counsel for the applicant in support of his submission has placed reliance upon the cases of RAJADA v. THE STATE (2005 PCr.LJ 570), WASEEM IQBAL v. THE STATE (2009 MLD 154), ABDUL RASHEED v. THE STATE (PLD 2003 Karachi 682), GHULAM MUSTAFA and ANOTHER v. THE STATE (PLJ 1999 Cr.C. Lahore 533) and SAFDAR ALI v. THE STATE (2008 PCr.LJ 129).

Mr. Abdul Rehman, Kolachi, Assistant Prosecutor-General, Sindh has confirmed the above factual position but opposed the grant of bail and contended that it is hardly possible in the circumstances to specify any role of the applicant in the incident that he was amongst the accused party. He further agitated that the present applicant has been absconding since commission of the offence, which disentitle him to the concession of bail.

The case of the prosecution is based on F.I.R., which was lodged with delay of about 8 hours without any plausible explanation, wherein the complainant has not named the applicant in the commission of Crime and the accused Junaid Shaikhani to whom the charge of causing fatal injury to the deceased was attributed has been released under section 169, Cr.P.C. There are three eye-witnesses of the alleged incident including the complainant but none of them have disclosed the name of present applicant. The record shows that the present applicant was involved in the said crime by the complainant after one month of the incident while recording his supplementary statement under section 161, Cr.P.C. on 10-11-2008, he was challaned under section 512, Cr.P.C. and at the time of filing of charge sheet the name of applicant was arrayed as absconding accused. After declaring the applicant as absconder, no attempt was made to arrest the applicant and he was arrested from his residence on 30-9-2011 and booked him in F.I.R. No.183 of 2011 under section 13-D. There is no specific allegation of any particular injury have been caused by the applicant as such his culpability needs further probe within the meaning of subsection (2) of section 497, Cr.P.C. Learned Assistant Prosecutor General Sindh is unable to refer any piece of evidence or role assigned to present applicant in commission of the alleged crime of murder of Shah Nawaz.

In view of such clear position that applicant never absconded and having not been involved in the matter, the case of applicant will require further inquiry with regard to his involvement and till such time he is entitled for concession of bail. Even otherwise if it is to be assumed that applicant was absconder, but mere abscondence of accused will not deter the Court from extending concession of bail if the applicant is found entitled to the said concession.

Accordingly, this bail plea is accepted. The applicant shall be released on bail on his furnishing surety in the sum of Rs.2,00,000 (Rupees Two Lacs Only) and P.R. bond in the like amount to the satisfaction of the trial Court.

N.H.Q./S-135/K Bail allowed.