Bail of Accused can not be refused on abscondance

2010 M L D 1084

[Karachi]

Before Ali Sain Dino Metlo, J

HAMAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-237 of 2009, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(i), F(i), 147, 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---Conduct of the complainant, in whose presence, his son was done to death, in not reporting the matter to Police immediately, and going to his village first and coming back to the place of incident, not finding the dead body at the place of incident; and then searching for it in the hospitals, and then finding the dead body at the same place, militated against reasonableness of grounds put forward by the prosecution for believing accused guilty of the offence, particularly when the ocular evidence stood controverted by the medical evidence---Case of accused, in circumstances was fully covered by subsection (2) of S.497, Cr.P.C., entitling him to bail---Accused could not be refused bail on the ground of his abscondence, particularly when he was not shown to have been declared proclaimed offender by the Trial Court and no proceedings under Ss.87, 88, Cr.P.C. were shown to have taken against him---Accused was admitted to bail, in circumstances.

1994 PCr.LJ 541; 2000 PCr.LJ 2053; 2002 PCr.LJ 791; 2002 PCr.LJ 1062; Liaqat Ali v. The State, 2005 P.S.C. 61; 1989 SCMR 239; 2006 PCr.LJ 184; 1999 PCr.LJ 898; 1999 PCr.LJ 1105; 2001 PCr.LJ 134; 2009 PCr.LJ 472; 2009 PCr.LJ 540 and 2009 MLD 384 rel.

Ashique Illahi Sundrani for Applicant.

Altaf Hussain Surahio for the Complainant.

Naimatullah Bhurgri for the State.

ORDER

ALI SAIN DINO METLO, J.---Heard Messrs Ashique Illahi Sundrani, Advocate for the applicant, Altaf Hussain Surahio, Advocate for the complainant, and Naimatullah Bhurgri, State Counsel. The latter has no objection for the grant of bail as, according to him, there was inordinate delay without plausible explanation in reporting the matter to police and ocular evidence is contradicted by medical evidence.

According to the complainant, on 26-2-2008, at 8-30 p.m. on Shikarpur-Village Hajano link road, near Government tubewell, complainant's son Abdul Ghaffar was killed by applicant Hamal and others because they had abducted his (complainant's) daughter Mst. Shabana about six months back. The incident was allegedly witnessed by complainant Abdul IIameed, his maternal cousin Asif Ali and co-villager Rahim Bux. It is alleged that on that night they had gone to Shikarpur to complain against the conduct of the applicant and his associates to their nekmard Iran Khan and on their way back to their village at about 8-30 p.m. they confronted applicant Hamal and ten others near Government tubewell. Out of them, eight, including the applicant, were identified, while three were not previously known to them, but they claimed that they had seen them very clearly on the light of their torches and would be able to identify them. It is alleged that applicant Hamal, armed with shotgun, fired pointblank on the abdomen of the deceased and his companion absconding accused Attaullah fired pointblank on his left temporal. It is further alleged that all the other accused gave blows to the complainant with the butts of their shotgun. It is further alleged that due to fear the complainant and his two companions ran away to their village and returned back along with their co-villagers to the place of incident, but failed to find out the dead body and, therefore, they went to Civil Hospital in search of the dead body. In the morning they again went to the place of incident and found the dead body of the deceased lying there and thereafter they went to Police Station Lakhi Gate situated at the distance of only 2/3 kilometers from the place of incident and reported the matter to police on 27--2-2008, at 0900 hours.

Learned counsel for the applicant contends that the applicant had no motive to kill the deceased, as the complainant party were not involved in abducting or enticing their lady, but on the contrary the applicant party had allegedly abducted complainant's daughter, though, according to him, she had married with one Mansab Ali son of Jan Muhammad Hajano of her free-will.

According to him, the complainant party in order to take revenge of their lady having married against their wish had been constantly making attacks upon them, for which they had filed cases against them.

Referring to the postmortem examination report, the learned counsel argued, that there was glaring contradiction between medical evidence and the ocular evidence inasmuch as according to the ocular evidence the applicant had fired pointblank on the abdomen of the deceased, whereas according to the postmortem examination report there was wound of exit on the abdomen, of which the corresponding wound of entry was on the back chest of the deceased. Referring to the medical certificate of the complainant, learned counsel for the applicant contends that according to the ocular evidence all the accused had given blows with the butts of their guns to the complainant, whereas the doctor could find only one abraded swelling on his nose. He has relied upon the precedents reported in 1994 PCr.LJ 541 (Karachi), 2000 PCr.LJ 2053 (Karachi), 2002 PCr.LJ 791 (Karachi) and 2002 PCr.LJ 1062 (Peshawar).

The learned counsel for the complainant has opposed bail on the ground that name of the applicant appears in the FIR., and the delay is properly explained. According to him, the ocular evidence was supported by medical evidence and deeper appreciation of evidence was not permissible at bail stage. In support of his contentions, he has relied upon Liaqat Ali v. The State, 2005 P.S.C. 61 (Supreme Court of Pakistan), 1989 SCMR 239, 2006 PCr.LJ 184 (Peshawar), 1999 PCr.LJ 898 (Peshawar), 1999 PCr.LJ 1105 (Lahore), 2001 PCr.I.J 134 (Lahore), 2009 PCr.LJ 472 (Karachi), 2009 PCr.LJ 540 (Karachi) and 2009 MLD 384 (Peshawar).

The conduct of the complainant, in whose presence his son was done to death, in not reporting the matter to police immediately and going to their village first and coming back to the place of incident, not finding the dead body at the place of incident and then searching for it in the hospitals and then finding the dead body at the same place, militates against the reasonableness of grounds put forward by the prosecution for believing the applicant guilty of the offence, particularly when the ocular evidence stands controverted by the medical evidence. The precedents cited by the learned counsel for the complainant have no relevance to the facts and circumstances of the present case. In such circumstances, the case of the applicant is fully covered by subsection (2) of section 497, Cr.P.C. and he is entitled to bail. He cannot be refused bail on the ground of his abscondence, particularly when he is not shown to have been declared proclaimed offender by the learned trial Court and no proceedings under sections 87, 88, Cr.P.C. are shown to have taken against him. In such circumstances, the applicant is directed to be released on bail on giving one surety in the sum of Rs.400,000 and personal bond in the like amount to the trial Court.

H.B.T./H-42/K Bail granted.