2009 M L D 779
[Karachi]
Before Abdur Rehman Faruq Pirzada, J
MUHAMMAD HAYAT---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.389 of 2007, decided on 9th October, 2008.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 147 & 148---Bail,
grant of---Further inquiry---Accused, as per prosecution, being armed with gun T.T.
Pistol and allegedly made ineffective firing upon the complainant party, whereas co-
accused directly fired with Kalashnikov upon deceased, who died due to such fire-arm
injuries---At bail stage, it could not be ascertained as to whether accused could be held
vicariously liable for the commission of alleged offence---Said question could be
appropriately determined at the stage of trial, when sufficient material would be
brought forth on record---Incident, according to the prosecution, occurred at night time
and the identification of accused was made in the torch light only---Identification in
the light of torch was a weak piece of evidence and implicit reliance could not be
placed on it, especially when the torch in question was never produced during
investigation---Background of previous enmity existed between the parties---Simple
abscondence of accused should not come in the way of grant of bail as accused would
be entitled to bail under S.497(2), Cr.P.C. as a matter of right and not as a matter of ,
concession---Case of accused requiring further enquiry to establish his guilt, as
envisaged by S.497(2), Cr.P.C., he was entitled to the concession of bail.
Qalib Abbas v. The State 2000 PCr.LJ 464; Laiq Muhammad v. The State 2000 PCr.LJ
1229; Muhammad Sadiq and another,v. The State 1996 SCMR 1654; Sharbat and
another v. The State 2003 MLD 1191; Muhammad Saeed Mehdi v. The State 2002
SCMR 282; Mubashir Ahmed v. The State 1989 PCr.LJ 244; The State v. Mukhtar
Ahmed Awan 1991 SCMR 322; Jam Sadiq Ali v. The State 1989 PCr.LJ 1910; Abdul
Wahab v. The State 2003 YLR 1915; Sirajuddin v. Kala PLD 1964 SC 26; Nasij Gul v.
Khalid Khan 1989 SCMR 899; Sher Ali v. The State 1998 SCMR 190; 2004 PCr.LJ
1785 and 1995 PCr.LJ 1316 rel.
(b) Criminal trial---
----Abscondence---Categories of abscondence: Two categories of abscondence viz., the
persons who escape and become absconders with a guilty mind; and the persons who
could be innocent, but they abscond being scared of the repercussions of a criminal
case lodged against them.
Asif Ali Abdul Razzak Soomro and Asif Safdar Ghauri for Applicant.
Altaf Hussain for the State.
ORDER
ABDUR REHMAN FARUQ PIRZADA, J.---Through this application, applicant
Muhammad Hayat seeks bail in the case vide Crime No.4 of 2002, Police Station Garhi
Hassan, District Jacobabad, for offence under sections 302, 324, 337-H(2), 147, 148,
P.P.C.
2. The F.I.R. was lodged by complainant Ghous Bakhsh at Police Station Garhi Hassan
on 15-5-2002, at 5-15 a.m. As briefly stated the prosecution case is that the
complainant was hari on the lands of Muhammad Yousif Khan, whereas his father
Muhammad Usman looked after the "Dera". The complainant party had old dispute
with Karim Bakhsh and others over the matter of "karap". On the night of incident the
complainant his father Muhammad Usman, uncle Muhammad Hassan and cousin
Muhammad Suleman, after taking meals, went to sleep on the separate cots. At 1215
a.m. at night, the complainant woke up on a sound, and saw six persons who were
identified in the torchlight to be Wahid Bakhsh, Karim Bakhsh, Muhammad Hayat,
Illahi Bakhsh, Ghulam Hyder alias Babu and Muhammad Nawaz. Accused Wahid
Bakhsh was armed-with kalashinkov, Karim Bakhsh was armed with T.T. Pistol
whereas remaining accused were armed with guns. Wahid Bakhsh made a challenge
that they would take revenge for the unjustified murder of his brother Muhammad
Bakhsh Khoso for allegation of "karap" by targeting Muhammad Usman. Within the
sight of complainant party accused Wahid Bakhsh fired a burst of kalashinkov upon
complainant's father Muhammad Usman thereby hitting him on his head, who fell
down while raising a cry. The remaining accused persons with intention to commit
murder fired straight shots upon the complainant party, who saved themselves while
falling down. Thereafter all the accused persons ran away while raising slogans and
making aerial firing. Muhammad Usman was found to be dead. Thereafter the F.I.R.
was lodged.
3. The case was challenged on 7-6-2002, in which the applicant was shown as
absconder. Subsequently he was arrested on 18-1-2007.
4. Learned counsel for applicant has contended that no direct role of firing upon the
deceased was ascribed to the applicant. He was only attributed the role of making
ineffective firing upon the complainant party. The applicant is confined in custody
since January, 2007. Co-accused Wahid Bakhsh who was ascribed direct role of firing
upon deceased Muhammad Usman, has been granted bail by this Court vide Order,
dated 20-10-2005. However accused Wahid Bakhsh was granted bail mainly on the
ground of his minor age. The incident occurred at night time and the identification was
allegedly made in the torchlight but the torch was not produced being an important
piece of evidence.
5. Mr. Altaf Hussain Surhio, learned State counsel has conceded to the grant of bail, on
the ground that no effective role was ascribed to the applicant and he is confined in
custody since January.
6. I have considered the arguments of both the learned counsel and have perused the
material available on record. So far as the merits of the case are concerned, as per
prosecution. case the applicant being .armed with gun, allegedly made ineffective
firing upon the complainant party, whereas co-accused Wahid Bakhsh directly fired
with kalashinkov upon deceased Muhammad Usman, who died due to such fire-arm
injuries.
7. At this stage, it cannot be ascertained as to whether the applicant can be held
vicariously liable for the commission of alleged offence. In fact the same question can
be appropriately determined at the stage of trial, when sufficient material is brought
forth on record. Reference may be made to the authority Qalib Abbas v. The State
(2000 PCr.LJ 464), wherein it was held as under:--
"Contending that no overt act has been ascribed to the petitioner save for the
alleged ineffective kalashinkov's firing that too subsequent to the event, factum
whereof stands refuted by the admitted non-recovery of any crime-empty of the
weapon in question nor any other incriminating article has been recovered from
him, who is even alien to the motive on which count he has already suffered
nearly six months internment."
In the case of Laiq Muhammad v. The State reported in 2000 PCr.LJ 1229, the bail was
granted to applicant, when allegedly the firing attributed to accused was found
ineffective, whereas the death of deceased was traceable to firing made by co-accused.
In the case of Muhammad Sadiq and another v. The State (1996 SCMR 1654), the
Hon'ble Supreme Court observed that accused were alleged to have kept on firing and
raising lalkara at the time of occurrence; although accused were armed with a pistol
and rifle, yet they did not caused any injury to the complainant party; accused were
admitted to bail in the circumstances.
8. As per prosecution case, the incident occurred at night time at a Dera on lands and
the identification of accused was made in the torchlight only. It has been consistently
held by the Hon'ble superior Courts that the identification in the light of torch has been
considered as a weak piece of evidence and implicit reliance cannot be placed on it.
Moreover, admittedly even the torch in question was never produced during
investigation, thereby leaving prosecution devoid of an important substantial piece of
evidence.
9. On the point of abscondence, it can be understandable that there are two categories
of abscondence viz. the persons who escape away and become absconders with a guilty
mind, and the persons who may be innocent, but they may abscond away, being scared
of the repercussion of a criminal case lodged against them. In the present case, it has
been urged that there is background of previous enmity and three real brothers have
been implicated in the case as such the false implication of the applicant cannot be
ruled out in the circumstances of the case. It has been consistently held in the latest
authorities of law by the Hon'ble apex Court as well as High Courts that the cases in
which on the merits of the case a person in entitled to bail then abscondence simpliciter
may not come in their way.
In the case of Sharbat and another v. The State reported in 2003 MLD 1191, it was laid
down as under:--
"In the backdrop of the above situation, when on merits the applicants have a
good case, the abscondence alone should not come in the way of grant of bail.
No doubt a fugitive from law loses some of his rights but he does not loose the
right of bail for ever and they are also entitled to fair and just trial within a
reasonable time. The observations made by the Hon'ble Supreme Court of
Pakistan in a case of Muhammad Saeed Mehdi v. The State reported as 2002
SCMR 282 are relevant in this context. The authorities cited by learned counsel
for applicants, Mubashir Ahmed v. The State (1989 PCr.LJ 244), The State v.
Mukhtar Ahmed Awan (1991 SCMR 322) and Jam Sadiq Ali v. The State (1989
PCr.LJ 1910) also support bail plea."
In a D.B. authority of High Court of Sindh Abdul Wahab v. The State, reported in 2003
YLR 1915, it was held:--
"It is important to note that conduct of an accused person soon after the
incident plays important role in determining the guilt of an accused person. It is
pointed out that disappearance of a person named in a heinous crime such as
murder is natural phenomenon whether named rightly or wrongly. Some
persons having guilty conscious abscond and some persons being innocent
dragged in the case due to enmity also abscond. Reference is invited in a case
of Sirajuddin v. Kala PLD 1964 SC 26 and at page 36 it has been observed as
under:--
"A person who has been named as murder, whether rightly or wrongly', usually
makes himself scarce."
While giving the conduct of various persons nominated in the F.I.R. after commission
of offence, Justice Khalil-ur-Rehman Khan in his book Justice Minor's Principles and
Digest, Qanun-e-Shahadat published in 1995 Edition at pages 262 and 263 observed as
under:--
"The conduct of a person in absconding after the commission of the offence is
evidence to show that he was concerned in the offence, but it is usually a very
small item in the evidence on which a conviction can be based. Absconding is
equally consistent with innocence and guilt it is a proper matter to be
considered along with the other facts of the case, whether they bear upon guilt
or upon innocence. It is well-known that different persons are differently
constituted and that some accused persons though innocent, deliberately
abscond rather than face the ordeal of a criminal trial."
"The above observation of the learned author has also been relied upon by the
Supreme Court of Pakistan in a case of Ameenullah v. The State reported in
PLD 1976 SC page 629."
10. The learned counsel for applicant has also relied upon the unreported D.B.
authority of High Court of Sindh, vide order, dated 21-2-2003, in Criminal Bail
Application No.D-282/2002, Aligohar v. The State which is an elaborate authority on
the point of abscondence. Their lordships observed as under:--
"There are two aspects of abscondence.---(1) Putting the prosecution in
disadvantageous position during the course of investigation and trial, (2)
creating a corroborative and circumstantial evidence against himself. In the first
case through abscondence an accused person destroys, conceals or allow any
valuable evidence to disappear, such as, recovery of weapon, blood-stained
clothes, discovery of dead-body, or place of ' incident, reducing the value of
identification Test and so on so forth and in latter case by abscondence creates a
corroborative and circumstantial evidence which can be used against him
during trial, if an order under section 87(3), Cr.P.C. is passed by the Court.
Therefore, different yardstick is to be made to treat both the sets of accused
persons. If an accused person absconds through which valuable piece of
evidence is lost, or concealed or allowed to be destroyed then he is not entitled
for any concession but if an innocent person became fugitive from law or
absconds then if it is found that his case falls within the provision of subsection
(2) of section 497, Cr.P.C. (further enquiry into the guilt) then his case is to be
considered differently. Reliance is placed in a case of Nasij Gul v. Khalid Khan
(1989 SCMR 899 at page 900),' it has been observed as under:--
" .Abscondence deprives an accused person of concession of bail unless he gets
it as of right under subsection (2) of section 497, Criminal Procedure Code or
the offence is bailable otherwise."
11. Thus in such a situation a simple abscondence of accused person should not come
in the way of grant of bail to him as the said person would be entitled to bail under
section 497(2), Cr.P.C. as a matter of E right and not as a matter of concession.
Reliance is also placed on a case of Sher Ali alias Sher v. The State, reported in 1998
SMCR 190 and at page 203, it has been observed as under:--
"In our view, simpliciter an act of abscondence on the part of an accused person
will not disentitle him to claim bail on the ground of statutory delay, which
right accrue to him after he has been arrested and the statutory period
mentioned in clause (1) or clause (b) of afore-mentioned third proviso, as the
case may be expired."
11. There are a number of more authorities on the same point. Only a few of them may
be cited as 2004 PCr.LJ 1785, 1995 PCr.LJ 1316 and 1985 SCMR 382, etc.
12. In view of the given circumstances, and while placing reliance upon the authorities
of law as cited above, the case of applicant would require further enquiry to establish
his guilt, as envisaged by the provisions of section 497(2), Cr.P.C. Consequently the
applicant being entitled to the concession of bail, may be released on his furnishing
solvent surety in the sum of Rs.2,00,000 (Two lacs) and P.R. Bond in the like amount
to the satisfaction of Trial Court.
H.B.T./M-3/K Bail granted.
;
