IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No.S-308 of 2018

Applicant               :                Mumtaz Ali @ Tharoo s/o Muhammad Yaqoob by caste Massan, through 

Mr.Ashique Ali Jatoi, Advocate

Complainant       :                  Rustam Ali Massan, through

Mr. Asif Ali Abdul Razzak Soomro, Advocate

State                              :                  Through Mr.Raja Imtiaz Ali Solangi, A.P.G.

Date of hearing   :                  11.10.2018          

Date of order      :                  15.10.2018

O R D E R

IRSHAD ALI SHAH, J.- It is alleged that the present applicant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons, not only committed Qatl-e-Amd of Parvez Ahmed and Muhammad Yousif by causing them fire shot injuries but caused fire shot, lathies and hatchet blows to PWs Yar Muhammad, Hassan Ali Brohi and Mumtaz Khoso, and then went away by making aerial firing to create harassment, for that the present case was registered.

2.                On having been refused post-arrest bail by learned 1^st Additional Sessions Judge, Qamber, the applicant has sought for the same from this Court by way of instant application u/s. 497 Cr.PC.

3.                It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party only to settle their dispute with him over plot; there is counter version of the incident wherein almost all of the accused have already been admitted to bail; co-accused Khadim Hussain, Bakhshal, Rafiq, Mehboob, Bashir and Niaz have already been admitted to bail. By contending so, he sought for release of the applicant on bail on point of consistency and further enquiry. In support of his contention, he relied upon cases of Abdul Hameed Vs. Zahid Hussain alias Papu Chaman Patiwala (2011 SCMR-606), 2). Shoaib Mehmood Butt Vs. Iftikhar-ul-Haq and others (1996 sCMR-1845), 3). Mst.Shafiqan vs. Hashim Ali and another (1972 SCMR-682), 4). Noor Muhammad Vs. The State (2009 SCMR-324), 5). Qamar alias Mitho Vs. the State and others (PLD 2012 SC-222), and 6). Ikram-ul-Haq Vs. Raja Naveed Sabir and others (2012 SCMR-1273).

4.                Learned counsel for the complainant and learned A.P.G were fair enough to state that co-accused Khadim Hussain and Mehboob with utmost similar role have already been admitted to bail, yet they opposed to grant of bail to the applicant by contending that he has remained in absconsion for noticeable period.

5.                In rebuttal to above, it is stated by learned counsel for the applicant that after arrest, the applicant has remained in jail for about three years, which itself appears to be a sufficient punishment for the alleged absconsion on his part.

6.                I have considered the above arguments and perused the record.

7.                Admittedly, there is counter of the incident and co-accused Khadim Hussain and Mehboob with utmost similar role have already been admitted to bail by learned trial Court. In case of co-accused Mehboob while admitting him to pre-arrest bail, it was observed by learned trial Court that;

“in counter blast cases it could be broadly looked into which party was aggressor in the event of free fight and who is main culprit of the alleged offence”.

After making the above stated observation, the applicant ought to have been admitted to bail on point of consistency and further enquiry, yet he was refused bail by learned trial Court under the pretext that he has remained in absconsion for more than three years, ignoring the fact that after absconsion the applicant has remained in custody for about three years.

8.                In case of Mitho Pitafi & Ors vs. the State (2009 SCMR-299), it has been held by the Hon’ble Supreme Court of Pakistan that;

“Bail, grant of---Co-accused was released on bail by the Trial Court, but the concession of bail was declined to the accused petitioner on the ground that he was fugitive from law---High Court as well as the Trial Court had rejected the bail of petitioner on account of his absconsion and not on merits---Validity---Bail could be granted, if accused had good case for bail on merits and mere his absconsion would not come in the way while granting him bail---High Court had not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner”.

9.                In view of the facts and reasons discussed above, the applicant is admitted to bail subject to furnishing surety in the sum of Rs.300,000/- and P.R bond in the like amount to the satisfaction of learned trial Court.  

10.              The instant application is disposed of accordingly.

                                      JUDGE

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