IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No.S-197 of 2018

Applicant               :                Wazir son of Wahid Bux Narejo

Through Mr.Abdul Rehman Bhutto, Advocate

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

Date of hearing   :                  29.10.2018

Date of order      :                  29.10.2018

O R D E R

IRSHAD ALI SHAH, J.- It is alleged that the applicant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, attempted to abduct complainant Zulfiqar Ali and his witnesses, and then fired and killed his son Saleem, for that the present case was registered.

2.                On having been refused post-arrest bail by learned Additional Sessions Judge, Ratodero, the applicant has sought for the same from this Court by way of filing the 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 satisfy their dispute with him over landed property, there is delay of about two days in lodgment of the FIR, 161 Cr.PC statement of the PWs was recorded with further delay of 11 days to FIR, there is general allegation of the incident and co-accused Qalandar Bux alias Qaloo with similar role has already been admitted to bail by this Court. By contending so, he sought for release of the applicant on bail on point of further enquiry and consistency.

4.                Learned A.P.G for the State opposed for grant of bail to the applicant by contending that he has remained in absconsion after commission of the incident.

5.                The complainant on notice appeared, sought for time to engage counsel, engaged a counsel and then preferred to remain absent alongwith his learned counsel without any intimation. 

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

7.                Admittedly, the FIR of the incident has been lodged with delay of two days; such delay could not be lost sight of. There is general allegation of the incident and co-accused Qalandar Bux alias Qaloo has already been admitted to bail by this Court by making an observation that     

“It appears that twelve accused persons including the present applicant have been attributed the effective firearm/shots upon the deceased, therefore, it will be determined by the trial Court whose shot became fatal for the deceased as there are general allegations against all the accused”.

In presence of above said finding of this Court, it is rightly being contended by learned counsel for the applicant that the applicant is entitled to be released on bail on point of consistency and further enquiry.

8.                It is settled by now that the grant of bail once is made out on merit then it could not be withheld as punishment on account of absconsion. In that context, the reference can placed upon the case of Mitho Pitafi & Ors vs. the State (2009 SCMR-299), wherein it has been observed 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.100,000/- 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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