IN THE HIGH COURT OF SINDH CIRCUIT COURT

LARKANA.

                                               

Crl. Bail Appln. No. S- 212 of 2021.

 

Applicant:                 Ghulam Nabi alias ShutiBhayo, through his Advocate Mr. Muhammad Afzal Jagirani.

 

The State:                  Through Mr. Muhammad Noonari, DPG.

 

Date of hearing:        19.07.2021.

Date of order:           26.07.2021.

 

O R D E R

 

Adnan-ul-Karim Memon, J:-The Applicant seeks indulgence of this court against the order dated 15.02.2021, passed by the learned 1^stAdditional Sessions Judge, Kandhkot, whereby post-arrest bail was denied to him in  FIR No.136 dated 19.10.2011, registered at Police Station Ghouspur District Kashmore at Kandhkot, for offenses under Sections 302, 324, 148, 149, PPC.

 

2.      The accusation against the applicant is that on 19.10.2011, at 1530 he along with his accomplices in revenge made firing upon Ghulam Muhammad alias Khan which hit him and caused injuries to Fayaz Ahmed to commit his murder, such report of the incident was made on 19.10.2011 with police station Ghouspur, District Kashmore.

 

3.       Learned Deputy Prosecutor General, opposes the instant application. According to him a person, who is fugitive from law and absconder from justice, therefore, is not entitled to the concession prayed for. In support of his contention he has relied upon the case of Awal Gul V/s Zawar Khan & Others, PLD 1985 SC 402, wherein the Apex Court concluded that a fugitive from law and Courts loses some of their normal rights granted by procedural as also substantive law, unexplained noticeable ascendance disentitles a person from the concession of bail notwithstanding merits of the case. In the cited case the absconded accused was charged with offenses under Sections 302/307/148/149, PPC.

 

4.      Mr. Afzal Jagirani learned counsel for the applicant, however rebutted the contention of the learned Deputy Prosecutor general. He contended that the case of ‘Awal Gul’ supra is distinguishable. In the cited case prima facie it appears that at the time when the incident occurred and FIR was lodged, the accused was very much available, and thereafter he concealed himself to avoid apprehension and prosecution. It was argued that that the absconsion will only be counted when the alleged crime is reported and registered in presence of the accused and it is shown that the accused has deliberately avoided facing the trial and gone in hiding and not in a case, which was registered behind the back of accused. He further argued that a person cannot be declared absconder, even to issuea proclamation under Section 87 Cr.P.C.

 

5.      After hearing the learned counsel for the parties and going through the record, the tentative assessment of the record reveals the following position:

 

i)        That the occurrence, in this case, had been reported to the police quite promptly.

 

ii)       In the FIR the applicant had specifically been nominated as one of the perpetrators of the alleged murder of Ghulam Muhammad alias Khan which he received on his head, back, and chest.

 

iii)      Applicant was attributed firearm injuries to the deceased, as well as witness Fayaz Ali on the back of his abdomen (left side).

 

iv)      Prima-facie, Medical report of injured Fayaz Ali, as well as Post-mortem Examination Report of deceased Ghulam Muhammad lends sufficient support to the allegation leveled against the applicant.

 

v)       The eye-witnesses mentioned in the FIR have so far stood by their statements made before the police fully implicating the applicant in the murder in issue and causing injuries to witness Fayaz Ali.

 

vi)      Offenses under sections 302 and 324 P.P.C. attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C.

 

vii)     As per information provided by the learned counsel for the parties the applicant after the commission of the alleged offense remained absconder; his case was kept on dormant file in the year 2012. However, the applicant has been arrested and sent with supplementary challan on 10.12.2020. The charge has been framed against him by the learned trial Court on 01.02.2021. The applicant's trial has commenced and one of the prosecution witnesses, namely, H.C Munir Ahmed Shaikh has been examined by the learned trial Court.

 

viii)    There is a recovery of blood dust and cloths of deceased; and, crime empties from the place of the incident by police on 20.10.2011.

 

6.      The aforesaid factual position of the case has not been controverted by the learned defense counsel,however, he took the plea that the applicant has been involved in this case by the complainant due to previous murderous enmity and the co-accused Ali Gul, Shahmir, and Parvaiz was let off by the police by placing their names in column No: II of the charge sheet; that co-accused Pervaiz was also found innocent in the police investigation; and, no recovery has been effected from the applicant. It is further contended that the independent PWs in their respective statements recorded under section 161, Cr.P.C. did not incriminate the applicant in the aforesaid crime; that mere absconding in the case will not come in his way so far as the merit of the case is concerned.

 

7.      Prima-facie thenarration as put forward by the applicant shows the contrary position. Besides the above, the learned Judicial Magistrate did not agree with the police report and took the cognizance under section 190 Cr. P.C against co-accused Ali Gul and Shahmir vide order dated 14.11.2011. So far contention of learned counsel for the applicant that there is enmity between the parties is concerned, it suffices to say that no benefit of the plea of the previous enmity could be extended to the applicant at bail stage, as the enmity cuts both ways and it may be the cause for crime as well as implication. Besides above at the bail stage, only a tentative assessment is to be made and deeper appreciation is not required. Besides above, the development, in this case, is that trial has commenced, and in such a situation, when the case is fixed for evidence or the trial has begun, bail application should not be considered on merits and the matter be left to the trial Court, lest it may prejudice the case of either side. In this respect reliance can be placed on the casesof Muhammad Sadik and others vs. The State (1980 SCMR 203), Muhammad Ismail vs. Muhammad Rafique and another (PLD 1989 SC 585), Mian Dad vs. The State and another (1992 SCMR 1418), Said Akbar and another vs. Gul Akbar and another (1996 SCMR 931), and Shahid Farooq vs. The State and others (2011 SCMR 1619).

 

8.      The observation made hereinabove is tentative, which shall not prejudice either party at trial.

 

9.      In view of the above facts & discussion, the instant bail application is dismissed.  However, the learned trial Court is directed to conclude the trial expeditiously within three months and report compliance to this court through the Additional Registrar of this Court.

 

 

                                                        JUDGE