IN THE HIGH COURT OF SINDH CIRCUIT COURT,
LARKANA.
Crl. Bail Appln. No. S- 272 of 2021.
Applicant: Bakhshal Abro, through his Advocate Mr. Mazhar Ali Bhutto.
The State: Through Mr. Muhammad Noonari, DPG.
Complainant: Azam, through Mr. Ahsan Ahmad Quraishi, Advocate.
Date of hearing: 26.07.2021.
Date of order: 26.07.2021.
O R D E R
Adnan-ul-Karim Memon, J: - Impugned herein is the order dated 08.5.2021, whereby post-arrest bail was refused to the applicant by the learned the IV-Additional Sessions Judge,Larkana in F.I.R No.32 dated 12.07.2009, offense under sections 302, 147, 148, 149, 34 P.P.C. registered at P.S. Gerelo, District Larkana . He is now asking for post-arrest bail in the aforesaid crime.
2. It is contended by learned counsel for the applicant that the applicant is innocent and has not committed the alleged offense but due to old enmity between the parties he has been roped in this case. He added that as per FIR the applicant-accused took no active part in the commission of alleged offense, hence determination of vicarious liability and sharing common intention by the applicant-accused is yet to be determined at the time of trial. He further argued that all the witnesses are interested, set up, and inimical towards the applicant-accused and no independent person has been cited as a witness. He further submits that there is the only allegation against the applicant-accused Bakhshal that at the time of the incident he made ineffective firing to commit murder of complainant party. According to him, he did not act in the commission of the offense.That the applicant has remained fugitive from law for about 12 years.
3. Learned DPG assisted by learned counsel for the complainant has vehemently opposed the bail of applicant-accused on the ground that applicant-accused is specifically involved in this crime for murdering Fida Hussain the brother of complainant, while rest of co-accused have also participated in the commission of alleged offense.
4. The accusation against the applicant is that on 12.7.2009 applicant Bakhshal made ineffective firing in collaboration with other accused to kill Fida Hussain;and, the principal accused Manthar and Ghulam Hussain fired upon Fida Hussain, who succumbed to his injuries and died, such report of the incident was made to Police Station Gereloto the above effect, his earlier bail application was rejected by the learned IV-Additional Sessions Judge, Larkana vide order dated 08.5.2021 on the ground that he facilitated the principal accused in committing the murder of deceased Fida Hussain, additionally the applicant has remained fugitive from law for about 12 years.
5. Learned counsel for the applicant rebutted the contention of learned Deputy Prosecutor General. He contended that at the time when the alleged incident occurred and FIR was lodged, accused was not available. It was argued 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 to face 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 for the purpose of issuing proclamation under Section 87 Cr.P.C. He further added that when the main role assigned to the co-accused and not the present accused as such the alleged absconsion would not come in the way of applicant for grant of post arrest bail, as primarily he was not aware of the registration of such case however; he was arrested in the aforesaid case to face the trial which he is facing now. Per learned counsel this court has to see the role assigned to the applicant in the alleged crime, which shows mere his presence; even no recovery has been affected from him after his arrest. Prima facie, the empties could not be sent to the FSL for corroborating the case of prosecution as such all the attending circumstances, requires further inquiry into the guilt of the applicant. He lastly submitted that the applicant is aged about 75 years and old and infirm thus concession of post arrest bail could be extended to him. He prayed for allowing the instant bail application.
6. Tentative assessment of the present case is as follows:-
i) In the FIR no direct role of causing injury to deceased has been assigned to the applicant.
ii) No recovery of alleged weapon has been affected from him.
iii) Prima facie no FSL report of alleged empties of cartridges is available on the record.
iv) The applicant after arrest on 27.2.2020 is attending the court.
v) The applicant is aged about 75 years old.
7. After hearing the learned counsel for the applicant and learned Deputy Prosecutor General assisted by learned counsel for the complainant at length and perusal of available record with their assistance, it has been observed that prima-facie, there is no allegation against all the applicant-accused of causing injury on the person of any member of complainant party. Applicant is alleged to have facilitated his accomplices to cause death of Fida Hussain and alleged to have made an aerial firing. In the circumstances of the case, it is for the learned trial Court to determine, after recording evidence pro and contra, whether the applicant is vicariously liable for the acts of his co-accused. F.I.R and other details of the case squarely bring the applicant case within the purview of subsection (2) of section 497 of the Code of Criminal Procedure 1898.
8. So far as absconsion of applicant is concerned, suffice it to say that if, the accused is entitled for grant of post arrest bail on merits, the absconsion will not come in his way, while deciding the bail application. Prima facie in the present case, the role of applicant as discussed supra is sufficient to bring his case within the ambit of section 497(2)Cr.P.C and the trial court is required to expedite the trial and take prompt decision within a reasonable time after recording evidence and after hearing both the parties. On the aforesaid proposition I seek guidance from the unreported order dated 6.5.2020 passed by the Hon’ble Supreme Court in the case of Mukaram V. The State and another (Cr.Petition No.368/2020).Wherein the Hon’ble Supreme court at Pargraph 6 has held as under:-
“As far as the element of aboscnsion is concerned it is established principle of law that absconsion per see cannot be made basis for refusal of bail in absence of any overt act which has contributed towards the commission of the offence”.
9. On the subject issue, I seek further guidance from the decision of the Hon’ble Supreme Court in the case of Mitho Pitafi v. The State (2009 SCMR 299). The Hon’ble Supreme Court has held as under:
“It is well –settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion could not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner”.
10. Before parting with this order, it is important to note that the Honorable Supreme Court in its recent pronouncement has held that the courts below have not been exercising their discretion while declining bail to the accused, under subsection (1) of Section 497 Cr.P.C, under the principle of law enunciated by the Honorable Supreme Court regarding grant of bail in offenses not falling within the prohibitory clause of that subsection. It is further held that the learned trial court simply relied, for declining bail, on the incriminating material available on the record to connect the accused with the commission of the offenses alleged. Though it is well-settled law that if the offenses alleged against the accused do not fall within the prohibitory clause of subsection (1) of Section 497 Cr. P.C and thus attract the principle that grant of bail in such offenses is a rule and refusal an exception; and, as authoritatively enunciated by the Honorable Supreme Court in its several cases.
11. Primarily, the main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society if there is an apprehension of repetition of offense or commission of any other untoward act by the accused. Therefore, to make the case of an accused person fall under the exception to the rule of the grant of bail in offenses not covered by the prohibitory clause of Section 497 (1) Cr. P.C, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail.
12. The basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of:
(a) his absconding to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offense keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offense alleged.
13. In view of the above, it is also essential to note that a court which deals with an application for grant of bail in an offense not falling within the prohibitory clause of Section 497(1) Cr. P.C must apply its judicious mind to the facts and circumstances of the case and the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offense only when it finds any of the above-noted circumstances or some other striking circumstance that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.
14. The Honorable Supreme Court has already cautioned the learned courts in Muhammad Tanveer v. State(PLD 2017 SC 733), in the following terms:
"Once this Court has held in categorical terms that grant of bail in offenses not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception, then the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts."
15. In the present case, the learned trial Court has failed to adhere to the principle of law enunciated by the Honorable Supreme Court, as discussed supra.
16. In the light of the principles set forth by the Honorable Supreme Court in post arrest bail matters, as discussed supra, the impugned order passed by the learned trial Court is thus not sustainable under the law and liable to be reversed on the aforesaid analogy. On the aforesaid proposition, I am fortified with the decisions of Honorable Supreme Court rendered in the cases of Tariq Bashir v. State PLD (1995 SC 34); Imtiaz Ahmad v. State (PLD 1997 SC 545); Subhan Khan v. State (2002 SCMR 1797); Zafar Iqbal v. Muhammad Anwar (2009 SCMR 1488).
17. For the foregoing, the instant bail Application is accepted. Applicant Bakhshal Abro is enlarged on bail in the instant FIR,subject to his furnishing solvent surety in the sum of Rs.100, 000/- (Rupees One hundred thousand only) with P.R Bond in the like amount to the satisfaction of the trial Court.
18. Needless to mention here that the observation hereinabove is tentative and wouldn't affect the merits of the case at the time of trial.
JUDGE