ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT
SUKKUR
Crl. Bail Appln. No. S – 240 of
2022.
Date |
Order with signature of Judge |
For
Hearing of main case.
-
05-09-2022.
M/s.Rukhsar
Ahmed Junejo and Qurban Ali Malano Advocates for applicant.
Mr.Muhammad
Ali Nappar Advocate for complainant.
Mr.Khaleel
Ahmed Maitlo DPG.
-
O R
D E R.
ABDUL
MOBEEN LAKHO, J:- Through the instant bail application, applicant Hazoor Bux @
Hazooro seeks Post-arrest bail in respect of Crime No.04/2017 of Police
Station, SITE, Sukkur, registered for offence under Section 302, 201,148, 149, 344, 506/2, PPC.
2. Succinctly, the facts of the case are
that on 13.02.2017 complainant Khair Muhammad Tunio lodged FIR alleging therein
that his son Rafiq Ahmed left home in his Car but did not return; hence his
cousin Javed Ahmed lodged missing report. Subsequently, on 12.2.2017 Muhammad
Sulleman and Muhammad Usman informed the complainant that on 02.02.2017 at
09:30 p.m. they at Labour Colony Chowk witnessed that co-accused Rahib,
Hidayatullah and present applicant Hazoor Bux armed with TT Pistols were
strangulating his son Rafiq Ahmed and forcibly made him sit in their Car. It is further alleged that on force of
weapons, the witnesses also were forcibly
made to sit in Rafique Ahmed’s Car. It is further alleged that deceased Rafiq
Ahmed was chocked to death by keeping handkerchief on his face. The car was
brought at Abijano Bridge where two unknown persons were already available and
waiting, thereafter all the accused in order to destroy the evidence of murder,
left the dead body in a Car and pushed the Car in a Nara Canal and thereafter
having blind folded both the P.Ws, the accused confined them at some unknown
place but they somehow managed to flee from their clutches and informed the
complainant about the above incident.
3. Learned counsel for the applicant, inter
alia, contended that applicant has been falsely implicated in the instant case
by the complainant contrary to the actual facts and circumstance and with connivance of the local police. He further
contended that there is a delay of 11 days in lodgment of FIR for which no
explanation has been furnished. That the learned trial Court has dismissed the
bail application of the applicant on the ground that the applicant is fugitive
from law and absconder from justice, therefore is not entitled for concession
of bail; that the applicant has good case for bail on merits and mere
absconsion would not deprive him of bail and otherwise the case of the
applicant is of further enquiry and no useful purpose would be served while
keeping him behind the bars till the conclusion of the trial. Lastly the
counsel contended that on similar circumstances, co-accused Rahib and
Hidayatullah were granted bail by the learned trial Court during the pendency
of trial, as such the rule of consistency also applies in this case and the
applicant is entitled for concession of bail during the pendency of trial. In
support of such contention, they placed reliance on the cases of Saeed Yousaf v
The State and another (2021 S C M R 1295) and Gul Nawab v The State through
A.G. Khyber Pakhtunkhwa and another (2022 S C M R 547).
4. On the other hand, learned counsel for
the complainant and learned Additional Advocate General supported the impugned
order declining bail to the applicant. He contended that the applicant has been
specifically nominated in the FIR and he became fugitive from law and after a
lapse of 05 years and 02 months, he was arrested by the police, therefore he does
not deserve any leniency by this Court. In support of such contention, they
placed reliance on the case of Awal Gul v Zawar Khan and others (P L D 1985 S C
402).
5. I
have heard the arguments of learned counsel for the applicant, learned counsel
for the complainant and learned DPG for the State. I have also gone through the
material available on record.
6. Admittedly,
the name of applicant transpires in the FIR with specific role of chocking/throttling
the deceased Rafiq Ahmed. As far as the delay of 11 days in lodging the FIR, is
concerned, the same has been fully explained as the NC (Non- cognizable) was recorded at concerned Police
Station when the deceased did not return home though the non-cog report should
contain at-least the story of the incident but in this particular case it was
only a report of missing of the son of the complainant not knowing the reason
of his disappearance whether it was kidnapping or death. As far as the rule of
consistency on similar role, co-accused Rahib and Hidayatullah is concerned,
who were granted bail during the pendency of trial, does not apply in this case
as after grant of bail, they were
convicted and their appeal against conviction, on the specific role which is pending adjudication. Besides this, after
the incident, applicant remained fugitive from law and was arrested by the
police after a lapse of 05 years and 02 months. This is a case of unexplained
noticeable abscondence and it is a well-established proposition that
unexplained noticeable abscondence disentitles a person to the concession of
bail notwithstanding the merits of the case. No case for bail is made out. Consequently,
bail application is dismissed. The case cited by the applicant are
distinguishable.
7. Since,
the charge in the case has already been framed, therefore it will be
appropriate to direct the learned trial Court to conclude the trial preferably
within a period of 02 months.
JUDGE
Akber.