DADAI alias ASHRAF vs The STATE
This post-arrest bail application arose from a case registered under Sections 302, 114, 148, and 149 of the Pakistan Penal Code 1860, and Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, involving an incident of robbery and murder. The applicant, who was allegedly present at the crime scene armed with a hatchet but did not use it, sought bail on the grounds of a 24-hour delay in lodging the First Information Report (FIR) and the non-appearance of prosecution witnesses. The trial court had previously kept the case against a co-accused in abeyance and granted him bail because the witnesses were untraceable despite public notices. The High Court of Sindh observed that keeping the applicant in jail indefinitely would serve no useful purpose when the prosecution witnesses were not coming forward. The Court held that mere absconsion of an accused does not bar the grant of bail if a case for bail is otherwise made out. Consequently, the Court allowed the bail application, subject to the prosecution's right to seek cancellation if the witnesses reappear and the case is reopened.
- Does the mere absconsion of an accused disentitle them from the grant of post-arrest bail if they are otherwise eligible?
- Can post-arrest bail be granted to an accused where the trial has been kept in abeyance due to the continuous non-appearance and untraceability of prosecution witnesses?
- Whether the principle of consistency applies to grant bail to an accused when a co-accused has already been released on bail under similar circumstances of trial delay?
- Section 302, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 512, Code of Criminal Procedure 1898
ORDER
1. ' AFTAB AHMED GORAR, J.---Through this bail application, the applicant Dadai alias Ashraf Kosh/Jatoi, seeks post arrest bail in Crime No,9 of 2005, of Police Station Kot Shahoo, registered for offences punishable under sections 302, 114, 148, 149, P.P.C. And 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' The case of prosecution, as per F.I.R lodged by complainant. Jhando on 28-8-2005, is that on 27- 8-2005, when complainant, his nephews, namely, Lakhan, Wadhal, and Dost Ali were grazing their buffaloes, as such at about 11.30 a.m. There arrived accused Saleh, Ghulam Rasool, Pehliwan, Wazir, armed with Kalashnikovs, Samo, Qaim having guns in their hands, and Dadai alias Ashraf (applicant) having hatchet in his hand, accompanying three unknown persons; they started taking away the cattle of the complainant party and on resistance offered by them, on the instigation of accused Ghulam Rasool, accused Saleh fired from his Kalashnikov at the nephew of complainant Lakhan, who on receipt of firearm shots fell down on the ground. The accused persons then while robbing away buffaloes of complainant went away. The complainant found his nephew having multiple injuries and lying dead.
3. ' The learned counsel for the applicant mainly contended that F.I.R is delayed for about 24 hours; that allegation against applicant is that he was only present on spot having hatchet in his hand, but he did not use the sane in the commission of offence. Learned counsel further contended that initially the case was challaned under section 512, Cr.P.C. Showing all the accused as absconders, however after his arrest the applicant has been sent with supplementary challan. He further contended that case of co-accused Wazir has been kept in abeyance, due to non-appearance of the complainant and his witnesses, and no fruitful purpose would be served if the applicant is left to remain in jail, as the prosecution witnesses are not traceable. He lastly contended that, mere absconsion would not come in the way of grant of bail, if otherwise the case is made out for bail.
4. Learned counsel relied upon case of Manzoor Hussain and another v. The State (2011 SCM R 902), Subesh Sadiq alias Saabo alias Kalu v. The State (2011 SCM R 1543), and case of Mitho Pitafi v. The State (2009 SCM R 299).
5. ' On the other hand, learned State counsel opposed grant of bail to the applicant.
6. I have considered submissions made by learned counsel for the parties and gone through the material available on record. It appears that, initially the case was challaned under section 512 Cr.P.C. And all the accused were shown absconders. However, after arrest of co-accused Wazir case proceeded against him; the trial Court framed the charge and issued process to prosecution witnesses time and again but the prosecution witnesses did not come forward to record their evidence. The trial Court also made publication of notice in daily newspapers for their appearance, even then they did not turn up. Ultimately, the trial Court vide its order dated 2-5-2011, has ordered for keeping the case in abeyance and released co-accused Wazir on bail, leaving prosecution at liberty to move for reopening of case as and when their witnesses come forward. Per learned counsel for the applicant, still the position is the same. In the circumstances, no purpose would be served if the present applicant is left to remain in jail for indefinite period. However, it is well settled principle of law that, mere absconsion of accused would not come in his way, if otherwise he had made out a case for bail. Accordingly, the instant bail application stands allowed and the applicant is directed to be released on bail on his furnishing solvent surety in the sum of Rs,300,000 (Three hundred thousands) and P.R bond in the like amount to the satisfaction of learned trial Court. However, the prosecution is at liberty to move for cancellation of bail of applicant, if their witnesses come forward, got the case re-opened and record their evidence.