MUHAMMAD NAEEM Versus STATE

ORDER

The brief facts leading to the present application for bail are that applicant Muhammad Naeem is facing trial in Sessions Case No.593 of 1990 before the learned IInd Additional Sessions Judge, Karachi (South) under sections 302, 307, 436, 34, P.P.C., which has arisen out of F.I.R. No.146 of 1989 of Police Station Aram Bagh, Karachi.

2. The brief facts of the prosecution case as disclosed in the F.I.R. lodged by complainant Lajbar Khan on 9‑5‑1989 are reproduced hereinbelow:‑‑

"I reside at the above address and yesterday on 8‑5‑1989 at about 10 p.m. my son Muhammad Ayyaz Khan and my nephew Imdad Ullah went into their room situated in Mitha Raam Hostel, where they were students. At about 11‑30 p.m. I heard the firing from the Mitha Raam Hostel side, due to this I came out from the house at the road, Muhammad Akram Khan who was on the mobile of Police Station Aram Bagh informed me in front of the Police Station that my son Muhammad Ayyaz Khan and nephew Imdad Ullah have received the bullet injuries and have been sent to Civil Hospital, I reached at the emergency of Civil Hospital, where my son Muhammad Ayyaz Khan was lying unconscious at the stretcher and blood was oozing out of his injury and Imdad Ullah was also injured but was in senses, my son had 5/6 bullet injuries and blood was oozing out from them. Imdad Ullah had a bullet injury on his right chest, who informed that they were studying in the room of the Hostel while Ayyaz Khan was on the bed when suddenly two persons entered to the room after breaking the door, third person from the outside shouted that Saleem and Naeem he is Muhammad Ayyaz Khan kill him, therefore, Naeem and Saleem started firing with revolver and KK. First they fired upon Muhammad Ayaz Khan due to which he fell down thereafter they fired upon him he received bullet injury on the right wrist and fell down, the culprits person presuming them dead and sprinkled the oil on the door and set it ablaze and ran away. In the meanwhile the police mobile reached and took them out from the room and brought them to Civil Hospital. As my son was lying unconscious and there was no doctor therefore, I took him to Jinnah Hospital in Ambulance where he died. Prior to this incident there was enmity between my son and Naeem and Saleem who are brothers and at Police Station Aram Bagh such cases were also registered. Due to this enmity Saleem and Naeem have Bagh informed me in front of the Police Station that my son Muhammad Ayyaz Khan and nephew Imdad Ullah have received the bullet injuries and have been sent to Civil Hospital, I reached at the emergency of Civil Hospital, where my son Muhammad Ayyaz Khan was lying unconscious at the stretcher and blood was oozing out of his injury and Imdad Ullah was also injured but was in senses, my son had 5/6 bullet injuries and blood was oozing out from them. Imdad Ullah had a bullet injury on his right chest, who informed that they were studying in the room of the Hostel while Ayyaz Khan was on the bed when suddenly two persons entered to the room after breaking the door, third person from the outside shouted that Saleem and Naeem he is Muhammad Ayyaz Khan kill him, therefore, Naeem and Saleem started firing with revolver and KK. First they fired upon Muhammad Ayaz Khan due to which he fell down thereafter they fired upon him he received bullet injury on the right wrist and fell down, the culprits person presuming them dead and sprinkled the oil on the door and set .it ablaze and ran away. In the meanwhile the police mobile reached and took them out from the room and brought them to Civil Hospital. As my son was lying unconscious and there was no doctor therefore, I took him to Jinnah Hospital in Ambulance where he died. Prior to this incident there was enmity between my son and Naeem and Saleem who are brothers and at Police Station Aram Bagh such cases were also registered. Due to this enmity Saleem and Naeem have killed my son and injured Imdadullah. I complain against Saleem and Naeem and their third companion for committing murder of my son and causing injuries to Imdadullah. Action may be taken."

3. I have heard Mr. M. Iqbal and Syed Meltmood Alam Rizvi, Advocates for the applicant and Mr. Sharafat Ali Khan, Advocate on behalf of A.‑G. for the State.

4. The perusal of record shows that the accused were not arrested during the course of investigation. The challan was submitted by the police on 1‑11‑1990 wherein the applicant and his companions were shown as absconders.

5. The trial Court took steps provided by law to procure the attendance of applicant but it could not‑succeed. Consequently the applicant was declared as a proclaimed offender under. section 512, Cr.P.C. and proclamation under sections 87, 88, Cr.P.C. was issued against him on 9‑10‑1991, Co -accused Muhammad Amin was arrested. He was tried by the Court and he was acquitted on 14‑3‑1997. On 6‑12‑1998 applicant was arrested by Police and he was produced before the trial Court on 7‑12‑1998 and he was remanded to judicial custody.

6. Admittedly, the applicant was fugitive from law for more than nine years. The unexplained abscondence for such a long period disentitles an accused to the concession of bail because by such conduct he thwarts the investigation through which collection of material evidence like recovery is made impossible. The fugitive from law loses the normal rights provided under law. In this context I am fortified by the decision of Honourable Supreme Court in the case of Sher Ali alias Sheri v. The State (1998 SCMR 190) and Awal Gul v. Zawar Khan and others (PLD 1985 SC 402).

7. In the case of Rao Qadeer Khan v. The State (PLD 1981 SC 93) it was observed that the abscondence disentitles an accused to the concession of bail even if his case does not fall within the ambit of prohibitory clause of section 497, Cr.P.C.

8. The name of accused transpires in F.I.R. as one of the assailants. He has been ascribed role of killing the deceased and causing injuries to P.W. Imdadullah who were both students and were staying in Mitharam Hostel, Karachi. The abscondence can be termed as an additional piece of evidence against an accused. Merely because the co‑accused was acquitted by the trial Court it is no ground for the grant of bail in each and every case. The contention of the learned counsel that applicant was unaware of his involvement. In this case is devoid of force.

9. In an identical case Ibrahim v. Hayat Gul and others (1985 SCMR 382) Honourable Supreme Court cancelled the bail of accused, who was granted bail by the Lahore High Court on the ground that co -accused were acquitted by the trial Court. The relevant observations are reproduced hereinbelow:‑‑

"It may straightaway be remarked that long abscondence would not become irrelevant merely because the co‑accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so‑called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence.

In the present case learned counsel has offered the explanation with regard to the respondent remaining unaware of the case because of his alleged travel abroad before the occurrence. In other words a plea of alibi has been advanced.

After hearing the learned counsel on this point in so far as these bail proceedings are concerned there is not enough material to accept this plea as advanced. Learned counsel also tried to show that the respondent cannot now be found guilty because the eye‑witnesses who are to appear against him, as he understood, have already been disbelieved during the trial of his co‑accused. In the circumstances of this case it is not necessary to examine at length this aspect as it might prejudice the decision of the trial Court as a result of a trial which the respondent is going to face. Suffice it however to observe that in so far as the believing or not believing a certain piece of evidence is concerned the trial Court would be entitled to form its own opinion. Moreover a possibility of additional evidence examined at the instance of the parties or the Court at the second trial and/or the admission by the accused under section 342 during this trial which might furnish corroboratory/ confirmatory additional material can never be excluded on account of any bar by any law or principle. And to say the least the very factum of abscondence would ordinarily be led as additional evidence against the respondent which item would be in addition to the evidence led during the trial of his co‑accused and it cannot at all even be urged that evidence of abscondence is not relevant in cases like the present one. "

10. The authority in case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) relied by the leaned counsel for the applicant is of no avail to him as facts and circumstances of the present case are distinguishable from the reported case.

11. For the reasons set forth hereinabove I do not agree with the contentions of the learned counsel for the applicant and I see no merit in this application, which is accordingly dismissed.

12. The observations made hereinabove are tentative in nature; the learned trial Judge shall not be influenced by them in any way while deciding the case on its own merits after independently evaluating the evidence recorded at the stage of trial.

N.H.Q./M‑453/K

Bail refused.