ALI GUL Versus State

ORDER

1. SHAHID ANWAR BAJWA, J.--- F.I.R. No. 24 of 2007 was recorded at Police Station Sanjan Bhatti on 3-10-2007 for an incident alleged to have occurred two hours earlier. Complainant stated that they had dispute with Jiwan Khoso and Ali Dost Khoso over water path from land. On the material day complainant, his brother Ghulam Hyder and his cousin were going towards their lands and a resident of village also joined them. On the way they were accosted by 6 persons who stated that they were well-wishers of Jiwan Khoso and, therefore, they would not spare them. One of the party gave hakkal. It is then alleged that co-accused Mithal Khoso fired upon Ghulam Hyder which hit him on upper part of right hand and back of neck; the applicant fired at Ghulam Hyder which hit his wrist of right hand and other two co-accused also fired at Ghulam Hyder. Firing attracted other villagers upon which accused fled away. While fleeing away the culprits resorted to indiscriminate firing. Ghulam Hyder expired at the spot.

2. Learned counsel for the applicant submitted that allegation against present applicant is of firing on a non-vital part of body. He submitted that as far as common intention is concerned that always subject of final enquiry and can only be gone into after evidence is recorded. Learned counsel relied upon Muhammad Shakil v. Sakhi Zaman and 3 others (1999 SCMR 32) and Sharbat and another v. The State 2003 MLD 1191.

3. Learned State Counsel submitted that from scene of incident two empties have been recovered. He submitted that present applicant has been fugitive for 3 years because alleged incident took place in 2007 and he was arrested on 11-10-2010. He submitted that a fugitive loses some of his rights both under the substantive as well as under the procedural law. He opposed this bail application. Learned State Counsel relied upon Sher Ali alias Sheri v. The State (1998 SCMR 190), Awal Gul Zawar Khan and others (PLD 1985 SC 402) and Bashir Ahmed and another v. The State and another (2005 PCr.LJ 8).

4. I have considered submissions made by the learned counsel and have also gone through the record.

5. In Muhammad Shakil's case (supra) the petition before Supreme Court was for cancellation of bail granted to accused persons. Bail had been refused by the trial Court. In High Court difference of opinions arose between two Judges and matter was referred to third Judge who held that since two Judges arrived at different conclusions it automatically indicated existence of reasonable ground to connect petitioner with the commission of the crime to be doubtful. Bail was allowed. The case clearly is distinguishable. In Sharbat's case (supra) it was alleged in the F.I.R. that in the town of Ghari Khero the complainant, deceased and two prosecution witnesses were persons near the service shop when one accused armed with rifle along with three others including Sharbat appeared in two motorcycles and in the background previous enmity challenge was given. Accused Ghulam Muhammad fired from rifle while others pointed their weapons at the complainant party but did not make any fire. Sharbat had remained absconder for about 3 years and a Single Judge of this Court in respect of abscondence observed as under:-

6. "In the backdrop of the above situation, when on merits the applicants have a good case, the abscondence alone should not come in the way of grant of bail. No doubt a fugitive from law loses some of his rights, but he does not lose the right of bail forever and they are also entitled to fair and just trial within a reasonable time. The observations made by the Hon'ble Supreme Court of Pakistan in a case Muhammad Saeed Mehdi v. State reported as 2002 SCMR 282 are relevant in this context. The authorities cited by learned counsel for applicants, Mubashir Ahmed v. State (1989 PCr.LJ 244), State v. Mukhtar Ahmed Awan (1991 SCMR 322) and Jam Sadiq Ali v. State (1989 PCr.LJ 1910) also support the bail plea."

7. On the other hand, learned State Counsel relied upon Sher Ali alias Sheri's case (supra). Sher Ali has been an absconder from 1989 and was arrested on 1994. The Supreme Court relied upon the Awal Gul (supra) and declined to interfere with order of High Court by which bail of accused was refused. In Awal Gul's case (supra) it charge was for an offence under section 302, P.P.C. alleged to have taken place in 1983. A three Member Bench of the Supreme Court held as under:--

8. "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another (1), Rao Qadeer Khan v. The State (2), Hayat Bakhsh and others v. The State (3) and Kh. Azhar Hussain and another v. The State (4). It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abseondence disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or, is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."

9. The present applicant has been a fugitive from the law for more than 3 years and in the presence of pronouncement by honourable Supreme Court in Awal Gul's case (supra) which has been followed by the Supreme Court in Sher Ali alias Sheri's case (supra) and considering that a clear role of firing and injuries the deceased has been alleged in the F.I.R. in my opinion the applicant is not entailed to concession of bail. The bail application is consequently dismissed.

10. M.W.A./A-8/K Bail refused.