WALI MUHAHMAD Versus THE STATE

ORDER

1. Granted.

2. It is alleged that on 26-3-1981 at about 9 a.m. applicant Wall Mohammad armed with a gun alongwith co-accused Sharafuddin who was also armed with a gun and Abdul Hakim who was armed with a hatchet went to the house of the complainant and called out deceased Gul Jan. Sharafuddin fired gunshot at Gul Jan as he was prosecution witness against him. Applicant Wali Mohammad is then said to have fired in the air. Gul Jan died on the spot.

Applicant Wali Mohammad was shown as an absconder. He was arrested by Police on 15-9-1985.

Co-accused Sharafuddin who has been assigned the main role of firing gunshot at the deceased has already been released on bail. The role attributed to the applicant is only of firing in the air. It is reported by the S.H.O. concerned that the applicant is not a previous convict nor a dangerous, desperate or hardened criminal. The bail application was pressed before the learned trial Court, mainly on the ground of delay in the conclusion of trial and was rejected on the ground that he was an absconder and was therefore not entitled to bail on the principle that a fugitive from law loses some of the important rights under the substantive and procedural laws. Reliance was placed in dictum of Supreme Court in the case of Mohammad Sadiq v. Sadiq P L D 1985 SC 182 and Awal Gul v. Zawar Khan. PLD 1985 SC 402.

The case of the applicant is however distinguishable from the above two rulings in that he 'has remained as an under trial prisoner for a period of more than 2 years and is entitled to bail under the 3rd proviso of section 497, Cr.P.C. notwithstanding his abscondence.

Apart from that a certificate has been produced by the counsel for the applicant purported to have been issued by Tahsildar and First Class Magistrate Usta Mohammad whereby the petitioner was certified to be residing in village Mir Mohammad Zaman Khan District Usta Mohammad, Baluchistan, which affords a good explanation for the alleged abscondence. Mr. Syed Sarfraz Ahmed A.A.-G. for the State also concedes to the request of the bail of the applicant in these circumstances.

I, therefore, direct that applicant Wali Mohammad be released on bail on furnishing surety in the sum of Rs.50,000 and P.R. bond in the like amount to the satisfaction of the trial Court.

M.Y.H./W-27/K Bail granted.