MASHOOQUE ALI Versus STATE

ORDER

1. The applicant is required in F.I.R. Crime No.254/1982 for having committed an offence under section 302, P.P.C. registered at Police Station, Latifabad, Hyderabad. The applicant has applied for bail before arrest and vide order, dated 28-12-1993, interim bail was granted to the applicant. Today the matter has come up for confirmation or otherwise.

2. The prosecution case is that the complainant Muhammad Umer lodged the report on 3-10-1982 at Police Station, Latifabad in which he has stated that he has a house in Katchi Abadi, Hussainabad near Railway Line and is a fruit-seller. He had one son Ghulam Hussain who was studying in Muslim College. Mashooque Ali resides in the same locality and he used to visit their house. Two, three days prior to the incident Mashooque Ali had complained to him that his son Ghulam Hussain had quarrelled with him, the complainant got the matter settled between them. On the day of incident Ghulam Hussain had brought meals at Giddu Naka and he was accompanied by applicant Mashooque Ali. After some time they went away to the house. At about 3-00 p.m. Khuda Bux and Abdur Rehman informed the complainant that a little while ago they were going to his house when they saw the applicant Mashooque Ali had come out of his house and had gone in haste. They even enquired from him about the complainant but he did not reply. Thereafter, they saw that the door of the house was open and when they went inside there was another door which was locked. In this way, they informed the complainant. On the same day at 10-00 p.m. in the night, the complainant came back to his house and found the door inside the house was locked. He found keys and opened the same to End that his son Ghulam Hussain was lying in a pool of blood. The complainant raised cries on which P.W. Ghulam Rasool and other neighbours came. Thereafter the complainant lodged the report.

3. It may be mentioned that the incident took place in the year 1982 whereas the applicant had applied for bail now. At the very outset the question arose that the applicant was an absconder and therefore, he was not entitled for concession of any bail. In this regard, the learned counsel submitted that it is now a settled law that if proceedings under sections 87 and 88 have not been taken against the accused, such a person cannot be declared as an absconder. This question arose at the time of interim bail and, therefore, it became necessary to call for the R&P of the case. The R&P of the case was called and it appeared that after examining the process-server on 25-10-1986 an order was glassed under section 512, Cr.P.C. in which it was mentioned that warrants under sections 87 and 88, Cr.P.C. may also be issued. Two days thereafter on 27-10-1986 after recording the statement of S.H.O. Muhammad Usman, the case was ordered to be kept on dormant file. As such the proclamation under section 87 and the subsequent action under section 88 never took place with the result (that) the applicant could not be declared as an absconder.

4. It is the case of the applicant that he was kidnapped by a gang of vagabonds and was in their custody. Apart from it he had no knowledge about this case. So far as the merits of the case are concerned, there is no eye-witness in this case, the two witnesses namely; P.W. Khuda Bux and P.W. Abdur Rehman had only seen the accused leaving the house of the complainant during the day time. They had neither seen any weapon in the hands of the accused nor they had seen the dead body of the deceased nor heard any cries. Merely because the accused was seen leaving the scene of the offence does not mean that the applicant is the offender.

5. The learned A.A: G. confirms that apart from this evidence, there is no other material against the applicant.

6. In the aforesaid circumstances the interim bail earlier granted to the applicant is hereby confirmed on the same terms and conditions.

7. N.H.Q./M-1932/K

8. Bail confirmed,