BACHAL Versus State

ORDER

1. MRS. YASMIN ABBASEY, J.--- 1 to 3. Case of prosecution is that on 1-6-1994 when complainant along with his family members was present in the house at about 2-30 a.m. they found this applicant in company of other persons named in the F.I.R. duly armed with kalashnikovs. When Hakal was given to them by complainant, accused Saindad and Ghulam Hussain made direct fires on complainant's nephew Khuda Bux. Thereafter rest of the accused persons also fired at Khuda Bux with their fire-arm weapons. Complainant's nephew Muhammad Arab was with DBBL gun, who also fired in defence whereafter accused persons escaped. After leaving the culprits, they found that Khuda Bux received injury on left arm muscle and he succumbed on the spot.

2. It is contended by learned counsel that applicant has been falsely implicated in the matter due to enmity between the parties. Complainant and this applicant belong to different caste. Applicant was arrested after about thirteen years of the date of incident on 46-7-2007, nothing was recovered from his possession. Referring to the bail orders granted to co-accused persons, it is contended that main culprits have been enlarged on bail whereas he is still behind the bars.

3. Learned Assistant Advocate-General while opposing to the grant of bail, has referred to the 164, Cr.P.C. statements of P.Ws. Muhammad Arab and Aacher, who were the eye-witnesses of the incident, but admittedly, their statements were recorded after seven days of the incident. Even if the delay is ignored, then as per prosecution all the four persons duly armed with kalashnikovs fired at Khuda Bux but as per medical report, he received only two injuries on his person and five empties are said to have been recovered from the place of incident. Record is silent to the fact that whether any crime weapon was ever recovered from any of the accused of this case; hence in absence of any recovery at this stage, it is hard to say that out of five empties, which directly hit to Khuda Bux that requires evidence, which has not been brought on the record. Being case of further enquiry and considering his age of 60 years, I found that the applicant has been able to make out a case for grant of bail.

4. So far his thirteen years absconsion is concerned PLD 2007 Kar. 127 has been referred, wherein it is observed that:---

5. "... Abscondance is of two categories. One in which absconder destroys the prosecution case/evidence and the other one is in which there is no such effect but the accused on account of certain circumstances or to save himself from harassment, resorts to abscondance. In first category, the abscondance shall always adversely affect the grant of bail which in the second category the case is to be considered in light of facts and circumstances prevailing therein."

6. For the foregoing reasons, this application is allowed subject to furnishing surety in the sum of Rs.5,00,000 (Rs. five lac) and P.R. bond in the like amount to the satisfaction of learned trial Court.

7. H.B.T./B-5/K Bail granted.