NABI BUKHSH KHAN Versus State
KHADIM HUSSAIN TUNIO, J.--- Through the captioned bail appeal, Applicant Nabi Buksh seeks his release on bail in case No.135, dated 27-11-2000 registered under sections 302 and 34, P.P.C. at Police Station Umerkot.
2. In nutshell, the accusation is that the applicant along with his accomplice in furtherance of their common intention, committed Qatl-i-Amd of deceased Khan Muhammad by causing hatchet injuries, for which the FIR was lodged.
3. Learned counsel for applicant argued that there is no reasonable ground to believe that applicant is guilty of offence with which he stands charged; that the FIR is false, fabricated and concocted one against applicant and not believable; that mere abscondance is no ground for refusal of bail as previously, no criminal record is present against the applicant nor was he away about the alleged incident therefore, the applicant is entitled to bail; that this false case is registered on account of enmity and story of the FIR has been twisted by the complainant; that there is an unexplained delay of 4 hours, which time could possibly have been consumed by the complainant for consultation and deliberation: that the complainant himself has admitted in the FIR that there is enmity between both the parties; that the motive behind this occurrence is the matrimonial crisis between sister of Shahlum and deceased Khan Muhammad; that the applicant is an educated person, and on 27-11-2000 the applicant was on duty at SAZDA office at Umerkot from 9:00 am to 4:00 p.m, but complainant malafidely involved the applicant in the case; that the place of incident is 25 Kilometers away from SAZDA office at Umerkot where the applicant was on duty; that all the PWs are interested witnesses, relatives and they are set up by complainant; that ocular evidence is contradictory with the medical evidence; that no specific role has been assigned to the; that guilt of applicant is yet to be determined at the trial; that there is no likelihood of abscondance or tampering with prosecution evidence; that the law for the purpose of bail cannot be stretched in favour of prosecution and if any benefit of doubt arises, it must go to the applicant. He has cited the case law reported in PLD 2008 SC 298, 2012 SCMR 222, 2012 SCMR 1137, 2014 SCMR 27 and 2016 SCMR 1325.
4. On the other hand, learned APG for the State while controverting the arguments of the learned counsel for applicant contended that no deeper appreciation of evidence can be made at bail stage and only tentative assessment is permissible; that applicant is directly charged for commission of crime in which a young man, 37 years old, has been brutally done to death and all the accused, including applicant are vicariously liable for the offence charged with; that after commission of crime, applicant remained absconder which lends further support to the prosecution case and that after arrest of the accused challan has been submitted and the trial has commenced, so at this stage, applicant is not entitled to the concession of bail. Learned APG has referred the case-law reported in PLD 1984 SC 157. Learned Counsel for the complainant argued that the specific role is attributed to the applicant; that co-accused with the similar role had been convicted by the trial court and his appeal had been dismissed by this court; that applicant is cousin of co-accused Shalam; that the certificate has got issued by the applicants after 8 to 9 months of the commission of the alleged incident.
5. I have heard the arguments of learned counsel for the parties and learned APG and have also gone through the record as well as the case law cited at the bar with their valuable assistance.
6. According to the FIR, it is a day light occurrence which took place at 3:30 p.m. As per report the applicant along with his co-accused have severely thrashed the deceased with hatchet blows, report was lodged by the complainant Dodo Khan Banglani who along with others have witnessed the occurrence. In Doctor's opinion, the weapon used was blunt. The deceased succumbed to the injuries on the same day. Besides that, eye-witnesses have recorded their statement before the Magistrate under section 164, Cr.P.C., and they all have supported the prosecution version in all respects of mode, manner and the Number of assailants. In such like cases, role of each accused cannot be segregated for purpose of conviction and sentence. Since each one of the unlawful assembly has actively participated in the crime in prosecution of their common object, so they all including applicant are burdened with constructive liability. Reliance is placed on the case titled Munawar v. The State (1981 SCMR 1092).
7. Section 497(1), Cr.P.C. places complete bar on grant of bail in offences entailing punishment of death, imprisonment for life or imprisonment for ten years. Nevertheless bail can be allowed, pursuant to section 497(2), Cr.P.C., which in unequivocal terms stipulates that if it appears to the officer incharge of Police Station or court at any stage of investigation, enquiry or trial, as the case may be, that there are no reasonable grounds for believing that accused has committed a non-bailable offence but there are sufficient grounds for further enquiry into his guilt, accused shall be released on bail. Without recording such findings, the accused cannot be released on bail merely on the ground of further enquiry, for almost every criminal case in normal course, is of further enquiry. This provision has time and again came under consideration of the august Supreme Court and their Lordships observed in a case titled Muhammad Sadiq v. Sadiq and others (PLD 1985 Supreme Court 182) that the accused shall be released on bail if the court after taking cognizance comes to the conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without such findings of the court, an accused shall not be released on ground of mere further enquiry under subsection (2) to section 497, Cr.P.C. Same view was reiterated in the cases titled Arbab Ali v. Khamiso and others (1985 SCMR 195) and Asmatulah Khan v. Bazi Khan and another (PLD 1988 Supreme Court 621). In the latter case, their Lordships have further observed in Paragraph-3 of the judgment that mere possibility of further enquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection (2) of section 497, Cr.P.C. and same was the view expressed in the cases titled Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 1990 Supreme Court 83) and Iqbal Hussain v. Abdul Sattar and another (PLD 1990 Supreme Court 758). In these cases, bail allowed by the High Court was cancelled by the august Supreme Court for violation of the same principle. In the case titled Shoaib Mahmood Butt v. Iftikhar ul Haq and 3 others (1996 SCMR 1845), the august Supreme Court while elaborating the principle of further enquiry held as follows:--
"Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C. but there are grounds for further enquiry which may show that he may not be convicted of the charge under suction 302, P.P.C. but may be acquitted or convicted for a lesser offence."
8. The principle so laid down by the august Supreme Court as referred herein above, still holds the field and has not undergone any change of view of the apex Court. In view of the direct charge made in the FIR, supported by medical evidence, statement of eye-witnesses and noticeable abscondence of the accused which on principle of res gestae, being immediate conduct of accused, corroborates the prosecution case as a circumstantial evidence, no such findings can be recorded by this court that there are no reasonable grounds for believing that the applicant has committed a non-bailable offence but there are sufficient ground for further enquiry into his guilt. It follows that case of the applicant does not fall within the purview of section 407(2), Cr.P.C., at the touchstone of case law referred herein above.
9. Other than that, the applicant after occurrence, remained absconder for a period of 17 years and has not offered any explanation for his noticeable abscondence, much less plausible. It is settled law that a fugitive from law loses his normal rights, procedural as well as substantial, and bail may be refused on the sole ground of abscondence regardless of the merits of the case. In the case titled Muhammad Sadiq v. Sadiq and others (PLD 1985 Supreme Court 182) bail allowed by the Peshawar High Court Abbottabad Bench was cancelled by the august Supreme Court wherein there was unexplained noticeable abscondence of six months of the accused. Same view was expressed by they Lordships in the cases titled Awal Gul v. Zawar Khan and others (PLD 1985 Supreme Court 402) and Ibrahim v. Hayat Gul and others (1985 SCMR 382) and latest in the line is Raja Fazal ur Rehman v. Muhammad Afzal and another (2010 SCMR 179).
10. So far the point of alibi regarding the presence of applicant in the SAZDA office on the day of commission of alleged incident is concerned, the perusal of certificate transpires that same has been issued on 20.08.2001 by the office of Assistant Director Range Management SAZDA, Thar Region at Umerkot and same does not show the presence of applicant with specific time in the office. The distance between place of incident and SAZDA office Umerkot, is about 22 Kilometers which is so short from which it can be presumed that the accused can easily attend the office after or even before the commission of the alleged crime.
11. With regard, the case law referred by the learned counsel for the applicant is concerned that has got no relevance to the facts of instant case and are distinguishable on facts.
12. It is worthwhile to be mentioned here that the Challan has been put in Court and trial is to commence. In such situation, it has all along been the settled principle of law, set by the august Supreme Court that when case is fixed for evidence, bail application should not be decided on merits and the matter be left to the discretion of the trial court lest it may prejudice case of either side. In this respect cases of Muhammad Sadik and others v. The State (1980 SCMR 203), Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585), Mian Dad v. The State and another (1992 SCMR 1418), Said Akbar and another v. Gul Akbar and another (1996 SCMR 931) and Shahid Farooq v. The State and others (2011 SCMR 1619) may be referred:
13. For what has been discussed above, the applicant has failed to make out his case for bail, therefore his bail application is dismissed.
14. It is needles to state here that what has been observed herein above is tentative in nature and will not influence the mind of trial court at trial in any manner who shall form its own opinion after recording of evidence of the parties.
MQ/N-27/Sindh Bail refused.