' AZIZULLAH M. MEMON, J.--- Applicant/accused Waris Burdi was sent up to the special Court constituted under the law then in force viz. Suppression of Terrorist Activities (Special Courts) Act, 1975, but was shown as absconder in the challan pertaining to F.I.R. No,50 of 1991 of P.S. Hala. Co- accused persons were also sent up to the Court showing them as absconders, out of whom some were subsequently arrested by the police and were produced before the trial Court, apparently with a supplementary challan, and trial proceeded against such subsequently arrested accused; but when the material witnesses of the prosecution were examined by the trial Court, they deposed that such accused were not the same who were named in the F.I.R. As well as in the challan.
2. Accused/applicant Wairs Burdi was arrested on 8th March, 2004 and a bail application was moved on this behalf, which was heard by learned Special Court for Suppression of Terrorist Activities, Hyderabad and vide order, dated 31-5-2004 stands dismissed with the observations that the name of the applicant/accused with his caste was shown in the Roznamcha entry, which was initially registered at Police Post Old Hala, that relevant proceedings having been initiated against him, he was declared absconder by the trial Court vide order dated 14-12-1992, that specific role was attributed against the applicant/accused for having committed the alleged offence of the case while duly armed with fire-arm and actually made assault on the complainant party towards carrying out his intention of commission of alleged offence of the case, whereby deceased of the case, namely Misri received injuries on his person and in consequence he succumbed to the same and died.
3. Heard Mr. S. Madad Ali Shah, learned counsel for the applicant and Muhammad Azeem Panhwar, Advocate for the State.
4. Learned counsel for the applicant has cited Muhammad Suleman v. Nasib-ud-Din and others 1985 SCM R 1709 wherein Honourable Supreme Court of Pakistan was pleased to decline the cancellation of the bail, which was granted to the accused of the said case by the learned trial Court, with the observations to the effect that the police officials did not appear to be keen to arrest the said accused/applicant for reasons best known to them, and that the accused/applicant was able to place sufficient material on the record that he was actually available at his place of residence.
5. Learned counsel has further cited Inayatullah v. The State PLD 2003 Kar. 416 wherein a learned Division Bench of this Court was pleased to admit the accused/applicant of the said case to bail with the following observations:-- "In the background of the above stated circumstances, it may be observed that since the main accused namely Ashraf has been acquitted of the charge, the guilt of applicant, who has been implicated on account of his vicarious liability, would, ordinarily call for further enquiry. In such circumstances, the fact of abscondence by itself would not be sufficient to withhold concession of bail, particularly when in similar circumstances co-accused Hassan has been granted bail by this Court. Although learned A.A.-G. Opposed the bail but we find no legitimate reason to reject the bail plea."
6. Learned counsel for the applicant has further argued that parentage of the accused/applicant was never disclosed by the investigating police in the charge-sheet and that he was all along available at his place of residence and was never informed by any authority or police authority to the effect that he was either required in the present case or was ever shown as absconder therein; it is further argued that some of the co-accused were also initially shown as absconders in the charge-sheet who were arrested by the police at later stage of the proceedings of the case, and against whom the trial proceeded, but witnesses of the prosecution exonerated them by deposing that they were not the actual culprits of the incident, though their names appeared in the F.I.R. On the basis thereof trial commenced before the learned trial Court.
7. It is further argued by learned counsel for the applicant that identity of, the applicant/accused is yet to be established by the prosecution and that the applicant has no enmity with the complainant party of the case, who admittedly had enmity with people of Khosa Tribe.
8. Learned counsel appearing for the State has vehemently opposed the request for grant of the bail by stating that it is by now a settled principle of law that fugitive from the process of law loses some of the rights otherwise available to him including right of the bail.
9. Be that as it may, the fact remains that some of, the co-accused having been shown as absconders and named in the F.I.R. Were arrested at subsequent stage, the witnesses of the prosecution exonerated them making a simple statement that they were not the accused of this case; under such circumstances, the argument of learned counsel for the applicant that there may be many other persons by name of Waris and by caste of Burdi, therefore, it is yet to be seen as to whether or not the present applicant was, or was not, actual culprit of this case, particularly his father's name was not made available by the prosecution.
10. In view of the decision of learned Division Bench of this Court reported in PLD 2003 Kar. 416, in our humble view, applicant deserves to be admitted to bail. Accordingly, he is granted bail subject to his furnishing surety in the sum of Rs,2,00,000 (Rupees two lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.