1. ' NADEEM AZHAR SIDDIQUI, J.---The applicant seeks his release on bail in Crime No,120 of 1998 of Police Station Tangwani, for offence under sections 393, 324, 337-A(i), 337-F(i), P.P.C. And 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' The facts as per F.I.R. Lodged on 19-11-1998 at 1000 hours by complainant Liaquat Ali Bijarani are that on 18-11-1998 he along with his brother Rehmatullah and relative Shahmore Bakhrani were returning to their village on the motorcycle of complainant after attending the invitation of Haji Ubedullah Jafferi at village Darya Khan Jafferi and when reached near their village at 6-00 p.m., accused persons, namely, 1) Dadoo, 2) Katto, both armed with rifles, 3) Taj Muhammad, 4) Ismail, 5)
3. Laqoo alias Luqman, all with Kalashinkovs, intercepted them and they commanded the complainant party to get down of the motorcycle,. To which they refused. In the meantime, Shahmore alighted of the motorcycle and tried to grapple with accused Taj Muhammad, but co- accused Dadoo and Katto, with intention to kill, fired with their rifles at him who fell down on the ground after sustaining injuries at his left side. Acused Ismail and Luqman then started beating the complainant with butts of their K.Ks. And accused Taj Muhammad snatched Seiko-5 wrist watch, cash Rs,1,000 from Rehmatullah. Due to the cries raised by. The complainant party and on approaching of village people towards venue of occurrence, the accused persons went away leaving the motorcycle there. Consequently, the complainant after his treatment in the hospital went to police station and lodged the report.
4. ' The applicant was arrested by the police and sent up for trial. Application for bail filed by the applicant has been rejected by the learned Additional Sessions Judge, Kandhkot vide order dated 26-1-2006 observing as under:-- "I have given due consideration to the points raised. I find that the police challaned this case on 12- 5-1999, showing the present accused as absconder and subsequently on 11-9-2004 he was declared as proclaimed offender on the basis of the statement of process server H.C. Riaz Ahmed, as Exh.l. He has been recently arrested and has been sent up under supplementary challan on 2-11- 2005. His name appears in the F.I.R. With a serious allegation of robbery during daytime and causing fire-arm injuries to complainant, after a period of seven years the witnesses have taken somersault giving statement different than the prosecution case to enable accused to get bail. The Honourable Supreme Court has disapproved the grant of bail on the ground of affidavits (PLD 1997 SC 347). The accused remained fugitive from law for a considerable period, which also disentitles accused to the grant of bail. Co-accused Dadu, after getting bail has absconded away and there is every possibility of abscondence of present accused, which is also one of the factor to be considered for the grant of bail. The offence is serious one and falls under prohibitory clause of section 497(1), Cr.P.C. Which also disentitles the applicant/accused to grant of bail."
5. ' For the reasons discussed above, I find no merits in this bail application the same is dismissed.
6. ' The learned counsel for the applicant contended that he is pressing the bail application only on the ground that by filing the affidavits, the complainant and eye-witnesses have exonerated the applicant from the commission of the offence and that by filing affidavits the case has become of two versions and which of the version is correct is to be determined at trial. He further submits that mere abscondence of the applicant is not sufficient to refuse bail to him. The learned counsel relied upon the following reported cases.
(1) Muhammad Nawaz v. The State (1991 SCM R 111), (2) Ali Muhammad v. The State (PLD 2002 Kar.
7. 125), (3) Zafar Iqbal v. The State (PLD 2004 Kar. 566), (4) Inayatullah v. The State (PLD 2003 Kar.
8. 416), (5) Sharbat v. The State (2003 M LD 1191).
9. ' The learned State Counsel opposed the grant of bail on the ground that the incident took place on 18-11-1998 and the applicant and fugitive of law and proclamation was made on 11-9-2004 and has further submitted that since the applicant was fugitive of law and was recently arrested on 2-11- 2005 he is not entitled to the concession of bail. The learned counsel relied upon the reported case of Naseer Ahmad v. The State (PLD 1997 SC 347).
10. ' I have heard the learned counsel for the parties, perused the record made available before me and the case-law cited by the learned counsel at bar.
11. ' The clear allegations in the F.I.R. Against the applicant are that he along with other co-accused were having rifles in hands and co-accused Dadoo and Katto made direct rifle shots at Shahmore with intention to commit murder, which hit at his right side. The complainant as well as injured P.Ws.
12. Rehmatullah and Shahmore subsequent to F.I.R. Filed affidavits before the trial Court and stated as under:-- "That the applicant/accused Katto arrested by police is not amongst my culprits hence I have no objection to grant of bail to him by this Honourable Court."
13. ' From the perusal of the F.I.R. And the affidavits it is clear that complainant and the P.Ws. Have taken somersault and have given statements which were different from prosecution case and filed affidavits enabling the applicant to get bail. The trial Court has dismissed the bail application on the ground that the applicant was declared as proclaimed offender and had been recently arrested, and his name appears in the F.I.R. With serious allegations of robbery and causing fire- arm injuries and that the Supreme Court has disapproved the grant of bail on the ground of affidavit. The learned trial Court has not examined the case on merits independently of the affidavits and abscondence of the accused. The learned trial Court was also impressed by the abscondence of the co-accused after getting bail. This is not a rule and the abscondence of one accused cannot be used against the other accused, more particularly keeping in view the trend of case-law, which says that where accused has good case the abscondence alone should not come in the way of accused. The Honorable Supreme Court has not totally disapproved the grant of bail on the basis of affidavits. Every case has to be examined independently on the basis of material available on record and in that context the affidavits can also be considered. In the case of Naseer Ahmed v. The State (PLD 1997 SC 347) the Honourable Supreme Court held as under:-- "The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eyewitnesses in the manner states above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits".
14. ' In another case reported as Rehmat Ali v. The State, 1979 SCM R 30, the Honourable Supreme Court has held as under:-- "But without commenting as to what weight, if any, can and ought To be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this we think that the case of the petitioners is one of "further enquiry" under section 497(2), Cr.P.C."
15. ' In another case Sarwar Sultan v. The State (PLD 1994 SC 133) the Honourable Supreme Court held as under:-- "It is for the trial Court to analyse the legal worth of material to be produced by the parties including affidavits. During the hearing of bail application, the Court can make tentative assessm ent of the material, which is different from and not at equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court."
16. ' In the case of Naseer Ahmed (supra) the bail was refused for the reasons that there was sufficient material on the record which satisfied the mind of the Court with regard to the commission of the offence by the accused. The other question before me was in case the bail is refused and at the trial the applicant was found guilty no harm will be caused to him as he will get the benefit of section 382-B, Cr.P.C. However, in case the applicant was acquitted the injury caused to him due to remaining in jail cannot be repaired. The Honourable Supreme Court in the case of Manzoor Ahmed v. The State (PLD 1972 SC 81) held as under:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run'.
17. ' Due to two versions of the complainant and the P.Ws. This is a fit case to be treated as one of further enquiry. In another reported case of Shahzaman v. The State (PLD 1994 SC 65) the Honourable Supreme Court while dealing a case of cancellation of bail discussed the grant of bail on the ground of further enquiry and held as under:-- "Sections 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds of further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. 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 sow 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 charge under section 302, P.P.C. And acquitted or convicted for a lesser offence".
18. ' In view of the above, I am satisfied that there are no reasonable grounds for believing that the applicant has committed a non-bailable offence. Resultantly, the application is allowed. The applicant be released on bail upon furnishing surety in the sum of Rs,200,000 and P.R. Bond in the like amount to the satisfaction of trial Court. In case the applicant misuses the concession of bail, the trial Court shall be at liberty to initiate action against the applicant and his surety in accordance with law.