1. ' NADEEM AZHAR SIDDIQI, J.--- Through this application, the applicant has sought bail in Crime No,210 of 2004 of Police Station K.N. Shar registered for an offence under sections 364, 34, P.P.C.
2. ' The prosecution story in nutshell goes to say that on 27-7-2004 at 9-00 p.m. Complainant along with his son Muhammad Sharif brother Sohbat Fakir and nephew Gul Bahar were standing at Thariri Jado Shaheed stop of Kakar Town when accused persons namely Jan Muhammad alias Janoo Brohi, applicant/accused Sadardin alias Sadar, Meer alias Shafi Muhammad and another unidentified person met them and they asked Sohbat Fakir to accompany them to Khanpur where they got a work on which Sohbat Fakir accompanied the above accused persons in a car and left the scene. It is further alleged in the F.I.R. That till 2-3 days Sohbat Fakir did not turned up therefore, complainant along with above P.Ws. Went to relatives of accused, Janoo Brohi and apprised above facts who suggested them to meet Janoo Brohi personally as he was a criminal type of man. Then the complainant party approached said Janoo Brohi at his Otaq and asked for return of Sohbat Fakir who put them on hopes and ultimately refused. Subsequently, such F.I.R. Was lodged.
3. ' After usual investigation, the police challaned the case while showing present applicant/accused Sadardin alias Sadar and co-accused Jan Muhammad alias Janoo as absconders.
4. ' On coining to know about the pendency of case, the applicant moved pre-arrest bail application which was turned down on 27-1-2004 by learned 1st Additional Sessions Judge, Dadu which was upheld by this Court vide order, dated 8-3-2005.
5. ' Thereafter, the applicant/accused voluntarily surrendered before the police on 9-1-2006 and then he moved bail after arrest application which was also rejected by the trial Court vide order, dated 24-1-2007 on the ground that name of applicant find place in the F.I.R. Who is involved in heinous offence which comes within the prohibitory clause of section 497, Cr.P.C. And chosen to remain fugitive from law for more than two years and also that it is not known as to whether the abductee Sohbat Fakir is dead o: alive as he has not yet returned back.
6. ' It is contended by learned counsel for the applicant that the F.I.R. Was lodged with the delay of 37 days with mala fide intention and ulterior motives; there is no specific allegation against the present applicant nor any incriminating material is recovered from his possession. He further submits that the applicant was not in knowledge of case against him and on coming to know about the case he invoked the legal remedies available to him under the law and on failure he voluntarily surrendered before police on 9-1-2006. He has pointed out that co-accused Meer alias Shafi Muhammad was let of by the police under section 169 and co-accused Gul Hassan was granted bail on 18-1-2005 by the trial Court whose case on merits is similar to that of present applicant. He also submitted that the very narration of F.I.R. Reveal that the alleged abductee Sohbat voluntarily accompanied the accused party therefore, it cannot be said without further inquiry that who abducted him. On all these scores submissions, learned counsel has urged that the applicant is entitled to bail on merits as the absconsion alone is not sufficient to reject his bail plea. In support of his submissions, he has relied upon the following reported cases:-- ' (1) Raees Pinyo v. The State 2007 YLR 554 and (2) Tarique Zia v. The State 2003 SCM R 958.
7. ' Mr. Naresh Kumar, learned counsel for the complainant has vehemently opposed the bail plea of the applicant mainly on the ground that the whereabouts of abductee Sohbat Fakir are still not known and it is not clear as to whether he is dead or alive. He submits that the applicant was declared as proclaimed offender who remained absconder for 2 years and it is settled law by now that in appropriate cases absconsion of the accused could be considered as a good ground for rejecting bail plea. He further submitted that the applicant had not voluntarily surrendered before police but he was arrested on 9-1-2006 and also the proceedings under sections 87 and 88, Cr.P.C.
8. Were intimated against him. He has relied upon the following reported cases:-- ' (1) Awal Gul v. Zawar Khan PLD 1985 SC 402, (2) Rao Qadeer Khan v. State PLD 1981 SC 93 and (3)
9. Hayerth Bakhsh v. State PLD 1981 SC 265.
10. ' Mr. Nisar Ahmed Abro, learned counsel for the applicant conceded to grant of bail on the ground that since 9-1-2006 the applicant is behind bar while the challan was submitted on 28-10-2004 and no witness has yet been examined, and that the co-accused Gul Hassan has been granted bail by the trial Court while co-accused Meer alias Shafi Muhammad was let of by the police and the case of present applicant is similar to them on merits as the absconsion alone would not come in his way as per settle law.
11. ' I have heard the learned counsel for the parties and perused the record made available before me.
12. ' The allegations in the F.I.R. Are that the alleged abductee Sohbat Faqir along with applicant and others went in a car towards Khanpur and did not come back on the following day. As per the allegation in the F.I.R. It appears that since the applicant was last-seen with the alleged abductee he was suspected in the alleged abduction. From the contents of the F.I.R. It also appears that the alleged abductee has voluntarily went with the applicant and without further enquiry it cannot be said that applicant has abducted the alleged abductee. Furthermore no direct evidence is available against the applicant and the F.I.R. Was delayed of 37 days and in absence of any direct, evidence it cannot be said that there are reasonable ground for believing that the applicant has committed an offence falling under the prohibitory clause of section 497, Cr.P.C.
13. ' As far as the abscondence of the applicant is concerned it is not an absolute rule that the absconder is not entitled to the bail in any circumstances.
14. ' In the reported case of Rao Qadeer Khan v. The State PLD 1981 SC 93 the Honourable Supreme Court has held as under:-- "We have examined the grounds urged by him. It stands prima facie established that the petitioner was an absconder. This would be so even if the explanation offered from the petitioner's side is taken into consideration. The abscondence is of such period and type that the petitioner has disentitled himself to the concession of bail, whether the case falls within the prohibitory or other field of subsection (1) of section 497 read with 498, Cr.P.C."
15. ' In another reported case of the State v. Malik Mukhtar Ahmed Awan PLD 1991 SC 322; the Honourable Supreme Court has held as under:-- "It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail."
16. ' In the reported case of Awal Gul v. Zawar Khan PLD 1985 SC 402, the Honourable Supreme Court has held as under:- "It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case---The principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a convict (in becoming fugitive from law)."
17. ' In another reported case of Muhammad Sadiq v. Sadiq PLD 1985 SC 182, the Honourable Supreme Court has, held asunder:-- "In some rare cases notwithstanding abscondence the accused might be released on bail; for example; when the accused is a woman, a child or a sick and infirm person or when he otherwise become entitled to bail .As of right under subsection (2) of section 497, Cr.P.C. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
18. ' In another reported case of Ibrahim v. Hayath Gul 1985 SCM R 382 the Honourable Supreme Court has held as under:-- "It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf.
19. However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C.
20. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
21. ' From the perusal of the above judgments it appears that the bail can be granted to a fugitive of law on the ground that there are no reasonable grounds for believing that the accused has committed a non- bailable offence but there are sufficient grounds for further inquiry into his guilt.
22. ' The other aspect of the case is that bail cannot be withheld as punishment and if reasonable doubt arises with regard to participation of accused in the offence it will be better to release the accused on bail instead of keeping him in jail.
23. ' The Honourable Supreme Court in the case of Syed Amanullah Shah v. The State PLD 1996 SC 241 has held as under:-- "So we are of the view that where post-arrest bail is granted in such cases, then it should not be cancelled as a matter of course or in routine. Once bail is granted by a Court of competent jurisdiction, then very strong and unexceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. Are not punitive. There is no legal compulsion for cancelling in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilt. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and relief of interim bait granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair."
24. The other aspect of the case is that the criminal cases are to be decided on the basis of facts of each case. In criminal cases, specially in bail matters, there is no universal rule of application which can be pressed into service in all cases, and this would depend on the facts and circumstances of each case. In the reported case of Muhammad Nawaz v. State 1998 SCM R 891 the Honourable Supreme Court has held as under:-- "It has been held in many cases that earlier decided criminal cases can hardly offer assistance on account of the diverse nature and distinguishable feature of each case and in such a situation rules or principles of general application cannot be laid down."
25. ' In view of above this bail application is allowed. The applicant the released on his furnishing solvent surety in the sum of Rs,2,00,000. Two lacs and the P.R. Bond in the like amount to the satisfaction of trial Court.