' KHAWAJA NAVEED AHMED, J.---This bail application has been moved on behalf of applicants Ramzan, Jamaluddin and Ameer Jan by Messrs Ali Nawaz Ghanghro and Jai Jai Vehsno, advocates for the applicants.
2. Brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Meeran Jafri on 13-10-2005 at 1630 hours at Police Station, Lakhi Ghulam Shah are that their relative Saleem Jafri had a quarrel with his brother Gulabi about one and a half month prior to the incident. He stated that due to quarrel, Saleem and his other relatives were not happy and they had threatened to kill Gulabi. It is stated in the F.I.R. That on 8-9-2005 at evening time complainant and his brother Gulabi along with their other relatives, namely Sain Bux and Abdul Nabi were coming to village Marri for their personal work. About 7-00 p.m. When they reached near Murree Bridge on Sindh Wah they had seen that accused Saleem, Motibar, Mawalee, Mekho Salik, Khalid, Hidoo, Jamaluddin, Shamno, Ameer Jan, Udho, llimuddin, Mehrab and Ramzan came in a Datsun Pickup with firearms in their hands. They stopped their Datsun and on the points of guns had picked up Gulabi and put him in their Datsun Pickup and went away. Gulabi did not come for two days to his house. It is stated by the complainant that he had been asking the accused persons about the whereabouts of Gulabi and they replied to him that Gulabi is staying with them due to some work. The complainant went to the house of accused persons on 12-9-2005 in order to make enquiry about his brother, It is stated that accused persons had told him that he will hear about his brother in the newspaper. On 13-9-2005 it came in the newspaper that Khairpur Police had received dead body from Abul Wah.
The complainant had identified the body as that of his brother. Police had buried the dead body.
The complainant states that he had lodged the F.I.R. After consultation with the nekmards.
3. Police after usual investigation had submitted the charge sheet wherein the names of accused Saleem, Motibar, Mawali, Mekho, Mehrab, Hadi Bux, Salik and Hidoo were kept in column No,2.
Present accused were absconders. Police had submitted challan against them under section 512, Cr.P.C. They continued to remain absconders till proceedings under sections 87 and 88 Cr.P.C. Were completed against. Them and they were declared as proclaimed offenders. The accused persons whose names were kept in column No,2 of the charge sheet had applied to the Court of Additional Sessions Judge-II, Shikarpur for pre-arrest bail who was pleased to grant them bail by order dated 13-9-2006.
4. After one set of the accused persons was granted bail the present three persons had surrendered before the trial Court while remaining three are still at large. It is settled law that absconder loses his normal right of grant of bail and superior Courts are very strict in cases where proceedings under sections 87 and 88, Cr.P.C. Have already been completed and accused had been declared proclaimed offender.
5. The learned Advocates for the applicants have argued that the case of present applicants is at par on merits with that of co-accused who were placed in column No,2 of challan by the police and have been admitted to pre-arrest bail. It is further stated that all the P.Ws. Are interested and related to the complainant F.I.R. Has been lodged after deliberations with the nekmards and the inordinate delay in lodging the F.I.R. Has lost sanctity of the F.I.R.
6. The learned State counsel Mr. Nisar Ahmed G. Abro, has not opposed the bail in view of the case law reported in 2008 SCMR 249. The relevant portion whereof is reproduced hereunder:-- "(3) It is contended that three co-accused who were found innocent during course of investigation have been released on bail and the case of the petitioner is at par with their case but he along with others has been summoned by the trial Court on the basis of private complaint lodged against him on or about 252-2006.
(4) After hearing learned defence counsel and the State counsel, we feel that the case of the petitioner is identical to the case of Sattar, Sarwar and Qasim, therefore, he is entitled to equal treatment in the eyes of law, following the rule of consistency. We, therefore, admit the petitioner to bail during the pendency of the trial against him with solvent surety in the sum of Rs,1,00,000 (Rupees one lac) and to the satisfaction of the trial Court."
7. I have heard both the learned counsel as well as learned State counsel, have perused the impugned order of the trial Court and police papers. No doubt it is settled law that absconder loses his normal rights of bail once he has been declared proclaimed offender. It has been observed in the case of Awal Gul. v. Zawar Khan and others reported in PLD 1985 Supreme Court 402, as under:- - ' "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded.
' It has not been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration for eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another 1979 SCMR 90, Rao Qadeer Khan v. The State PLD 1981 SC 93, Hayat Bakhsh and others v. The State PLD 1981 SC 265 and Kh. Azhar Hussain and others v. The State 1983 SCMR 978. 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 principles 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 conduct (in becoming fugitive from law.)"
8. In the same year the Honourable Supreme Court in authority reported in PLD 1985 SC page 182 had elaborated its judgment in Awal Gul's case as under:-- ' "As far the effect of abscondence, the Court referred to its earlier decision in Awal Gui v. Zawar Khan and other (Criminal Appeal No,15-P of 1984 decided on 28th November, 1984) in which the law in respect of persons who become fugitive from law was laid down. Herein, it was observed that "a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law" and it was added that "unexplained noticeable abscondence disentitled a person to the concession of bail notwithstanding the merits of the case"; and went on to observe that-- ' " in some rare cases notwithstanding abscondence the accused might be released on bail; for example; when the accused is a women, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under sub-section (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."
' It is in the light of the law laid down by this Court in the above decisions that the effect of the abscondence by the respondent on their right to obtain bail will fall for consideration.
9. In 1986 SCMR Page 166 Juma Gul v. Surat Khan and others the Court has tdefinederm 'abscond' as under:-- ' "We find that abscondance of the respondent has also been left in doubt. This Court has observed as follows in Bacha Said v. The State PLD 1978 SC 102.
' "The term 'abscond' with its derivatives is not defined in the Code of Criminal Procedure, although it occurs in sections 87, 90-A and 512 of the Code and also in section 172 of the Penal Code. In this connection section 87(1) of the Code lays down that if any Court has reason to believe that any person, against whom a warrant has been issued by it has `absconded' or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring to appear at a special place and time before it."
10. In authorities reported in subsequent years 1992 PCr.LJ 392, PLD 2000 Quetta 72, 2000, PCr.LJ 1508, 1991 PCr.LJ 2229, 1993, PCr.LJ 683 and 1992 PCr.LJ 409 similar views have been adopted as has been laid down in the authorities of Supreme Court quoted above. In the case reported as The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322) while dealing with the ground of abscondance of accused the Honourable Supreme Court had observed 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."
11. In the present case, general allegation is against 14-persons and C section 149, P.P.C. Of vicarious liability has been applied. However, during investigation the police itself has exonerated 8-persons and have put their names in column No,2 of the challan. No cogent reasons have been given by the Investigating Officer in the challan as to how he has distinguished the case of present applicants from that of co-accused whose names have been placed in column No,2 of the challan.
In my humble opinion this ground alone makes the present case as one of the further enquiry under section 497 (2), Cr.P.C. And as such I grant bail to the applicants upon their furnishing surety in the sum of Rs,100,000 each and executing P.R. Bonds in the like amount to the satisfaction of the trial Court.