1. ' Mrs. QAISER IQBAL, J. Applicant Gulab son of Khalique Dino Dahri has resorted to file application in crime No,7 of 2006 registered at Police Station Pubje for commission of offences under section 302, 34 P.P.C.
2. ' On 24-4-2006 alleged incident occurred, due to matrimonial dispute between the applicant and complainant's brother Ali Nawaz two weeks prior to the incident. Applicant and his son Ashique Dahri were annoyed with Ali Nawaz extended threats of dire consequences. On the fateful day Ali.
3. Nawaz Ali Hassan along with Achar were going to the village of Abu Bakar towards Chanda Singh Panj Foota were intercepted by applicant armed with hatchest and co-accused Ashique Dahri with country made pistol after hakal co-accused Ashique Dahri fired at Ali Nawaz bullets hit him and fell down. Both the culprits escaped on motorcycle toward eastern side. They could not be followed by the complainant party. Victum Ali Nawaz was shifted to hospital. He succumbed to the injuries.
4. ' Learned counsel for the applicant has contended that first information report has been manipulated: due to enmity both father and son have been roped, no overt act is attributed to the applicant nor alleged hatchet was recovered from his possession after his arrest. It is further contended that the applicant had not facilitated the co-accused in commission of crime therefore question of vicarious liability needs further inquiry, which shall be determined at trial. In support of the above contention, reliance is placed on the case of Suhrab v. The State 2007 YLR 2374 Karachi.
5. Accused was enlarged on bail in a murder case as no overt act was attributed to him in the first information report, he was simpliciter present on the spot along with K.K. There were no allegations that he had opened fire and had taken part in the offence.
6. ' Learned A.A.-G. Has vehemently , opposed the bail plea of the applicant mainly on the ground that the applicant remained fugitive of law after registration of case for one year. He along with co- accused had been extending threats to deceased. Ali Nawaz with dire consequences, therefore, absconsion of the applicant itself could be considered as a good ground for rejection of bail plea.
7. ' I have heard learned counsel for the parties, perused the record available before me.
8. ' The allegations in the first information report are that on account of matrimonial dispute, there was animosity between the applicant and deceased Ali Nawaz resulted in altercation, later applicant along with co-accused came in contact with the deceased. Fatal blow is attributed to the co-accused no overt act is attributed to the applicant in the commission of the crime, even lalkara is not attributed to the applicant.
9. ' As far as the abscondence of the applicant is concerned, proceedings as envisaged under section 512, Cr.P.C. Have not been drawn against him. There is no absolute rule that a fugitive from law should under no circumstances be enlarged on bail, although abscondence does constitute a relevant factor when examining question of bail.
10. 'In the reported case of State v. Malik Mukhtar Ahmed Awan 1991 SCM R 322, the Honourable Supreme Court has held as under:-- "It may however be observed that it is not absolute rule that a fugitive from law 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 case of Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCM R 1373. It has been held as under:- "That obscondence per se is not proof of the guilt of an accused person---Disappearance of a person named as a murdered culprit after the occurrence is but natural, whether named rightly or wrongly. It may however, create suspicion against him but suspicions after all are suspicions."
12. ' In case of Muhammad Khan and another v. The State 1999 SCM R 1220 Honourable Supreme Court has held as under:- "That abscondence is not sufficient by itself to prove guilt---Alleged abscondence of accused not proved---It can never remedy defects in prosecution case as it is not necessarily indicative of guilt."
13. ' In case of Gul Khan v. The State 1999 SCM R 304. While dilating on the point of absconsion of accused and dealing with its effect it has been observed by the apex Court:-- "Abscondence of an accused itself may not point out towards his guilt but it depends upon the facts and circumstances of each case as to whether abscondence was a pointer to his guilt or not.
14. Abscondance as a circumstances proving the guilt is based upon the assumption that the guilty man tries to escape from the police violence, the innocent man rushes to the police to vindiento his innocence. Such assumption is based upon several other assumptions and it would not be safe to hold that abscondence of an accused automatically amounts to proof of his guilt. Abscondence per se is not sufficient to prove the guilt but abscondence of an accused for a long time for which no satisfactory explanation is given by the accused coupled with other evidence on record would be the criteria to determine the guilt or innocence of an accused person. The conduct of a person in absconding after the commission of offence would be relevant to show that he was concerned in the offence. Abscondence i.e, equally consistent with the innocence and guilt because different persons are differently constituted and some accused persons though innocent deliberately abscond rather than to face or deal of criminal trial."
15. ' In case of Muhammad Khan and another v. The State 1999 SCM R 1220 following dictum has been laid down:-- "Abscondence of accused can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt nor is ever sufficient by itself; to prove the guilt."
16. ' In case of Syed Ali Shah v. The State 1993 PCr.LJ Karachi 1118. While dilating on the issue of abscondence it has been observed:- "That abscondence of accused by itself is not sufficient to adjudge him guilty for an offence inviting capital punishment."
17. ' In case of Abdul Raheem v. The State 1999 PCr.LJ Pesh:1305 it has been held as under:- "That abscondence per se was no ground to sustain conviction thereon because people do abscond whether charged rightly or wrongly---Abscondence could be taken into consideration when substantial evidence of unimpeachable character or strong circumstantial evidence was available to connect accused with commission of offence."
18. ' In case of Sadardin alias Sadar v. The State 2007 PCr.LJ 1579 accused hough was absconder, but it was not an absolute rule that absconder was not entitled to bail in any circumstance it is however held bail could be granted even to a fugitive from law on the ground that no reasonable grounds were available for believing that accused had committed a non-bailable offence, but sufficient grounds existed for further inquiry into his guilt.
19. From the perusal of the above judgments, it is explicitly revealed that bail matters no universal rule exists which can be pressed into service in all cases as every case has distinguishable features.
20. ' In the instant case no overt act has been attributed to the applicant except that he was present at the place of occurrence having past enmity with the complaint and deceased Ali Nawaz therefore, c against him requires further inquiry into guilt. In such cases bail cannot be withheld as a matter of punishment as the rule safe administration of criminal justice bail and not jail.
21. ' In view of above, applicant is entitled to the concession of bail, applicant be released on furnishing solvent surety in the sum of Rs,2,00,000 (two hundred thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.