1. ' MAQBOOL AHMED AWAN, J.---The applicants Muhammad Ail alias Ali son of Abdul Rasheed and Saeed Abbas son of Muhammad Ayaz, approached this Court after their bail application was dismissed by the learned Vth: Additional Sessions Judge, Hyderabad on 5-7-2008.
2. ' The complainant Muhammad Idrees lodged the F.I.R. On 30-6-2000 at 2030 hours, which reads as under:-- "I am residing on the above mentioned address along with my family and am transporter by profession. On 29-6-2000 at 2330 hours, I along with my friends namely Rashid and Amjad were sitting near the house of Gulzar Bhai, President of Atta Chaki owners and Unit Incharge Halqa 31 of M.Q.M. In the meanwhile, Gulzar Bhai arrived there along with his family. His family went inside the house while Gulzar Bhai was just to alight from his car, when five persons namely Muhammad Ali alias Ali son of Abdul Rasheed, Yousif Peti Walla son of Bundoo, while the name of driver of said motorcycle was not known who can be identified if seen. On other motorcycle Muhammad Ali son of Taj Muhammad Police constable and another unknown was driver of the said motorcycle to whom we can identify if seen. The lights of streets were on. All the above named accused were armed with T.T. Pistols and on their arrival straightly made firing upon Gulzar Bhai due to which Gulzar became serious injured and fell on the ground. On hearing of firearm shots, the neighbourer namely Kashif son of Rasheed Ahmed Khan, Raheel Ali son of Rasheed Ahmed Khan came out from their houses on which above named accused also straightly fired due to which they both became injured. Out of two unidentified culprits, one was of normal height, blackish colour, aged about 26- 27 years. The above accused persons after firing went away on the above two motorcycles.
3. Thereafter we removed the injured Gulzar to LMCH, Hyderabad in a car where Gulzar succumbed to the injuries and expired. In the meanwhile, Police of Hali Road also reached at the hospital who made there necessary proceedings. After the death of Gulzar, we were in contact with the administration and were also in contract with M.Q.M. In respect of funeral ceremony. After funeral of dead body of Gulzar, I went to Police Station for lodging the F.I.R. That accused Muhammad Ali alias Ali, Yousif Peti-Walla, Muhammad Ali son of Taj Muhammad police constable and two unknown culprits duly armed with deadly weapons, to whom I and above witnesses can identify if shown in furtherance of their common object committed Qalt-e-Amd of Gulzar Bhai and also injured Kashif and Raheel by firing."
4. ' The police took up the investigation, submitted the challan against Accused Muhammad Yousif, Jehangir, Muhammad Ali son of Taj Muhammad while showing applicants Muhammad Ali alias Ali son of Abdul Rasheed and Saeed Abbas as absconders.
5. ' The case was proceeded before learned IVth: Additional Sessions Judge, Hyderabad, who vide judgment, dated 13-10-2004 acquitted the co-accused Muhammad Yousif, Jehangir and Muhammad Ali son of Taj Muhammad and kept the case of applicants/accused on dormant file and after the acquittal of co-accused named above on 15-1-2008, the applicants voluntarily surrendered before the learned IVth: Additional Sessions Judge, Hyderabad and as per the order of learned Sessions Judge, Hyderabad the case was entrusted to learned Vth: Additional Sessions Judge, Hyderabad for disposal according to law.
6. ' The learned counsel appearing on behalf of the applicants submits that there are general allegations against all the accused including the applicants named in F.I.R. He submits that the present applicants were declared absconders on 6-12-2000. He further submits that on 15-1-2008 the applicants voluntarily surrendered before the learned trial Court. He submits that the accused having identical role have already been acquitted by the learned trial trial Court, therefore, .On the rule of consistency, the applicantsare also entitled for concession of bail. He then submits that abscondence will not come in the way of applicants, when they are entitled for bail under sub- clause (2) of section 497, Cr.P.C. In support of his contentions, he has placed reliance upon the following cases:--
(1) The case of State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322).
(2) The case of Muhammad Khan v. State (1999 SCMR 1220).
(3) The case of Akhtar Ali v. State (2008 SCMR 6).
(4) The case of Mitho Pitafi v. State (2009 SCMR 299).
(5) The case of Inayatullah v. State (PLD 2003 Karachi 416).
(6) The case of Sharbat v. State (2003 MLD 1191).
(7) The case of Warris v. State (2005 PCr.LJ 373)
(8) The case of Muhammad Hayat v. State (2008 YLR 72).
(9) The case of Anwar Ali Handio v. State (2008 PCr.LJ 1453).
(10) The case of Gulab Dahri v. State (2009 YLR 181).
(11) The case of Naimat Ali v. State (2009 YLR 367).
7. ' Mr. Anwar Hussain Shaikh, learned advocate for the complainant opposed the application for grant of bail on the ground that the applicants were shown as absconders and with ulterior motive and mala fide intention surrendered after acquittal of the co-accused. He went on to say that the applicants are seriously involved in the commission of offence, who while forming the unlawful assembly armed with deadly weapons, took away the life of innocent deceased Gulzar Bhai. He further submits that if the applicants were innocent, they should have joined the investigation and produces the material in their defence before the Investigating Officer. According to him, in fact they were watching the proceedings and when they came to know that co-accused have been acquitted, they surrendered before the trial Court to get the benefit of their co-accused. He submits that the father of the deceased Gulzar Bhai has filed Criminal Acquittal Appeal No,197 of 2004, which was admitted and is fixed for regular hearing. In support of his contention, he has relied upon the:-- ' (1) The case of Awal Gul v. Zawar Khan reported in PLD 1985 SC 402.
(2) The case of Suhrab v. State reported in 2001 PCr.LJ 366 (Karachi).
(3) The case of Ch. Javaid Riaz v. State reported in 2007 PCr.LJ 1332 (Lahore).
8. ' Mr. Bahadur Ali Baloch, learned State counsel opposed the grant of bail and adopted the arguments advance by the learned counsel for the complainant.
9. ' I have heard the learned counsel for the parries and have gone through the material available on record and the case-law relied upon by the respective parties.
10. ' It is an admitted fact that in the F.I.R. Complainant named applicant No,1 and co-accused Yousif Peti-Wala, one unknown person and Muhammad Ali son of Taj Muhammad Police constable and his associates. For unknown accused, complainant stated that he would be identified again on seeing, came on motorcycle, who were armed with T.T. Pistols and made straight fire upon the deceased Gulzar Ahmed, who succumbed to the injury.
11. ' No doubt, there are general allegations levelled against the accused named and unknown in the F.I.R. Who while forming unlawful assembly committed the murder of deceased Gulzar Ahmed. The conduct of the applicants shows that if they were innocent, they should have immediately surrendered before the police and lead evidence in their defence, but they chosen to remain absconders and after acquittal of co-accused, surrendered before the trial Court. From this it appears reasonable grounds about their participation in the commission of offence. It is day light incident where deceased was allegedly killed by the accused. The contention of learned counsel that the appeal against acquittal has been filed and it is not expected that within how much period the same will be decided, therefore, the accused/applicants cannot be detained in custody for indefinite period without trial. The contention of learned counsel for the applicant is that since co- accused has been acquitted, therefore, the applicants are entitled for bail. In my humble view in this case the acquittal has been challenged before this Court, which is fixed for Regular Hearing.
12. With due respect and regard, I do not find any relevancy to the case-law relied upon by the learned counsel for the applicants, as the case of present applicants is on different footings, from the case in hand, while the case-law relied upon by the learned counsel for the complainant are relevant to the facts and circumstances of the present case. In the similar circumstances, the Honourable apex Court in the reported case of Awal Gul (Supra) observed 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."
13. ' For what has been discussed above, I come to the conclusion that prima facie, the applicants have not made out a case for grant of bail, therefore, the application is dismissed. However, in the interest of justice and for speedy trial of the case, as the applicants are in custody, I order that the office should return back the original record and proceedings called in Criminal Acquittal Appeal No,197 of 2004 after keeping Photostat copies of relevant record of the trial Court and the learned trial Court is directed to decide the case expeditiously without further delay in the trial.
14. ' The observations made above are tentative in nature and the learned trial Court will not be influenced by the same while deciding the case. 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.