1. ' F.I.R. No, 72 of 2006, was registered at Police Station Ahmed Pur District Khairpur on 9-6-2006 at 11- 45 hours for an incident alleged to have occurred on 10-30 hours, The complainant was one Allah DiNo, He stated in his complaint that he had murderous dispute with Sarwar Khandhiro and others, On the fateful day the complainant and his two sons had gone to a village for some work and while they were returning to their village they were waylaid by a group of 17 persons which included the present applicant. The group challenged them and told that they would not be spared. Thereafter it was stated in the complaint that Ghulam Sarwar (present applicant). Wahid Bux, Fazal Muhammad, Muhammad Maroof and Wazir directly fired with Kalashnikov and in consequence Shahmir son of the complainant received injuries. Other members of the assembly fired at the complainant and his other son who took shelter behind the water course and thus escaped injuries. On their hue and cries villagers came and on seeing them accused persons ran away.
2. When the complainant went to his injured son, he found that he had expired. Applicant remained an absconder for a period of three years and he was ultimately arrested on 23-3-2009. Bail application was filed before the Judge Anti Terrorism Court Khairpur which application was dismissed vide order, dated 16-9-2009 for the following reasons; "The perusal of case papers reveals that the name of the applicant/accused Ghulam Sarwar is mentioned in the F.I.R. With his overt act role played by him on the alleged day of incident along with other absconding accused persons. The F.I.R. Of the incident was lodged by the complainant promptly giving the full details of incident and identifying the accused that the present applicant/accused along with others being the member of unlawful assembly and in prosecution of their common object intentionally committed the murder of Shahmir with sophisticated weapons. The version of complainant is fully supported by all other witnesses who have also implicated the present applicant/accused so also others in the commission of offence in their respective 161 Cr.P.C. Statements. Not only this but the antecedent's reports of the accused has not come in has favour but the same are adverse against him. As per jail report he is involved in 20 (twenty) heinous criminal cases and as per police report he is very notorious dangerous criminal involved in the so many heinous crimes and may not be released on bail. The record also proves that the present accused after submission of challan had remained fugitive from law for a period of three years thus there appears reasonable grounds to believe that the accused is guilty of the alleged offence. Since the formalities against the absconding co-accused as provided under the ATA, 1979 have almost been completed and the case is now fixed for framing of the charge and the trial is likely to be concluded in near future, as the alleged offence is heinous one which carries the capital punishment and thus fully covered by the prohibition contained in section 497".
3. ' Learned counsel for the applicant submitted that thee other co-accused Fazal Muhammad, Muhammad Maroof and Wahid Bix had been granted bail by the same Judge vide order, dated 27- 3-2009. He submitted that in the F.I.R. Role assigned to the present applicant is identical to the role assigned to the three persons who had been granted bail by the same Judge on 27-3-2009 and therefore, on rule of consistency the applicant is entitled to bail. Learned counsel further submitted that mere absconsion cannot be a ground for refusal of bail. In this regard he relied on Mitho Pitafi v. The State 2009 SCM R 299. In this case the Supreme Court has noticed that no role had been attributed to the petitioner nor his presence had been shown at the time of occurrence. Co- accused had been released on bail but concession of bail was declined to the petitioner on the ground that he had been fugitive from the law. The Supreme Court thereafter observed that it is well-settled principle of law that bail can be granted if an accused has good case for grant of bail on merits and mere absconsion would not come in way granting the bail. Learned counsel further submitted that it is an admitted fact that there has been murderous enmity between the complainant and the accused persons.
4. ' Learned APG submitted that order of the Court below granting the bail to co-accused is not binding on the High Court. He further submitted that applicant/accused has been fully implicated and there is sufficient material available including empties recovered from the spot to connect the accused with the offence. He further submitted that since the accused remained absconding of three years therefore, he is not entitled to facility of bail.
5. We have considered the submissions made by the learned counsel for applicant and have gone through the record. In case of Fazal Muhammad, Muhammad Maroof and Wahid Bux the role attributed to them is exactly identical with the role attributed to the present applicant. In the F.I.R. 17 persons were alleged to have waylaid the complainant and his sons. In terms of the role stated in the F.I.R. These 17 persons can be categorized in two groups; firstly four named above who fired on Shahmir/who died because of the firing; and secondly other 13 who fired on complainant and his other son but the complainant and the other son escaped injuries. Role assailed to four persons on one hand is different and to 13 on the other hand is different. The learned Judge Anti-Terrorism Court Khairpur who first granted bail to Fazal Muhammad, Muhammad Maroof and Wahid Bux (belonging to first group stated above) vide order, dated 17-3-2009 in the concluding para observed as under:-- "I have very carefully considered the arguments of learned counsel for the applicants/accused with no objection of learned Special Public Prosecutor for State and perused the entire record of this case. I find that this is an admitted position that the murder of deceased Shah Mir Matelo who is the son of complainant was committed on account of previous recorded enmity between the applicants/accused and complainant party upon the matrimonial affairs, the contents of F.I.R.
6. Reveal that the allegations are of general nature and no specific role is attributed to any one as to who caused the fatal injury to the deceased and from the bare reading of the charge sheet it appears that 2 nominated co-accused persons in the F.I.R. Namely Budhal son of Ghulam Hyder and Hajan son of Swayo Kandhro, were let off by police during investigation. From this case/crime on the ground that no any iota of evidence is emanated in this case against the above let-off accused, the case of applicants/accused Latif Dino, Liaqat Ali, Muhammad Alam and Hussain Bux who have been granted bail by Honourable High Court of Sindh, Bench at Sukkur, vide order, dated 15-8-2007, hence, the applicants/accused have made out their case for grant of bail".
7. A bare reading of the above would indicate that learned Judge below relied upon bail granting order of this Court to Latif Dino, Liaqat Ali, Muhammad Alam and Hussain Bux and observed that the case is at par with that case of Fazal Muhammad, Muhammad Maroof and Wahid Bux. In our opinion the learned Court fell in error in reading this conclusion. Whereas Fazal Muhammad etc. Belonged to the first group i.e, those who had fired at Shahmir, Latif Dino etc. Fired on the complainant and his son and their case was of ineffective firing. Therefore the role of two groups is not at par with each other. It was probably because of this mis-reading of record that the learned Judge observed in his concluding para that allegation were of general nature and no specific role had been attributed to Fazal Muhammad etc. There was specific role attributed to Fazal Muhammad etc in that three persons i.e, Fazal Muhammad, Muhammad Maroof and Wahid Bux and present applicant were alleged to have directly fired at Shahmir resulting in his death. Since the order, dated 27-3-2009 passed by the learned Judge Anti-Terrorism Court appears to be based on mis-reading it cannot help case of present applicant on the principle of consistency. It may be noted that bail application of the present applicant has been dismissed by the same Judge vide order, dated 16-9-2009.
8. ' It is settled law that the person who is named in the F.I.R. And to whom definite role is attributed of being armed with deadly weapons and having caused injuries to deceased would not be entitled to facility of bail. If any authority is needed reference may be made to the case of Zafar Iqbal v.
9. Muhammad Ilyas and another 2006 SCM R 150.
10. Reliance by learned counsel for applicant upon Mitho Pitafi's case (Supra), does not help him. There is no cavil with the proposition that if case on merit is made out mere absconsion cannot be a ground for refusal of bail, but in the Mitho Pitafi's case no role had been attributed to the petitioner nor his presence had been shown at the time of occurrence Case of the present applicant is therefore, clearly distinguishable.
11. ' Learned APG is correct in saying that prima facie there is sufficient material available to connect the present applicant with the offence under section 302, P.P.C.
12. ' For the above reasons, this bail application is dismissed.