1. ' SYED SHAFQAT ALI SHAH MASOOMI, J.---The applicant has challenged the order of the learned Ist Additional Sessions Judge: Shikarpur. Dated 23-2-2009, whereby the applicant has been declined bail, in case/Crime No,62 of 2006, registered with Police Station Jaggan Hamayoon for offences punishable under sections 302, 148, 149 P.P.C.
2. ' The facts of the case as per F.I.R are that, complainant Mst. Durnaz lodged report with Police Station Jaggan Hamayoon on 9-9-2006, alleging therein that there was enmity between them, Kambrani, Chandia, Issani and Marfani communities and so many from both sides have been murdered due to such enmity. She has further alleged in the F.I.R. That on the fateful day she along with her son Imam Bux alias Amiro, her sister Mst. Bashiran and Mst. Jeevan were going to village Jaggan, when they reached near land of Nawab Khan Bhayo, they saw from the lands accused Deval and forty others including present applicant duly armed with kalashnikovs and rifles. The complainant has further alleged in the F.I.R. That accused Deval instigated other that complainant party had 'committed murder of their persons, therefore they may be murdered; on which co- accused Ahmed fired from his kalashnikov at son of complainant, namely, Imam Bux alias Amiro, who on receipt of fire by raising cry fell down then all the accused fled away towards western directions along with respective weapons. Imam Bux died on the spot. The complainant then went to police station and lodged report to the above effect.
3. ' Learned counsel for the applicant contended that there are 41-accused persons nominated in the F.I.R. And specific role has been assigned to co-accused Deval on whose instigation other co- accused Ahmed fired upon deceased. He further contended that applicant voluntarily appeared before learned 1st Additional Sessions Judge, Shikarpur for pre-arrest bail and was granted interim pre-arrest bail on 3-1-2009 and later on same order was re-called and the applicant was taken into custody and remanded to District Jail Shikarpur. It shows that the applicant voluntarily surrendered before the court of law.
4. ' Learned State counsel conceded to the grant of bail to applicant/accused.
5. There is about 14-1/2 hours delay in lodging of the F.I.R. Whereas distance between place of incident and the police station is only 15-kilometers. No specific role has been assigned to the applicant in the F.I.R. That he fired upon deceased. However, specific role has been attributed to co-accused Deval who instigated other co-accused to kill deceased and thereafter the co-accused Ahmed fired from his kalashnikov upon deceased resulting into his death. The postmortem report of deceased also discloses that he sustained only one injury on his person. The plea taken by learned trial Court while declining bail to applicant that he remained fugitive from law; it is suffice to say that no proceedings under section 87 and 88 Cr.P.0 have been initiated and the applicant has not been declared as proclaimed offender; on the contrary record shows that the applicant voluntarily appeared before court with an application for grant of pre arrest bail. It is well-settled principle of law that when on merits the applicants have a good case, the abscondence alone should not come in the way of grant of bail. No doubt a fugitive from law loses some of his rights, but he does not lose the right of bail forever. Moreover, co-accused Shahzado son of Siddique has been granted bail on 1-4-2008, by the learned 1st Additional Sessions Judge, Shikarpur, vide Criminal Bail Application No,577 of 2008, whose name transpired in F.I.R. At serial No, 13.
6. ' In the circumstances, when no overt act has been ascribed to applicant; fatal shot was attributed to co-accused Ahmed and question of vicarious liability of applicant would be determined at the stage of trial; the case of applicant thus requires further enquiry as contemplated by section 497 subsection (2), Cr.P.C. Accordingly applicant is admitted to bail on his furnishing solvent surety in the sum of Rs, 200,000 (Rupees two lacs) and P.R. Bond in the like amount to the satisfaction of trial Court.
7. ' However, the observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case.