1. ' IMAM BUX BALOCH, J.---The respondent No,1 Abdul Aziz was granted bail by learned Assistant Sessions Judge, Shandadkot vide order dated 6-9-2010. The complainant being aggrieved has approached this court for consideration of his bail.
2. ' Heard Mr.Mubashir Ali Solangi, counsel for the applicant/ complainant, Mr.Altaf Hussain Surahio, State Counsel and Mr.Sobhraj L.P., counsel for the respondent No,1.
3. ' Prosecution case according to the F.I.R. In brief is that Haji Ahmed Mastoi has levelled allegation of karap against relative of complainant namely Gulsher, .Who is brother of Mir Muhammad. On the fateful day complainant along with his son Karim Bux, Abdullah and nephew Qurban son of Muhammad Qasim Mastoi and their relative Mir Muhammad son of Abdul Khaliq Mastoi went to Ghulam Muhiyuddin Shah for faisla. After that all the above persons returned back to their home and while on way, when they reached at Kotu Motu Chowk Shandadkot city at 11-00 a.m., accused Haji. Ahmed, his sons Muhammad Ishaq, Abdul Aziz (present applicant) and Abdullah as well as one unidentified person, who would be identified if seen, having pistols in their hands, were standing there. Haji Ahmed challenged and asked that brother of Mir Muhammad is their karo and they would not be spared today. Haji Ahmed and Muhammad Ishaq fired from their pistols upon Karim Bux who received firearm injuries and accused Abdul Aziz and Abdullah fired at Mir Muhammad who received injuries and fell down on the ground. All the accused decamped, from the scene of the offence towards eastern side. The complainant and his son Abdullah and nephew Qurban Ali noticed that Karim Bux received injuries at his right leg and Mir Muhammad had received injuries at his left shoulder and under the left nipple. He then took the injured to Taluka Hospital Shandadkot and after first aid the injured were referred to Larkana Hospital.
4. ' The complainant then went to Police Station and lodged the F. I. R.
5. ' After investigation, the case was challaned and the applicant was shown as absconder. Case was proceeded against Muhammad lshaq, Haji Ahmed and they had been acquitted by the learned trial Court vide judgment dated 23-2-2010. The complainant challenged the above judgment in Criminal Acquittal Appeal No,20 of 2010 which was allowed by this Court vide judgment dated 14-6- 2010.
6. ' The applicant was arrested on 18-6-2010 it is pertinent to mention here that offence has taken place on 20-8-2003 and the report was lodged by the complainant Allah Dino on the same date at 1600 hours.
7. ' Learned counsel for the applicant/complainant states that the respondent No,1 was a fugitive from law and he absconded himself for a period of more than six years without any plausible explanation. He submits that un explained and noticeable absconsion of respondent/ accused, disentitles him to concession of bail notwithstanding merits, of the case. He further submits that even on merits, the respondent No,1 has no case for grant of concession of bail. Learned counsel states that the F.I.R. Was promptly lodged without any delay and specific role was attributed against the respondent No,1 in the F.I.R. He has placed his reliance on the case of Rahim Bakhsh v.
8. Shahnawaz and another (2003 SCMR 1996) and case of Mst.Qudrat Bibi v. Muhammad Iqbal and another (2003 SCM R 68).
9. ' Mr. Altaf Hussain Surahio, learned State counsel supported the contentions raised by the counsel for the applicant/complainant. He further submits that respondent No,1 was absconder and he has not explained his unexplained and noticeable absconsion of more than six years. He further submits that only on the ground of absconsion the respondent No,1 has disentitled himself for concession of bail. He placed reliance on the case of Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) and the case of Awal Gul v. Zawar Khan and others (PLD 1984 SC 402).
10. ' On the other hand, Mr.Sobhraj L.P, counsel for the respondent No, 1 states that the respondent No,1 has explained his absconsion; that murder case Crime No,157 of 2004 was registered at Police Station Shandadkot by same complainant/applicant (Allah Dino) against him and others for the allegation of committing murder of son of complainant therefore, in such circumstances he concealed himself though the name of respondent No,1 was not mentioned in that F.I.R. He further submits that in the F.I.R., the respondent No,1 and accused Abdullah have been attributed role of causing firearm injuries to injured Mir Muhammad and specific injuries have not been attributed to the respondent No,1. He placed his reliance in the case of Mitho Pitafi v. The State (2009 SCM R 299) and sum-ups his arguments that the trial Court has rightly granted bail to the respondent No, 1.
11. ' I have considered the submissions advanced at the bar and have gone through the relevant record with the assistance of learned counsel for the parties.
12. ' Admittedly, respondent No,1 was absconder for a period of more than six years and he has not explained such noticeable abscondence. In the case of Muhammad Sadiq (Supra), it was observed by the honourable Supreme Court as under:-- "This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the Officer Incahrge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non- bailable offence'. Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of to him by the same provision."
13. ' It was further held as under:-- "But as regards the other question viz. The effect of abscondence of the accused for a period of six months on their right to obtain bail we feel that this question has not been given due attention by the learned Judge in his order. The effect of abscondence, as explained by this Court in its two recent judgments, is that the person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail notwithstanding the merits of his case, unless he can satisfactorily explain the period of his abscondence."
14. ' In the case of Awal Gul (Supra), it was observed as under:-- "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eyewitnesses 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 (1), Rao Qadeer Khan v. The State (2), Hayat Bakhsh and others .v. The State (3) and Kh.
15. Azhar Hussain and another v. The State (4). 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 principle 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)."
16. ' Learned counsel for the respondent No,1 has placed reliance on the case of Mitho Pitafi (Supra) in which the honourable Supreme Court has observed as under:- "According to F.I.R., neither any role has been attributed to the petitioner nor his presence has been shown at the time of occurrence. Vide order dated 18-2-2002, co- accused namely Jam Pitafi has been released on bail by the learned trial Court but the concession of bail was declined to the petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well settled principle of law that bail can be granted if an accused has good case for bail on merits and mere absconsion would not crime in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner."
17. ' In the case of Mitho Pitafi, no role was attributed to Mitho Pitafi and even his presence has not been shown at the time of occurrence. In such circumstances, the honourable Supreme Court has granted bail to him by observing that if an accused has good case for bail on merits, mere absconsion will not come on his way while granting bail.
18. ' In the instant case, the respondent No,1 has been attributed) specific role of causing injuries with a pistol to the injured Mir Muhammad and medical certificate supports the version of the complainant and the injured.
19. ' In my humble view, with due respect, case of Mitho Pitafi (Supra) has no application in the case in the facts and circumstances of the instant case. It is well-settled proposition of law that fugitive from law and court loses the normal rights granted by procedural and substantive law. Un- explained noticeable absconsion of the accused therefore, disentitle him for concession of bail even on merits, if he has a case for grant of bail.
20. ' Following dictum laid down in the cases of Muhammad Sadiq and Awal Gul (Supra), I am of the considered view that the trial Court has granted bail to the respondent No 1 without considering the law laid down by the honourable Supreme Court. Respondent No,1 is not entitled for concession of bail as he was a fugitive from law for more than six years. Consequently, the to the respondent No,1 by the trial Court is recalled. Respondent No,1 is present in Court, he is taken into custody and remanded to jail.. The trial Court is directed to expedite the case.
21. ' Criminal. Miscellaneous Application No,214 of 2010 stands disposed of.
22. Bail Cancelled.