1. ' SHAHID ANWAR BAJWA, F.I.R. No.107 of 2002 was recorded at Police Station Thull District Jacobabad on 11-8-2002. It was stated by the complainant that they had family dispute with Zaman Buriro (father of the present applicant) and others. On the fateful day the complainant along with his nephew and two relatives including relative Muharam had gone together with tractor to their fields.
2. They were busy plying the tractor when a group of 8 persons including the present applicant ,armed with guns came. Accused Zaiban gave a proverbial hakal, Zaiban fired with his K.K at Ghulam Abbas. Present applicant fired from his K.K at Muharam and two other co-accused fired at Fida Hussain. All three were injured. Fida Hussain and Ghulam Abbas expired while Muharam sustained injuries. Present applicant remained absconder and was arrested in December, 2010, according to the applicant's counsel on 31st and according to the State Counsel on 1st but that does not make any difference.
3. ' Learned counsel for the applicant submitted that allegations against the applicant is that he fired at Muharam and Muharam has been shown as injured in his feet and therefore, applicant did not fire at any vital part of body of Muharam. Learned counsel next submitted that co-accused Ali Murad who is alleged to have murdered Fida Hussain has been acquitted by the trial Court vide judgment dated 1-14(sic)-2010 and therefore, the present applicant is entitled to bail. Learned State counsel submitted that the applicant has been a fugitive from law for a period of about 8 years and is therefore, not entitled to bail. He relied upon Sher Ali alias Sher. v. The State (1998 SCM R 190).
4. Learned counsel further submitted that both the deceased gave dying declaration and therefore, there are strong reason to connect the present applicant with the alleged offence. He relied upon case of Jalaluddin v. The State (1996 M LD 204). Learned State Counsel further submitted that 7 empties of 7.6 mm as well as 30 empties of .12 bore were recovered. He submitted that after the present applicant surrendered challan has been filed and therefore, applicant should not be allowed bail at this stage.
5. ' I have considered submission made by the learned counsel and have also gone through the record. Learned State Counsel opposed the bail, on the ground, inter alia, that the applicant has been fugitive from law. He relied upon Sher Ali's case (supra). In Sher Ali's case the incident occurred in 1989. Atter the offence Sher Ali's absconded and when trial was concluded in 1991, Sher Ali surrendered and it was in this context that Supreme Court observed that a fugitive from law and courts loses some of normal fights under procedural law and also substantive law. Judgment of the Supreme Court is binding on me. However, the Supreme Court has not held that a fugitive from law, after he is arrested, is absolutely disentitled to grant of bail, as the learned counsel would like me to hold. What the Supreme Court has held is that he loses some of his rights. Therefore, in case a person has been fugitive from law for a long time, the Court dealing with that bail application must deal with it with a far greater degree of circumspection than is done in other cases.
6. ' It was argued by the learned counsel that co-accused Ali Murad who is alleged to have committed the murder has been acquitted by the trial Court. There are three reasons which prevailed with the trial Court in acquitting Ali Murad. Firstly the witness Muharam who is alleged to have been injured by the present applicant) was not produced by the prosecution. The second is in respect of the dying declaration and the trial court observed that they could not be considered in view of non-cross xamination. (I have failed to understand as to how the persons who gave dying declaration and died thereafter can be subjected to cross-examination) and secondly because such dying declarations were not made before any gazetted officer. Thirdly no other witnesses came forward to support the allegations. In case of the present applicant it is yet to be seen whether Muharam comes forward or is produced or not. Therefore, the fact that Ali Murad has been acquitted by the trial court is of no heap to case of the present applicant.
7. ' Contention of learned counsel for the applicant that allegation against him is that he fired at injured Muharam and injured him in his feet and therefore, since the injuries were not on any vital part of the body, he should be granted bail. It is true that if the injury is not on a vital part of the body, the courts normally look benevolently and take lenient view and frequently grant A bail.
8. However, in this case, applicant remained absconder for 8 years and in the words of Mr. Justice Ajmal Mian in Sher Ali's case (supra) accused has lost some of his rights. In such a situation circumspection comes in the arena.
9. ' Learned State Counsel has elaboratory argued that as many as 37 empties have been recovered and challan has been filed. The key witness appears to be Muhammad and I think interest of justice would be served if direction is given to the trial court to expeditiously proceed with the trial and decide the matter within two months.
10. ' With the above observation this application is dismissed.
11. ' Needless to observe that the trial Court while considering guilt or innocence of the present applicant shall not be, in any manner whatsoever, influenced by any of the observation made above.