1. ' SYED HASAN AZHAR RIZVI, J.---By this order I would decide the Bail Application filed by the applicant/accused Rashid Bhutti after dismissal of his Bail Application by the 1st Additional Sessions Judge, Karachi-South in Sessions Case No,55 of 2005 on 22-6-2011.
2. ' Brief facts of the case are that on 25-10-2004 F.I.R. No,249 of 2004 under sections 302/324/34, P.P.C.
3. Was registered at Police Station Darakhshan, Karachi by one Mukhtar Ahmed, whereby it was stated that on 24-10-2004 information was received vide Report. No,25 in daily diary dated 24-10- 2004 from MLO, Jinnab Hospital, Karachi. Police reached at the hospital at 1-10 hours on 25-10-2004 recorded statement of Mukhtar Ahmed under section 154, Cr.P.C., wherein he stated that he is resident of Kandhkot and on that date he was at his home at about 10-00 p.m. One Abdul Shakoor a friend of his son Ghulam Rasool alias Raja brought his son Ghulam Rasool alias Raja in injured condition at home and informed that at the crossing of Khayaban-e-Shamsheet and Khayaban- e-Shujaat one VTI Black Colour and one white Alto cars blocked their car. From' the aforesaid two cars eight. Persons alighted with TT pistols and other ammunitions, abused them as to why they fought with Imran Zahry, Abdul Shakool and Ghulam Rasool were alone at that time therefore, they tried to speed away their car but the persons chasing them in two cars started firing from backside as a result thereof Ghulam Rasool received bullet injury. After providing first aid they took injured to South City Hospital and thereafter, while shifting him to Jinnah hospital in the way he succumbed to the injury. Persons who were firing, were known to Abdul Shakoor Kaker. Claim of the complainant was against eight persons who fired on his son Ghulam Rasool and who was injured and then expired due to fire arm injury.
4. ' After registiation of the case on 29-10-2004 accused Muhammad Faisal son of Muhammad Ahmed was arrested in the case, who disclosed names of the applicant and other co-accused.
5. Said accused Faisal was identified by the eye-witness Abdul Shakoor Kaker before Xth Judicial Magistrate. On 11-1-2005 statement under section 164 Cr.P.C. Of eye-witness Abdul Shakoor Kaker was recorded. Charge-sheet was submitted on 5-1-2005 wherein the applicant/accused was shown in Column-II of the charge-sheet beside other accused, which includes brother of the applicant Rashid Bhutti residents of Badar Commercial, Duryabad, Khuda Market. After complying with the usual formalities the Tfial Court declared the applicant as proclaimed offender, started trial and recorded statement of prosecution witnesses.
6. ' Applicant/accused was arrested on 15-4-2011 on the pointation of the complainant and then on 16-4-2011 he was remanded to judicial custody. Applicant/ accused filed bail application on 5-5- 2011 before the trial Court, which was dismissed on 22-6-2011.
7. ' Learned counsel for the applicant/ accused argued that the applicant/accused is innocent, no evidence is available against him to connect him with the commission of the alleged offence.
8. Neither the name of the applicant/accused is mentioned in the F.I.R. Nor any role has been assigned to him, only on the belated statement of the complainant, who was not eye-witness F.I.R..Was lodged and on the statement of co-accused Faisal present applicant/accused has been implicated in the case and his name has been mentioned in Column-II of the charge-sheet. It was further argued that in the challan no address of the applicant has been mentioned and during proceeding of declaring the applicant/accused as absconder the applicant was in Dubai. Learned counsel for the applicant urged that on mere absconsion the bail cannot be refused, if the accused has good case of bail on merits. He has relied upon the following judgments:--
(1) 2007 PCr.LJ 1497.
(2) 2007 PCr.LJ 1631.
(3) NLR 1995 Criminal 421.
(4) 2008 PCr.LJ 135.
(5) 2004 PCr.LJ 35.
(6) 2001 PCr.LJ 577.
(8) 2009 PCr.LJ 1101.
(9) 1991 SCM R 322.
(10) 1992 SCRM 2088.
(11) 1978 PCr.LJ 176.
(12) 2007 M LD 242.
(13) 1994 PCr.LJ 508.
(14) 2003 YLR 1263.
(15) 1964 PLD West Pakistan 303.
(16) 2007 M LD 444.
9. ' Ms. Seemi Zaidi learned A.P.-G. And Mr. Umer Awan learned counsel for the complainant have vehemently, opposed the grant of bail application to the applicant/accused and submitted that at the time of commission of the offence the applicant was present in Karachi and he absconded thereafter in order to save himself from his arrest in the criminal case. Applicant remained absconder for about six and half years. They further contended that the applicant was arrested on the pointation of the eye-witness of the case namely Abdul Shakoor Kaker. Learned A.P.-G. Further submits that the complete address of the applicant is mentioned in the charge-sheet, proceeding for declaring the applicant absconder were initiated in accordance with law and in order to hide himself from the clutches of law the applicant remained absconded for more than six and half years, They relied upon 2011 PCr.LJ 996 (Muhammad Yaqub v. The State).
10. ' I have heard learned counsel for the applicant Mr. Mushtaq Ahmed Jalalvi, counsel for the complainant Mr. Umer Awan, learned A.P.-G. Ms. Seemi Zaidi and perused the record with their assistance.
11. Trial Court has observed in its order that the prosecution had produced copy of identification memo before the Trial Court, which shows that the eyewitnesses namely Abdul Shakoor Kaker son of Ubaidullah and Yousuf Ali son of Muhammad Bux Khan had identified the applicant Rashid Butti son of Ibrahim Bhutti during identification parade. As per ground "H" of the present Bail Application the applicant was in Dubai from 2005 to 2009, this fact establishes that at the time of incident on 24-10-2004 the applicant/ accused was in Pakistan. Offence committed is heinous one and comes within the prohibitory clause, Bail was granted to co-accused Faisal on the medical ground while the case of the accused Rashid Bhutti is on different footing, hence case law cited by the learned counsel for the applicant, the grounds taken by him in the present bail application and the arguments advanced by the learned counsel before this Court are absolutely different as that of other co-accused. Applicant/accused remained fugitive from law and was declared absconder though does not lose his right to bail but the Court considering bail application of an absconder has to act with a much greater degree of circumspection.
12. ' Above are the reasons of my short order dated 25-11-2011 whereby the bail application of the applicant was dismissed. However, I hereby direct the trial Court to frame charge upon applicant/accused within two weeks from receipt of this order and at least within one month time from receipt of this order at least record evidence of eyewitness Abdul Shakoor Kaker, thereafter, applicant/accused may move fresh basil application before the trial Court, if so desired/advised.