1. By this common order, I propose to dispose two Criminal Miscellaneous Applications Nos. 213/86 and 243/86 and one Criminal Bail Application No.224/86, as all the three applications relate to the accused who are facing trial in the same case.
2. Accused Sakhi Sultan was granted bail by me by order, dated 13-10-1985. By Criminal Miscellaneous Application No.213/86, complainant Abdul Ghaffar has sought cancellation of bail allowed to him. The accused Altaf Hussain and Aslam were released on bail by is Additional Sessions Judge, South, Karachi, vide his order dated 10-11-1985. The Complainant has moved Criminal Miscellaneous Application No.243/86 for cancellation of their bail. The accused Hanif Shah was refused bail in the lower court as per order, dated 5-2-1986. Criminal Bail Application No.224/86 has been made on his behalf for grant of bail to him.
3. I have heard the arguments addressed at the Bar and have also considered the authorities cited by the learned counsel for the parties in support of their submissions.
4. As for accused Sakhi Sultan it was contended by the learned counsel for the complainant that plea of alibi raised on his behalf was false and that the entries in the Duty Card in respect of the relevant date was tampered with. He further submitted that the said accused was dismissed owing to his long absence from duty. Accordingly, the learned counsel argued, the plea of alibi should not be taken into consideration while deciding bail application made on behalf of the above accused.
5. Admittedly the long absence which constituted the basis of dismissal of the accused did not include the date of the occurrence and as such his dismissal has no relevance for the purpose of bail. So far tampering of the duty card is concerned, it goes without saying that no departmental inquiry was made to establish the liability of making such tampering. Unless that is done the accused could not be held responsible, for the alleged tampering. Further moreover, while certifying the accused's presence or, duty on the day of incident the competent authority does not seem to have attached any significance to the alleged tampering, Above all this it is admitted by the learned counsel for the complainant that the accused's dismissal has since been set aside and he has been reinstated in service.
6. For above reasons, I am not impressed by the arguments that the plea of alibi taken by the accused Sakhi Sultan was totally devoid of truth. However, it would be open to the trial Court to make necessary probe into the plea of alibi and come to its own conclusion.
7. Apart from above, the application for cancellation of bail has not been moved on behalf of the State nor the learned A.A.-G. Supports the complainant's application which too has been made after delay of four months and no explanation is forthcoming for the delay. There is no indication that the accused has in any way abused the concession of bail allowed to him. In such circumstances superior Courts have been of the view that private party cannot be permitted to seek cancellation of bail at his whim.
8. The learned counsel for the complainant has relied upon two authorities namely Shah Muhammad etc. v. The State 1979 SCM R 101 and Hakim Ali and 3 others v. The State 1979 SCM R 114. I have considered these authorities which, are clearly distinguishable as the facts of the reported cases are not identical to the facts of the case in hand.
9. For above reasons I see no justification to cancel the bail of accused Sakhi Sultan. Therefore, the Criminal Miscellaneous Application No.213/86 is dismissed.
10. Coming to the case of co-accused Altaf Hussain and Aslam, it was submitted by the learned counsel for the Complainant that while granting bail to the said two accused the learned lower Court did not take into consideration the absconsion of accused Altaf for six to eight months and that of accused Muhammad Aslam for 13/14 days. It was also argued by him that the case of these two accused was not identical to that of co-accused Sakhi Sultan and as such bail granted to them was wrong.
11. So far the alleged absconsion of accused Altaf is concerned, it is not denied that this accused had remained absent from duty and for that reason he was not only pled under suspension but also departmental inquiry was made against him. However, he was ultimately absolved of the charge of unauthorised absence and was reinstated in service. The fact that this accused who is a police Head Constable was allowed to resume duty shows that the authorities concerned were prima facie convinced that, his absence was not unjustified. Therefore, for the purpose of bail, he cannot be regarded to have absconded. Moreover, there is no indication that he was declared a absconder under the relevant law. In this connection reference may be made to the case of Rab Nawaz v. The State PLD 1976 Lah. 1240 wherein it was held that absconsion of the accused is to be proved by the prosecution by positive evidence and that a person can legally be said to have absconded only after obtaining proclamation under section 87, or section 88, Cr.P.C. The authority reported as Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 which is relied upon by the learned counsel for the complainant is of no help to him, as there is no prima facie evidence of abscondence of the accused in the instant case. However, the trial Court may probe into this question at the time of trial and come to its own conclusion. Similarly, there is hardly any evidence of abscondence against the accused Muhammad Aslam.
12. Even on merits of the case it may be observed that fatal injury caused to the deceased has not been attributed to either of these accused. The learned counsel for the accused has referred to the case of Aziz @ Abdul Aziz PLD 1985 Kar.
27. This is a D.B. Decision. In this case it was held: "It may generally be laid down that under the following circumstances, the case would call for further inquiry provided that the Judge/ Magistrate is, on consideration of all the facts of the case first, of the opinion that there are no reasonable grounds for pleading that the accused has committed a non-bailable offence; (i)When out of several accused only one is said to have caused fatal injury and the question is whether the co-accused had common intention with the person to whom the fatal injury had been attributed, in other words whether the co-accused are vicariously liable for the act committed by the main accused; (ii)
13. (i.e)
14. (iv)
15. (v)
16. (vi)
17. (vii)
18. As has been pointed out above, the fatal injury has not been attributed either to accused Altaf Hussain or to Muhammad Aslam. It is yet to be determined if they shared common intention with the co-accused who had caused the said injury. Even otherwise, the order of the trial Court, is neither perverse nor unreasonable to call for any interference by this Court.
19. For above reasons, the Criminal Miscellaneous Application No.243/86 is dismissed.
20. The case of Hanif Shah stands on different footing. It is clear from the order of lower Court that solitary injury discovered on the person of deceased Abdul Sattar has been attributed to this accused. It is true that no such attribution finds mention in the F.I.R. However, almost all the witnesses have stated in their police statements that the fatal injury was caused to the deceased by accused Hanif Shah. According to them this accused was armed with revolver at the time of occurrence. According to prosecution case revolver was recovered from possession of accused Hanif Shah. It is further disclosed in the ballistic report that empty bullet was fired from the revolver recovered from the said accused. The medical evidence also shows that the injury found on the person of the deceased was caused with bullet.
21. For the above reasons, I am of the view that there are reasonable grounds for believing that the accused Hanif Shah inflicted fatal injury to the deceased. Accordingly, he is not entitled to bail. The learned trial Court has, therefore, rightly refused bail to him. I see no reason to interfere with the order of the lower Court. Accordingly, the bail application of accused Hanif Shah is dismissed.