1. ' This case has been referred to me as a 3rd Judge after my learned brother Nasim Hussain Siddiqui, J. While deciding this bail application, sitting in Division Bench passed an order on 24-4- 1996 granting bail to the applicant and my learned brother Hamid Ali Mirza, J. The second Member of the D.B. Differed with the opinion of Mr. Nazim Hussain Siddiqui, J. And rejected the bail application of the applicant. I had the privilege of going through the two judgments, and have also heard the learned counsel.
2. ' The facts of the case are elaborately mentioned in the two judgments and need not be reproduced in this order.
3. ' In this case co-accsued Dr. Farooq Sattar, M.P.A, Muhammad Haroon Siddiqui, M.P.A, S.M.
4. Mohiuddin, M.P.A, Dr. Saghir Ahmed, M.P.A, and Waseem Akhtar, M.P.A. Had been granted bail by the trial Court. My learned brother Nazim Hussain Siddiqui, J. Granted bail to the applicant on the principle of consistency holding that the case of the applicant is similar to the case of the 5 M.P.As.
5. Who have been granted bail by the trial Court. My learned brother Hamid Ali Mirza, J., however, did not agree and has in his judgment held that the rule of consistency in the present case would not be available to the present applicant as the co-accused, M.P.As. Who had been granted bail by the trial Court were not named in the F.I.R. While the present applicant was named in the F.I.R. The second consideration on which my learned brother Hamid Ali Mirza, J. Has dismissed the bail application was the circumstances that applicant had been absconding for 15 months and had not joined the investigation. As far as the finding of my learned brother that the principle of consistency was not attracted in this case, I agree with him, but his opinion in not allowing bail to the applicant on the ground of his absconsion is not subscribed by me.
6. ' While hearing the arguments of the learned counsel reference was made to the 161, Cr.P.C.
7. Statements as well as the contents of the F.I.R. As per F.I.R. On 1-5-1994 on a strike call given by M.Q.M. Officials, in defiance of the order under section 144, Cr.P.C. Strike was observed. M.Q.M., M.P.As. Had assembled at 90 and had drawn a plan on account of which law and order situation was created. Sophisticated weapons were used and properties were set on fire. The culprits also attacked the police and, one of the policemen by name Nadeem who was driving a police mobile, received injuries when the wind screen of the vehicle was smashed by firing. Nadeem was injured by the splinters of the wind screen. 4 persons were arrested, they were Muhammad Kamran, Abdul Rahim, Muhammad Saghir and Shahzad Alain. The present applicant alongwith others namely Aslam Sabzwari, Rashid Sabzwari, Muhammad Kamran, Muhammad Fruitwala, Abdul Rahim, Murtaza, Faisal, Suleman, Nadeem Gulfarosh (the applicant), Haroon Ikhlaq, Ibrar Langra. Ibrar Nata, Akhtar, Kamil, Anjum and some 250/300 other persons had caused damage to a utility store and took away the articles and caused other damage at different places. The 161, Cr.P.C.
8. Statements of Police Constable Nadeem as well as the other eye-witnesses including A.S.I. Malik M.
9. Akram and A.S.I. Suleman Waheed, were recorded. The present applicant has not been assigned A the specific role of having caused the particular damage or used a particular weapon or damaged the particular property.
10. ' The role assigned to the M.P.As. In the F.I.R.Was that they had planned to cause the damage to the properties and cause firing on the policemen and vehicles, through their activists. Therefore. I am clear in my mind that the role assigned to the M.P.As. Is not similar to the one assigned to the present applicant in the prosecution story. Therefore, I do not find myself in agreement with the opinion of my learned brother Nazim Hussain Siddiqui, J. That the rule of consistency is attracted.
11. However, at the same time I find that the applicant is entitled to be released on bail on a different ground i,e, case against him requires further inquiry as to find out his participation in the alleged crime as according to the witnesses they had learnt about the name of the applicant to be one of the miscreants, who were causing the fire and damage, after the 4 persons were arrested on the day of incident. Apparently the eye-witnesses have to come out with clear statement in the Court as to who identified the applicant and how they received his name which factor is the one which requires further inquiry. I, therefore, find that the applicant is entitled to be released on bail on the same terms which have been set forth in the order of my learned brother Nazim Hussain Siddiqui. J.
12. ' In view of the fact that I had held this case to be of further inquiry I need not go further to discuss the cases relied upon by my learned brother Hamid Ali Mirza, J. As he has found the applicant vicariously liable for the offence. Since the participation of the applicant requires further inquiry the vicarious liability will be subservient to such finding after the further inquiry. Lastly, my learned brother Hamid Ali Mirza, J. Has relied. Upon a circumstance of the absconsion of the applicant. It is now well-settled principle of law that if otherwise the applicant is found entitled to be released on bail, this facility shall not be withheld merely because of the absconsion. Besides, in this case it has not been shown that the applicant has been declared as proclaimed offender. Unless such action is taken, abscondence could not be said to come in the way of grant of bail to the applicant if he is otherwise found entitled to such concession. Consequently as a result of going through the two judgments and hearing arguments of the learned counsel and going through the investigation record, I find the applicant to be entitled to bail and. Therefore, support the conclusion arrived at by my learned brother Nazim Hussain Siddiqui, J. And disagree with the conclusion of my learned brother Hamid Ali Mirza, J.