1. ' This bail application has been moved on behalf of accused Bulando who is facing trial for an offence punishable under section 302, P.P.C. Read with sections 148 and 149, P.P.C.
2. ' The brief facts of the case are that complainant Suleman lodged report at Police Station Hala on 21-3-1992 and about 8-00 p.m. Stating therein that he alongwith his relatives deceased Attur, Sher, Sain Bux and Wasaro were returning from Ghotanki forest and at about 6-00 p.m. When they reached Achi Masjid near a hut, they were fired upon from their backside on which Attur received one bullet injury. Complainant and his companions took shelter and recognized the accused persons as Razo, Khadim, Gul Sher, above accused Bulando and 4/5 others. He further stated that accused/applicant Bulando was armed with rifle while Razo and Gul Sher were armed with klashnikovs and the unidentified persons who were armed with guns and they made good their escape, whereafter the complainant party went near Attur and found that he has, sustained injury on the left side of his head and brain had come out resulting in his death. Complainant Suleman leaving his companions to guard the dead body to Police Station Hala and lodged the above F.I.R.
3. Wherein he specifically mentioned that on account of old enmity existing between the complainant party and the accused persons leading to several murders in the past, the applicant/accused Bulando alongwith other accused persons formed an unlawful assembly with the object of causing the death of his cousin Attur.
4. On the basis of the aforesaid F.I.R. Investigation was undertaken by the police personnel of Police Station Hala. Police could not locate or catch hold of the accused persons except Razo, who was arrested on 25-10-1992 and a challan was submitted in the Special Court No,I, constituted under the Suppression of Terrorists Activities Act, Hyderabad wherein all others involved in the aforesaid incident were shown as absconders including the applicant/accused Bulando. The trial Court after resorting to appropriate proceedings ordered the case to proceed against accused Razo while orders were passed under section 512, Cr.P.C. With regard to the applicant/accused Bulando and other absconding accused. Subsequently, accused/applicant Bulando was arrested by the police on 1-6-1996 and was produced before the Special Court No,I constituted under the Suppression of Terrorists Activities Act, Hyderabad. The said Court by its judgment, dated 11-1-1996 have found accused Razo to be guilty of the offence of murder of deceased Attur and has sentenced him to imprisonment for life and a fine of Rs,1,00,000. A bail application was moved on behalf of applicant/accused Bulando in the trial Court but the same was dismissed'vide order, dated 21-10- 1996 on the grounds that the prosecution evidence recorded during the trial of co-accused Razo, on which the prosecution would be relying for proving the guilt of accused/applicant Bulando, prima facie connected him with the offence of murder of deceased Attur; and secondly, that the accused had intentionally and deliberately avoided to submit himself to the authority of the law and remained absconder for a period of about four years. Hence this bail application.
5. ' We have heard the arguments of Mr. Qurban Ali Chohan, counsel for the applicant/accused Bulando and Mr. Ghulam Shabbir Memon, Advocate appearing on behalf of the A.A.-G. For the State. We have also perused the relevant provisions of law as well as the case-law relied upon by the learned counsel for the parties.
6. ' The first ground urged by Mr. Qurban All Chohan in support of the bail application is that out of the three eye-witnesses examined during the course of trial of co-accused Razo, none of them has made any specific allegation and has not assigned any overt act to applicant/accused Bulando.
7. He further submitted that the evidence of all the three eye-witnesses namely, complainant Suleman, P.W.2 Wasaro and P.W.3 Sher Muhammad is to the effect that while returning from Ghotanki forest they were fired upon from behind and that the firing was made by accused Razo from his klashnikov on the basis of which it could not be said that there existed reasonable ground to believe that the accused/applicant is guilty of an offence punishable with death, imprisonment for life or ten years so as to disentitle him from being enlarged on bail and referred to us to the cases of; (i) The State v. Aziz alias Abdul Aziz reported in PLD 1985 Kar. 27; (ii) Muhammad Sadiq and another v. The State reported in 1996 SCM R 1654 and (iii) Abdul Aziz v. The State reported in 1996 SCM R 1693.The contention advanced by the learned counsel for the applicant/accused carry weight and merit consideration. On examination of the evidence of the eye-witnesses it is to be found that P.W.1 complainant Suleman had made a general sweeping allegation that on looking back he saw that all the accused persons alongwith applicant/accused Bulando were firing at them but then in the latter portion of his evidence he specifically stated that the firing was made by accused Razo from his klashnikov. A similar statement was made by P.W.3 Sher Muhammad who specifically stated that accused Razo armed with klashnikov had fired at deceased Attur. P.W.2 Wasaro denied the prosecution version of being present at the place of incident alongwith the complainant and other P.Ws. When he stated in his evidence that he was not with the complainant and deceased Attur at the time of incident and had not seen the incident. The statements of the prosecution witnesses appear to be in line-and consistent with the circumstances of the case wherein only one person had received fire-arm injury, which would appear to be rather improbable if firing had been made by five persons. Apart from the fact that only one person had received injury, it is also pertinent to note that one person had received only one fire-arm injury which fact is substantiated by the medical evidence. Thus, the medical evidence is also consistent and supports the ocular testimony of firing having been made by only one person.
8. ' Mr. Ghulam Shabbir Memon, the State Counsel submitted that P.W.1 complainant Suleman had specifically stated that firing was made by all the five accused persons which included accused/applicant Bulando and, therefore; it could not be said that the accused/applicant was not guilty of having committed any overt act or having participated in the aforesaid crime. This contention of the State Counsel is devoid of force in view of the evidence of the prosecution witnesses including complainant Suleman specifically alleging the firing against co-accused Razo.
9. ' The facts discussed above point out that the matter requires further enquiry for prima facie connecting the accused/applicant with the offence with which he has been charged in view of the pronouncement/observations made in the cases of: (i) The State v. Aziz alias Abdul Aziz PLD 1985 Kar. 27; (ii) Muhammad Sadiq and another v. The State 1996 SCM R 1654; and (iii) Abdul Aziz v. The State 1996 SCM R 1693.
10. ' The next ground urged by Mr. Qurban Ali Chohan, learned counsel for the applicant/accused Bulando is that he had no knowledge of having been nominated as an accused in the challan submitted in pursuance to the F.I.R. Lodged by complainant Suleman regarding the murder of his cousin deceased Attur as a result of which he did not make any appearance before the trial Court.
11. He vehemently controverted the allegation of the prosecution that he had been intentionally and deliberately avoiding to present himself or to appear before the trial Court to face the offence of having caused the murder of deceased Attur in prosecution of the common object of the unlawful assembly. To support his above contention of Mr. Qurban Ali Chohan further submitted that the accused/applicant was in police custody from November, 1992 and he used to be produced in the Court of the 1st Assistant Sessions Judge, Hyderabad, in Sessions Case No,11 of 1986, but was never taken to the Special Court No,1 constituted under the Suppression of Terrorists Activities Act, Hyderabad, to face trial in the aforesaid sessions case and the failure of the accused/applicant to appear or present himself before the trial Court could not be assigned to him. Mr. Qurban Ali Chohan further submitted that there is no law which bars the grant of bail to an absconder and further submitted that mere absconsion, even if it is proved, would not be a ground for refusing bail in cases where the accused/applicant does not prima facie stand connected with the offence charged with. In support of his above contention Mr. Qurban Ali Chohan referred us to the cases of;
(i) Ibrahim v. Hayat Gul and others reported in 1985 SCM R 382; (ii) Jam Sadiq Ali v. The State reported in 1989 PCr.LJ 1910; (iii) The State v. Malik Mukhtar Ahmed Awan reported in 1991 SCM R 322; and (iv) Liaquat Ali v. The State reported in 1991 PCr.LJ 1283.
12. ' Mr. Ghulam Shabbir Memon, the State Counsel submitted that the accused/applicant was enlarged on bail vide order, dated 1-4-1993 and was released as is evident from the diary, dated 24-4-1993 of the 1st Assistant Sessions Judge, Hyderabad, in Sessions Case No,11 of 1986. He further submitted that having been enlarged on bail there was no stopping accused/applicant Bulando from presenting or appearing before the trial Court in the aforesaid case inasmuch as the contention advanced on his behalf that he had no knowledge of his having been nominated as one of the accused in the challan/charge-sheet submitted on the basis of the F.I.R. Lodged by complainant Suleman would hardly be applicable or acceptable in view of the fact that his brother, co-accused Razo was facing trial under the said charge-sheet, and was also convicted to imprisonment for life by judgment, dated 11-1-1996. The argument advanced by the State Counsel is not without substance and in our view it would have been an obstacle in the way of grant of bail to applicant/accused Bulando if it could be held that the evidence in possession of the prosecution has made out a prima facie case of murder of deceased Attur against accused/applicant Bulando punishable with death or imprisonment for life. However, while dealing with the question of culpability of accused/applicant Bulando, we have already come to the conclusion that the evidence does not prima facie connect the accused applicant with the offence of murder of deceased Attur and the matter requires further enquiry. Since the matter requires further enquiry, mere absconsion of accused/applicant Bulando would not be a sufficient ground for refusing bail to him. This view is fully supported by the pronouncement/observations made in the cases of; (i)
13. Ibrahim v. Hayat Gul and others 1985 SCM R 382; (ii) The State v. Malik Mukhtar Ahmed Awan 1991 SCM R 322; and (iii) Liaquat Ali v. The State 1995 PCr.LJ 1283. However, the observations/pronouncement made in the case of Jam Sadiq Ali v. The State 1989 PCr.LJ 1910 has no bearing to the facts and circumstances of this case and does not support the contention of Mr. Qurban Ali Chohan. However, in view of the pronouncement/observations in the three aforecited cases, we are clearly of the view that absconsion of accused/applicant Bulando and his failure to appear or present himself before the trial Court would not be a sufficient ground in itself to warrant refusal of bail to him.
14. ' It was submitted by Mr. Ghulam Shabbir Memon, Advocate for the State that the accused has been challaned for a scheduled offence inasmuch as it is the case of the prosecution that at the time of incident the accused/applicant was a member of an unlawful assembly, some members of which were armed with klashnikovs, and that the said unlawful assembly in prosecution of its common object committed the murder of deceased Attur and by virtue of the provisions of section 5-A(8) and section 7 of the Suppression of Terrorists Activities Act, this Court has no jurisdiction to entertain and grant bail to an accused person facing trial in the Special Court for a Schedule offence defined in the Suppression of Terrorists Activities Act, 1975. He further submitted that the authority or jurisdiction of this Court in granting bail to an accused facing trial before a Special Court constituted under Suppression of Terrorists Activities Act, 1975, is limited to accused persons who are suffering from some ailment or medically unfit in view of the ratio of the judgment in the case of Muhammad Aslam v. The State reported in 1991 SCM R 599. Mr. Qurban Ali Chohan counsel for the applicant/accused Bulando refuted the above arguments of the State Counsel and submitted that this issue has now been settled by the Supreme Court and it has been held that this Court has the authority and jurisdiction in exercise of the powers under section 497, Cr.P.C. To grant bail to an accused person facing trial before a Special Court constituted under the Suppression of Terrorists Activities Act, on any ground and not merely on medical ground or on the ground of illness in view of the pronouncement made by the Supreme Court of Pakistan in the case of The State v. Syed Qaim Ali Shah reported in 1992 SCM R 2192.
15. We have gone through the case of Muhammad Aslam v. The State 1991 SCM R 599 relied upon by the State Counsel and the case of The State v. Syed Qaim Ali Shah 1992 SCM R 2192 relied upon by Mr. Qurban Ali H. Chohan. A perusal of both the aforecited cases leaves no room for doubt with regard to the authority and power of this Court to press into service section 497, Cr.P.C. For granting bail to an accused person, who is facing trial before the Special Court constituted under the Suppression of Terrorists Activities Act, 1975, in addition to the power or authority of this Court to press into service section 561-A, Cr.P.C. In appropriate cases.
16. ' Upon the above discussions we have not the slightest doubt in our minds that a case is made out for enlarging the accused/applicant Bulando on bail. Accordingly, we allow bail to the applicant/accused Bulando on hist() furnishing one solvent surety in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.