1. Granted subject to all just exceptions.
2. The applicant Gulfam son of Muhammad Sharif is facing trial in Sessions Case No,101 of 1995, pending in the Court of IInd Additional Sessions Judge, Sukkur in offence under sections 148, 353, 324, 149, P.P.0 read with sections 337-D, 337-A, 337, 302, 109, P.P.0 and under section 13-D of Arms Ordinance in Crime No, 155 of 1994, registered at Police Station "B" Section Sukkur.
1. ' The F.I.R of the above case was registered on 2-12-1994 on the basis of the complaint filed by S.H.O.
2. Raja Shaukat All of Police Station "C" Section, Sukkur, which was 'lodged at Police Station "B" Section, Sukkur.
3. ' The brief facts of the prosecution case are that on 2-12-1994 at 1810 hours, complainant S.H.O. Raja Shoukat Ali of Police Station "C" Section, Sukkur lodged the F.I.R with Police Station "B" Section, Sukkur alleging therein that he was serving as S.H.O. With Police Station "C" Section, Sukkur since last 11 months. On 3-5-1994 encounter was taken place in between law enforcing agencies and M.Q.M culprits within the jurisdiction of Police Station "C" Section Sukkur in which five culprits of M.Q.M were murdered. After that incident complainant was receiving threats through telephone and in writing that complainant, D.0 Sukkur and S.S.P Sukkur will be murdered. On 20-11-1994 murderous assault was made on D.0 Sukkur namely Sabhago Khan Jatoi in which one Abdul Hameed Memon was died, in that case complainant was one of the witness. On the day of incident public meeting was held by Qazi Hussain Ahmed at Qasim Park Sukkur wherein complainant was on duty. Qazi Hussain Ahmed while addressing the public that Sukkur Administration has committed the murder of Abdul Hameed Memon of M.Q.M so they would take revenge from Administration. After the end of Public meeting complainant came back to his house from where he proceeded to Police Station for his confidential duty, in the way P.C/945 Muhammad Yasin and Aijaz Amir Rajput met him when he reached at Railway crossing near Budner Station Godown. It was 1550 hours, one Abdul Rehman Bhindi armed with T.T. Pistol and five other unidentified persons out of them two had knives and other had T.T. Pistols came in front of his, vehicle their faces were not muffled. He had seen the other culprits clearly and he can identity them if they are brought before him. Abdul Rehman alias Bhindi instigated others that he is S.H.O. Raja Shoukat Ali, all of them fired and caused knives blows to complainant. On the cries P.C/945 Muhammad Yasin and Aijaz Amir Rajput were attracted and saw the culprits while causing the blows. It is further alleged that on the instigation of M.Q.M members, namely Naeem Siddiqui and Mehboob Siddiqui the M.Q.M culprits Abdul Rehman Bhindi alongwith five other unidentified culprits have made attempt to commit murder of complainant who was discharging his duty and this incident is the revenge of the murder of one M.Q.M Abdul Hameed Memon who was murdered in police encounter as he made the attempt to commit the murder of D.C. Sukkur.
4. ' Atter usual investigation of the said crime, the charge-sheet was submitted in the Trial Court, where the bail plea was filed on behalf of the present applicant/accused, which was dismissed by the said trial Court on 16-4-2001. Hence, the present bail application has been filed on behalf of the above named applicant.
5. ' Mr. Sardar Abdul Sattar Chohan, learned counsel for the applicant/accused has contended that the name of the present applicant/accused does not transpire in the F.I.R nor any prosecution witness has named him as accused in the said case. It is urged by the learned 'counsel that the co-accused Saeeduddin and Cheeta have made a statement before the police officer during the course of investigation and disclosed his name as co-accused. It is further stated by the learned counsel that the co-accused, namely Abdul Qayyum was arrested by the police and after submitting the charge-sheet, the trial Court has granted bail to the said co-accused Abdul Qayum on 11-2-1996 and while pendencey of the said trial co-accused Abdul Qayum has been acquitted by the trial Court on 29-5-1998 by the learned llnd Additional Sessions Judge, Sukkur. It is further urged by the learned counsel that the present applicant/accused was shown as the absconding accused in the charge sheet and after coming to know about the pendency of the said case, the said accused has surrendered himself before the A.T.C. Court in another case on 26-9-2000. In support of his contentions, learned counsel for the applicant/accused has relied upon the following cases:
(1) 1979 SCM R 9 (Muhammad Fazal alias Bodi v. The State).
(2) 1991 SCM R 322 (The State v. Malik Mukhtar Ahmed Awan).
(3) PLD 2000 Quetta 72 (Noorullah and 2 others v. The State).
(5) 2000 PCr.LJ 842 (Abdul Salam Irfan v. The State).
(6) 1996 PCr.LJ 1171 (Muhammad Shahban and another v. The State).
6. ' Mr. Muhammad Iqbal Memon, learned counsel for the State, has opposed the bail prayer on the ground that the applicant/accused was shown as an absconding accused in the charge-sheet and he is fugitive of law as remained absconder for sufficient long time and thereafter he surrendered before the A.T.0 in another crime on 26-9-2000.
7. ' I have gone through the different bail orders placed on record by the learned counsel for the applicant/accused and have also gone through the material placed on the record.
8. ' Admittedly, there is no other independent and cogent evidence available with prosecution which could connect the applicant/accused with the above alleged crime. The co-accused namely, Saeeduddin had confessed before the police and disclosed the present applicant/accused as the co-assailant. The statement of co-accused cannot be termed as evidence against the present applicant/accused: and this evidence has no value in the eye of law. Even no role has been attributed to the present applicant/accused as in what manner, the applicant /accused had participated with other co-assailants. The other co-accused, namely, Abdul Qayum was granted bail by trial Court and thereafter he has been acquitted from the said charges.
9. ' So far as the absconding of the present applicant/accused is concerned, the present applicant/accused resides in Sukkur city and process was returned unserved with the endorsement that the applicant/accused has absconded away after commission of the crime.
10. Since from the contents of the F.I.R. And the other evidence, the name of the present applicant/accused has not been disclosed by the prosecution witnesses about the commission of the offence and mere acquisition of an accused by other co-accused the abscondence will not be termed as evidence to disentitle the present applicant/accused from the concession of bail. The abscondence alone did not come in the way of an accused for grant of bail. In view of the dicta laid down in the above cases, the hail concession cannot be refused to an accused due to his abscondence if he has no knowledge of the case pending against him in the Court. The applicant/accused had surrendered himself in the Court by moving an application for surrendering himself, therefore, it cannot be presumed that he had deliberately avoided to appear before the trial Court. Therefore, by any stretch of imagination the applicant/accused had declared as an absconder. The trial Court while rejecting the bail application has not considered the merit of the case and has only dilated upon the statement of co-accused Saeeduddin that he had confessed his guilt before the police officer and the other merit of the case has not been considered. It is settled law that bail cannot be refused to an accused for abscondence if he has no knowledge about the case pending before any Court. If the case of an accused falls within the ambit of further enquiry or otherwise entitles to bail on merits. Bail becomes his right notwithstanding with his abscondence Mere abscondence does not disentitle the accused for grant of bail where the Investigating Agency purposely does not arrest. Failure of Investigating Agency to perform his duty cannot be used against the acused. Prima facie, the circumstances of this case are sufficient to bring the case of the applicant within the ambit of further enquiry and in view of the dicta laid down in the above cases, I am of the view that the applicant/accused is entitled for grant of bail. Resultantly, the bail is granted to the applicant/accused in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction r the trial Court.