1. ' The applicants/accused namely and respectively Suhrab son of Imam Bux Ujjan, Gul Muhammad son of Wahid Bakhsh, Wazir son of Nobahoo and Sain Bakhsh alongwith 5 co-accused Ismail, Dur Muhammad, Gul Muhammad, Uris, Ghulam Hyder were sent up to face trial for offence under section 302, P.P.C. In Crime No,77 of 1999 registered with Police Station Tando Masti Khan District Khairpur. The challan firstly was submitted on 25-1-2000 in which Ghulam Hyder and Ismail have been shown arrested while Suhrab, Dur Muhammad, Wazir, Uris, Naukar, Imam Bux, Ghulam Muhammad have been shown absconders and thereafter on 3-3-2000 the applicants/accused above named Suhrab, Gul Muhammad, Wazir, Sain Bux, Gul Muhammad, Dur Muhammad, have been sent up to face trial by way of supplementary challan.
2. ' The complainant namely Ali Dino son of Badal, Caste Ujjan resident of Village Dilo Ujjan Taluka Kungri, District Khairpur lodged report on 28-11-1999 which was taken down by Police Station Tando Masti Khan, District Khairpur under section 302, P.P.C. Vide Crime No,77 of 1999, in which the complainant has stated that Ali Hassan aged about 26/27 years is his younger brother. About one year back Ismial Ujjan had murdered his cousin namely Sikandar Ujjan on the ground of illicit relations. The complainant has further stated that the accused and complainant party are not on visiting terms. According to him last night when he, his brother Ali Hassan were present in their houses, at about Sohmani time a call was made from the outside and on such call the complainant, his brother Ali Hassan and uncle Fateh Muhammad came out and saw (1) Ismail, (2)
3. Suhrab, both sons of Imam Bux, (3) Dur Muhammad alias Duro, (4) Gul Muhammad alias Gullo both sons of Wahid Bux, (5) Ghulam Hyder son of Muharam, (6) Wazir son of Nebahoo, (7) Uris son of Bachal, (8) Naukar son of Nangar, (9) Sai Bux son of Nangi all by Caste Ujjan. Accused Ismail told the complainant party that they had come for "Faisala" and sat for some time and talked together for amicable settlement with each other, but the date was not fixed, accused Ismail asked Ali Hassan to draw aside for talks and according to complainant at 11-00 hours at the night time, Ali Hassan in the company of accused went but did not turn up and on the next day in the morning, complainant, his uncle Fateh Muhammad and Mst. Arbab jointly and other co-villagers also accompanied them and they all went in search of Ali Hassan and they were told by milk seller that one dead body wrapped up in sheet (Loi) is lying in the abandoned fish pond of Wadero Rahim Bux Narejo and on such information the complainant party went there and saw that dead body was wrapped up in Loi (sheet) and blood was lying there and on opening the sheet (Loi) complainant found the dead body of his brother Ali Hassan who had injuries caused by sharp-cutting weapon on neck and foot-prints were not visible due Pucca place and thereafter above witnesses were left over the dead body and complainant went at Police Station and lodged report that above-named applicants/accused in collusion with other co-accused on account of Faisala had come to the complainant party and took away Ali Hassan and caused him injury by sharp-cutting weapon and killed him.
4. ' The above-named applicants/accused filed bail application before the trial Court but without success hence this bail application before this Court.
5. ' I have heard the learned counsel for the applicants/accused as well as the learned counsel for the State.
6. ' The learned Advocate for the applicants/accused has stated that there is no evidence against the applicants/accused except last seen evidence, he has further submitted that no specific role is assigned to the applicants/accused who are seeking bail, there is no recovery from the accused/applicants of any kind, he has further submitted that the enmity has been admitted by the complainant in the F.I.R. And according to him the applicants/accused above-named surrendered before the Sessions Judge, Khairpur on 24-2-2000 voluntarily and he laid much stress that only last seen evidence is the piece of evidence against the applicants/accused and he further submitted that the dead body of the deceased Ali Hassan is said to have been recovered from fish pond of Wadero Rahim Bux Narejo and no role has been assigned to the applicants/accused and lastly stated that the applicants/accused are victim of enmity and prayed for grant of bail.
7. ' On the other hand Mr. Mumtaz Ali Siddiqui appearing for the State gave no objection to the grant of bail of the applicants/accused and did not controvert the grounds raised by the learned counsel for the applicants/accused and also submitted that last seen evidence is the weakest type of evidence and there is no other evidence against the applicants/accused, but in this regard he did not cite any law, whereas learned counsel for the applicants/accused cited a case-law Qaimuddin and 3 others v. The State reported in 1974 PCr.LJ 487 (Lahore) which is a criminal appeal and is not bail matter. He also cited case-law Muhammad Akbar v. The State reported in 1977 PCr.LJ 540 (Karachi) where the applicants/ accused have been granted bail on the ground of last seen evidence. He further, cited case-law Rafique Ahmed and others v. The State reported in 1984 M LD 1411, in which the bail has been granted on the ground that there is a last seen evidence and no incriminating recoveries have been effected from the accused/petitioner, and lastly he has cited case-law Mashooq Ali v. The State reported in 1994 PCr.LJ 1335, 1336 on the point of abscondance that no proceedings under sections 87/88, Cr.P.C. Have been initiated against the applicants/accused and this matter pertains to pre-arrest bail whereas the present case is after arrest.
8. ' According to the material available and the contents of the F.I.R. The occurrence has taken place on 27-11-1999 at 23-00 hours (11-00 p.m.) whereas the report has been lodged by complainant on 28-11-1999 at 13-00 hours (1-00 p.m.) and whereas the above-named applicants/accused have surrendered before the learned Sessions Judge, Khairpur voluntarily on 24-2-2000 and which shows that they remained absconders and concealed themselves for 3 months and they had the knowledge of the incident but they did not approach any Court for pre-arrest bail and concealed themselves for 3 months without any plausible explanation and such abscondance of the applicants/accused goes unexplained, noticeable abscondance of applicants/accused is there and when asked as to why the applicants/accused remained absconders for 3 months and concealed themselves and such abscondance is noticeable and disentitles the applicants/accused to the concession of bail, the learned counsel for the applicants/accused only submitted that there are no proceedings under section 87/88, Cr.P.C., he was also supported by learned counsel for the State Mr. Mumtaz Ali Siddiqui, but could not submit the satisfactory reply on such quarry. In a case of Sher Ali alias Sheri v. The State reported in 1998 SCM R 190-191 Placitum E, the bail has been refused to the petitioner on the ground that his abscondance which goes unexplained, such noticeable abscondance of accused disentitles him to concession of bail notwithstanding the merits of the case. It is also a well-established proposition that unexplained noticeable abscondence disentitles the person to the concession of bail, notwithstanding the merits of the case and such person then cannot seek a reward for such conduct fugitive from law and in this regard the reliance can be placed in a case Awal Gul v. Hazar Khan and others reported in PLD 1985 SC 402. In the case of Lal Muhammad v. The State reported in 1990 SCM R 315, in murder case the bail has been refused to accused when his name was not mentioned in the F.I.R. And only evidence available with the prosecution connected of the confessional statement of co-accused and the High Court had also refused bail and learned Supreme Court held that High Court not violating any legal provision or principle of law governing bail while rejecting bail application.
9. In the present case a young boy of 26/27 years of age has been murdered and there goes explained delay in lodging the F.I.R. As far as the enmity between the parties is concerned, the enmity is double-edged weapon which cuts both ways. Although no specific role is assigned but there is evidence of complainant Ali Dino, P.W. Habib Ali, and P.W. Fateh Muhammad that they have seen the deceased in the company of applicants/ accused who was found dead on the next morning and his dead body was recovered from fish pond of Rahim Bux Narejo and applicants/accused after committing an offence deliberately absconded away from the Wardat and concealed themselves and after lapse of 3 months from the date of incident surrendered before the learned Sessions Judge, Khairpur i.e, on 24-2-2000. This only factor disentitles them to the concession of bail, notwithstanding the merits of the case. I am not inclined to grant bail to the applicants/ accused who are completely involved in this case, consequently, this bail application is dismissed. However, the trial Court is directed to examine 3 material witnesses namely and respectively Ali Dino (complainant P.W. Arbab Ali and P.W. Fateh Muhammad within two months from the date of receipt of this order and after their examination the applicants/accused will be at liberty to repeat their bail application before the trial Court. Bail application is dismissed.