2010 Y L R 2566
[Quetta]
Before Mrs. Syeda Ta hira Safdar, J
HAZOOR BAKHSH ---Applicant
Versus
THE STATE ---Respondent
Criminal Bail Before arrest Application No. 85 of 2009, decided on 11th January, 2010.
Criminal Procedure Code (V of 1898) ---
----S. 498 ---Penal Code (XLV of 18 60), Ss.324, 147, 148 & 149 ---Attempt to commit qatl -e-
amd---Bail before arrest, refusal of ---Accused was specifically nominated in F.I.R. and
remained absconder and he only appeared before the Trial Court when his four co -accused
were acquitted of the cha rge---Contention of accused was that he was unaware of filing of
case and trial and when he came to know about the same he approached his counsel with
intention to surrender him before the Trial Court which seemed to be less believable, as
accused and othe r accused persons who faced trial were residents of the same area and his
unawareness about institution and trial of the case was not possible ---Accused avoided to
appear before the Trial Court and tried to obtain bail from the High Court without
surrender ing himself unconditionally, his conduct was not proper ---Accused could not take
benefit of order of acquittal of co -accused ---Accused in circumstances was not entitled for
concession of pre -arrest bail ---Order granting ad interim bail in favour of accused , was
withdrawn, in circumstances, and he was directed be taken in custody.
Asadullah for Applicant.
Abdul Rahim Mengal A.A. -G. along with Musthaq S. -I./Investigating Officer Present along
with record for Respondent.
ORDER
MRS. SYEDA T AHIRA SAFDAR, J. ---Through instant application the applicant seeks for
grant of concession of bail in his favour, as he has committed no offence, while he was not
aware of registration of case and pendency of the trial, as soon as he came to know about the
same he approached his counsel and surrender him before trial Court for grant of bail before
arrest, which was initially granted, but thereafter, re -called without any justification. He has
been involved in present case with co -accused persons with mala f ide intention only to
humiliate them in eyes of their friends, relatives and general public. Further, no specific role
has been assigned to him. Furthermore, the co -accused persons were acquitted of the charge
under section 265 -K, Cr.P.C. It is his content ion that due to serious illness he was admitted in
hospital, thus unable to appear before the trial Court, who did not consider the same.
The perusal of record reveals that the applicant has prayed for grant of pre -arrest bail in his
favour, whereupon through order made on 24 -12-2009 protective bail was granted in favour
of the applicant, while he was directed to appear before trial Court. But thereafter, through
order made on 29 -12-2009 of this court the request of the applicant was allowed and the ord er
of protective bail was recalled, while ad -interim bail was granted in his favour. Presently the
applicant seeks confirmation of the bail granted in his favour. As per record an F.I.R. No.2 of
2009 Police Station Aziz Balo Shaheed was registered on 10 -1-2009, whereby it has been
reported by one Murad Bakhsh about an incident when the accused persons namely Hazoor
Bakhsh, Sooba Khan, Daim, Arz Muhammad Dr. Allah Dina, Ghulam Muhammad, Shah
Mir, Sattar, Beera, Hamal Khan, Kali Nawaz, Ghulam Qadir with three unknown persons
were ambushed in armed position in their way, on seeing the complainant party they started
firing on them, thereby injured Sharan, Haji Khan and Tota Khan. The case was thereafter
challaned against accused persons namely Hamal Khan, Ali Na waz, Ghulam Qadir, Arz
Muhammad, Shah Meer, Beera. During course of trial accused Hamal Khan, Ali Nawaz,
Ghulam Qadir and Arz Muhammad were acquitted of the charge while accepting their
application under section 265 -K Cr.P.C. through order made on 29 -8-2009 by the trial Court.
The present applicant along with remaining accused persons was declared as proclaimed
offender. It is further apparent from record that the applicant approached the trial Court for
grant of pre -arrest bail, which was granted through o rder dated 15 -12-2009. But the said
order was withdrawn due to non -appearance of the applicant through order dated 21 -12-2009.
Thereafter, the applicant approached this court with prayer for grant of pre -arrest bail in his
favour. Though he was granted pro tective bail, but he avoided to appear before the trial
Court, rather insisted for disposal of the application on merits by this court, whereupon ad -
interim bail was granted in his favour, the confirmation of which is now matter in issue
before this court.
The perusal of record reveals that the applicant is specifically nominated in F.I.R., which was
lodged on 10 -1-2009, whereby six nominated persons were arrested and challaned for trial.
While the applicant along with five other nominated persons remai ned absconder. It has been
noted that the applicant remained absconder during this period; he only appeared before the
trial Court when four of the accused persons were acquitted of the charge. As per applicant he
was unaware of filing of case and trial an d when he came to know about the same he
approached his counsel with intention to surrender him before the trial Court. It seems to be
less believable, as the applicant and the other accused persons who faced trial are residents of
same area; therefore, th ere is less possibility of his unawareness about institution and trial of
the case. He has been nominated in F.I.R., while he remained absconder for several months.
Further, he avoided to appear before the trial court, rather tried to obtain bail from this court
without surrendering himself unconditionally. His conduct is not proper. He cannot take
benefit of order of acquittal of co -accused persons. The evidence recorded during course of
trial and order made thereon cannot be considered at this stage in fa vour of the applicant, who
is required to be arrested at first instance, thereafter, he can move the trial Court for grant of
bail in his favour. Thus in the circumstances the applicant is not entitled for concession of
bail, that too pre -arrest at this st age. Therefore, the ad -interim bail granted in favour of
applicant Hazoor Bakhsh son of Pir Bakhsh through order made on 29 -12-2009 is hereby
withdrawn. He be taken into custody at once.
H.B.T./58/Q Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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