2021 Y L R 2230
[Balochistan]
Before Zaheer- ud-Din Kakar, J
FAQIR DAD---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. 209 of 2020, decided on 28th May, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497--- Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd and common intention---
Bail, grant of ---Implication of accused on supplementary statement ---Absconsion---Acquittal
of co -accused ---Further inquiry--- Scope --- Accused sought bail after arrest in a case lodged
under Ss. 302 & 34, P.P.C.---Accused was not nominated in the FIR rather he was arrested
on the basis of supplementary statement of complainant recorded after nine days of lodging
of FIR, thus, the possibility of deliberations and consultations could not be rule d out ---Only
piece of evidence against the accused was his disclosure, which prima facie was not corroborated by any other piece of evidence ---Court, while considering the bail plea of
accused, could not ignore the acquittal of co -accused vis -à-vis the mer its of his case ---
Accused person's absconsion of ten years could not be treated as a bar to his release on bail --
-Case of accused was one of further inquiry--- Petition for grant of bail was allowed, in
circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S.497--- Bail---Tentative assessment--- Scope ---Only tentative assessment of facts is
required while disposing of ancillary matters like bail, etc.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497--- Bail---Further inquiry--- Scope ---Bail is to be allowed to an accused as of right
and not by way of grace or concession in a case calling for further inquiry into his guilt.
Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Qamar alias Mitho v. The
State and others PLD 2012 SC 222 and Ehsanullah v. The State 2012 SCMR 1137 ref.
(d) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail ---Acquittal of co -accused --- Scope --- Court, while considering the bail plea
of an accused, cannot ignore the acquittal of co -accused.
Jam Sadiq Ali v. State 1989 P Cr.LJ 1910 and Nawab Ali v. State 2003 YLR 113 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 497--- Bail---Absconsion--- Scope ---Absconsion of an accused cannot be treated as a
bar to his release on bail ---Rule that fugitive from law shall under no circumstances be
enlarged on bail is not absolute if the case of an accused is otherwise found fit for bail on
merits.
State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and Mithu Pitafi v. The State
2009 SCMR 299 ref.
Khalid Kubdani for Applicant.
Abdul Nafay, State Counsel.
Date of hearing: 21st May, 2020.
ORDER
ZAHEER -UD-DIN KAKAR, J. ---Through this application filed under section 497,
Cr.P.C, the applicant seeks grant of post -arrest bail in case FIR No.14 of 2009 dated
14.09.2009 for offenc es under sections 302, 34, P.P.C. registered at Levies Thana,
Dalbandin.
2. Facts of the case need not to be reiterated as the same have been stated in the memo
of application as well as in the impugned order.
3. Plea of post -arrest bail of the applicant d id not find favour with the Additional
Sessions Judge, Dalbandin, who dismissed the same vide order dated 13.05.2020.
4. Learned counsel for the applicant while arguing the matter mostly relied on the points
raised in the application, whereas the learned S tate Counsel vehemently opposed the
application.
5. I have heard the learned counsel for the parties and gone through the available record.
It is an established principle of law that only tentative assess -ment of facts is required while
disposing of the ancillary matters like bail etc.
Applying the above principle, a tentative assessment of the record reveals that the
occurrence was unseen. The applicant is not nominated in the FIR rather he was arrested on the basis of supplementary statement of complaina nt recorded after nine days of lodging of
FIR, thus, the possibility of deliberations and consultations cannot be ruled out. The only piece of evidence against the applicant is his disclosure, which is prima facie has not been corroborated by any other pie ce of evidence, as such, the evidentiary of the same would be
determined by the trial Court during trial. In this backdrop, the case of the applicant becomes
one of further inquiry.
It is settled law that in a case calling for further inquiry into the guilt of an accused
person, bail is to be allowed to him as of right and not by way of grace or concession. A
reference in this respect may be made to the cases of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182, Qamar alias Mitho v. The State and others P LD 2012 SC 222 and
Ehsanullah v. The State 2012 SCMR 1137.
Besides, co -accused Abdul Majeed and Haji Shah Jehan have been acquitted of the
charge by the Additional Sessions Judge, Dalbandin vide order dated 22.01.2010 by accepting application under sectio n 265- K, Cr.P.C. The Court, while considering the
applicant's plea of bail, could not ignore the acquittal of co- accused viz a viz the merits of his
case. In the case of Jam Sadiq Ali v. State (1989 PCr.LJ 1910) even bail before arrest of the accused was confirmed on the sole ground that his co- accused in murder charge was
acquitted. In case of Nawab Ali v. State 2003 YLR 113 has observed that the case of accused was identical to the case of co -accused, who had been acquitted on similar charge and his
absco ndance could not be treated as a bar to his release on bail.
6. As far as, the contention of the learned State Counsel that the applicant remained
fugitive from law for about ten years, therefore, he is not entitled for concession of bail. I do not agree w ith the contention of learned State Counsel for the reasons that it is settled
principle that the abscondance of an accused could not be treated as a bar to his release on bail. The rule that fugitive from law shall under no circumstances be enlarged on ba il is not
absolute if the case of an accused is otherwise found fit for bail on merit and that bail cannot be refused if he had remained an absconder. In this regard, reference can be made to the case
State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and Mit hu Pitafi v. The State 2009
SCMR 299.
7. For the above reasons, the application is allowed and the applicant Faqir Dad son of
Suleman is admitted to post- arrest bail in case FIR No.14 of 2009 14.09.2009, registered at
Levies Thana, Dalbandin, District Chaghi, subject to his furnishing surety bonds in the sum of Rs.300,000/ - (Rupees three hundred thousand only) with one surety in the like amount to
the satisfaction of Additional Registrar of this Court or the trial Court.
The observations made herein -above are tentative in nature and shall not prejudice the
case of either party before the trial Court.
SA/152/Bal. Bail granted.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,
let us know.