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Petitioner: HUSSAIN BUX VS Respondent: StateHonorable Justice Abdul Rasool MemonShahbaz Ali M. Brohi
2013 M L D 170
[Sindh]
Before Abdul Rasool Memon, J
HUSSAIN BUX---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. S-269 of 2012, decided on 27th June, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Further inquiry---Fatal injury attributed to the co-accused only---Accused only alleged to be present at the place of incident with weapon---Accused having made no firing---No overt act attributed to the accused---Effect---Participation of accused in the commission of offence required further inquiry, in circumstances---Accused was admitted to bail.
Muhammad Sadiq v. State 1996 SCMR 1654 and Muhammad v. State 1998 SCMR 454 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail, right of---Abscondence of accused---Effect---Right of bail could not be refused merely on account of his abscondence which was a factor relevant only to propriety---Where accused was entitled to bail on merits, his mere abscondence would not come in his way.
Qamar alias Mitho v. State PLD 2012 SC 222 rel.
Shahbaz Ali M. Brohi for Applicant.
Miss Rubina Dhamrah, State Counsel.
ORDER
ABDUL RASOOL MEMON, J.---By this order, I would like to dispose of an application under section 497, Cr.P.C. filed on behalf of applicant Hussain Bux Marfani who is booked in Crime No.21 of 2006 of Police Station, Jaggan at Hamayoon to face his trial under section 302, P.P.C.
2. Learned counsel for the applicant has contended that the main injury has been attributed to co-accused Mubarak alias Triminti and Muhammad with Kalashnikovs while presence of present applicant is shown at the place of wardat being armed with gun and there is no allegation of any sort that he used gun even for aerial firing. He has contended that in a case of Muhammad Sadiq v. State (1996 SCMR 1654) and Muhammad v. State (1998 SCMR 454) though the accused were armed with weapon but did not make any fire, were granted bail by the honourable Supreme Court. He prays that the involvement of the applicant and sharing his common intention in the commission of the alleged offence is a matter of further enquiry. He prays for grant of bail.
3. Miss Rubina Dhamrah, learned State counsel has contended that name of the applicant appears in the F.I.R. He was accompanied with principal accused Mubarak alias Triminti being armed with gun and went to the place of occurrence and thereby he has shared his common intention in the commission of the alleged offence. However, she admits that the applicant has not even made aerial firing in the incident from his gun. Learned State counsel has contended that the applicant was absconder, therefore, he is fugitive from law and notwithstanding merits of the case he is not entitled to bail on the ground of abscondence.
4. It is an admitted fact on record that the alleged fatal injury of causing death of deceased Arbab has been attributed to co-accused Mubarak alias Triminti and Muhammad who were armed with Kalashnikovs only presence of the present applicant has been shown at the place of occurrence being armed with gun. In a case of Muhammad (Supra), it is held that the accused has allegedly fired ineffectively and no injury was attributed to him during the occurrence and it was held that case against the accused needed further enquiry and accused Muhammad was admitted to bail by the honourable Supreme Court in a case of capital punishment. While in a case of Muhammad Sadiq (supra), accused were alleged to have kept on firing and raising lalkara at the time of occurrence although accused were armed with pistol and rifle yet they did not cause any injury to the complainant party and the petitioners were admitted to bail. Relying on the aforesaid case and considering the role of the applicant that he did not made any firing though he was armed with gun and no overt act of any sort is attributed to him, therefore, his participation in the commission of the offence requires further enquiry. So far as abscondance of the accused is concerned, it held in a case of Qamar alias Mitho v. State (PLD 2012 SC 222) that right of bail could not be refused merely on account of his abscondance which is a factor relevant only to propriety. It is also settled law that if the accused is entitled for bail on merits then mere abscondence will not come in his way. Accordingly, I admit the applicant on bail subject to furnishing surety in the sum of Rs.300,000 with P.R bond in the like amount to the satisfaction of the trial Court.
MWA/H-16/K Bail granted.