2009 S C M R 299

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

MITHO PITAFI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.69-K of, 2008, decided on 29th October, 2008.

(Against the order, dated 11-8-2008 passed by High Court of Sindh, Sukkur Bench in Criminal Bail
Application No.376 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Constitution of Pakistan (1973), Art.185(3)---

Bail, grant of---Co-accused was released on bail by the Trial Court, but the concession of bail was
declined to the accused petitioner on the ground that he was fugitive from law---High Court as well
as the Trial Court had rejected the bail of petitioner on account of his absconsion and not on merits---
Validity---Bail could be granted, if accused had good case for bail on merits and mere his absconsion
would not come in the way while granting him bail---High Court had not appreciated the facts and
circumstances of the case in its true perspective while declining bail to the petitioner---Petition was
converted into appeal and same was allowed---Impugned order passed by the High Court was set
aside and the petitioner was directed to be released on bail, in circumstances.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.

Shahadat Awan, P.-G. Sindh for the State.

ORDER

SYED ZAWWAR HUSSAIN JAFFERY, J.---The petitioner seeks leave to appeal against the
order, dated 11-8-2008, passed by High Court of Sindh, Sukkur Bench, whereby the concession of
bail was declined to the petitioner.

2. Brief facts of the case, leading to filing of this petition, are that the complainant namely
Muhammad Murad Pitafi lodged F.I.R. No.187 of 2000 at Police Station Mirpur Mathelo, District
Ghotki, alleging therein that on the day of incident i.e. 15-11-2000 at about 12-30 there had been a
matrimonial dispute between his brother, brother-in-law and his family with Chacher Pitafi and
other relatives, who had threatened them of teaching a lesson. On that day, his brother Mir Hassan
Pitafi, nephew Noor Muhammad Pitafi, niece Mst. Shehnaz and brother-in-law Pehlwan Pitafi were
harvesting paddy in the land of Gulo Channar while the complainant was also harvesting at some
distance, Chacher, Ghouso alias Ghous Bux, Mero Pitafi, armed with kalashnikovs, came there,
abused and fired upon Mir Hassan, Noor Muhammad, Mst. Mehnaz and Pehlawan with intention to
commit murder. On hue and cry, complainant and other villagers were attracted who also witnessed
the occurrence. After that all the accused ran away. The complainant and other witnesses saw that
Mir Hassan, Noor Muhammad and Mst. Mehnaz had died due to fire-arm injuries. Pehlawan also
sustained injuries. Thereafter, the complainant with the help of other witnesses, carried the dead
bodies and the injured to hospital. Thereafter, he lodged a report in the concerned police station.

3. During the course of investigation, the case was challaned which is pending adjudication before
the IInd Additional Sessions Judge, Ghotki. After having rejected bail by the IInd Additional
Sessions Judge, the petitioner approached the learned High Court for bail but remained
unsuccessful. Hence this petition for leave to appeal.

4. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been
implicated in the case by the complainant due to matrimonial dispute. As per F. I . R . , the petitioner
was not shown present at the time of occurrence and only accused Chacher, Gous Bux and Mero
Pitafi were nominated as main accused. As per order, dated 18-2-2002, in the similar circumstances,
bail has been granted by the trial Court to accused Jam Pitafi while the bail of petitioner has been
declined. Therefore, the petitioner also deserves for concession of bail.

5. On the other hand, learned Prosecutor-General, appearing on behalf of State, has admitted the
factual position and submits that he has no objection if the petitioner may be released on bail.

6. We have heard learned counsel for the petitioner as also the prosecutor-General, appearing on
behalf of the State, and have perused the material available on record with their able assistance.

7. According to F.I.R., neither any role has been attributed to the petitioner nor his presence has
been shown at' the time of occurrence. Vide order, dated 18-2-2002, co-accused namely Jam Patafi
has been released on bail by the learned trial Court but the concession of bail was declined to the
petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as
learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is
well-settled principle of law that bail can be granted if an accused has good case for bail on merit
and mere absconsion would not come in way while granting the bail. We are, prima facie, of the
view that the learned High Court has not appreciated the facts and circumstances of the case in its
true perspective while declining bail to the petitioner.

8. For the foregoing reasons, this petition is converted into appeal and the same is allowed. The
impugned order, passed by the High Court of Sindh, is set aside and the petitioner is directed to be
released on bail subject to furnishing bail bond in the sum of Rs.2,00,000 (two lacs) and P.R. bond
in the like amount to the satisfaction of trial Court.

H.B.T./M-94/SC Bail granted.