2010 PLP 179 (SCMR)

MIAN SHAKIRULLAH JAN, J.

The petitioner is seeking cancellation of bail, granted to the respondent/accused by the High Court in a case registered under section 364/109 P.P.C. with the allegation of abduction of the brother of the complainant, through the instant petition for leave to appeal.

2. The abductee, Raja Abdul Rehman, who settled in Norway, contracted a second marriage here in Pakistan with Mst. Nageena Kosar, during the subsistence of the first marriage from whom he has got grown up children. His in-laws, the brothers and relatives of the first wife, have taken ill of contracting his second marriage and nourished a grudge against him and conspired to finish him. The respondent/accused, who is statedly to be a close relative of his in-laws, managed to take the abductee to Lala Musa with him on his abductee's motorcycle on some pretext of exchanging of Norwegian currency. After the lapse of sufficient time when the abductee did not return home his second wife, Mst. Nageena Kosar, in whose presence the abductee was taken away by the respondent/accused, tried to contact her husband on Mobile Phone and the abductee on phone told her that he was far away from his house and asked her to pray to God for his return and the phone was disconnected. After the lapse of about four years, since the registration of the case i.e. on 31-10-2005, the abductee is still untraced and there is every likelihood that he might have been killed. The respondent/accused after remaining fugitive from law for sufficient time when was arrested he applied for his bail before the Additional Sessions Judge, Kharian, but could not succeed and then he approached the High Court for the bail which was granted to him and against that order the petitioner/complainant has now come to this Court for the cancellation of his bail.

3. The learned counsel for the petitioner contended that the evidence available on the record is sufficient to connect the respondent/accused with the crime and being absconder for a longer period he is not entitled to the concession of bail and the High Court while ignoring the material evidence on record has granted bail to him to which he is not entitled. The learned counsel for the respondent/accused has vehemently opposed the learned counsel for the petitioner by stating that the High Court has very rightly allowed bail to the respondent/ accused as the only evidence is that of last seen evidence and which by itself is not sufficient to secure conviction of the respondent/ accused in the case. The learned Deputy Prosecutor-General has also supported the petitioner/complainant for the cancellation of bail.

4. The respondent/accused has been directly charged in the F.I.R. for instigating and taking away the abductee from his house in the presence of his wife, Mst. Nageena Kosar, though the F.I.R. has been lodged with a delay of some days but in such like cases the delay generally occur when the relatives of the abductee launch a search for the abducted person and after having no clue then they resort for the help of the law enforcing agencies. The version of his wife, Mst. Nageena Kosar, is a strong piece of evidence in whose presence the abductee was taken away by the respondent/accused and also when she was having a telephonic contact with him and his response was indicative of he (the abductee) being in a difficult situation and was seeking the help of some one. This is not a case of ordinary last seen evidence when the deceased is seen in the company of the accused and whereafter he is found dead somewhere but here there is a specific assertion that it was the respondent/accused who was solely responsible for taking away the abductee and after that time till today his whereabouts are not known. The conduct of the respondent/accused by remaining fugitive from law further lends support to the prosecution story and particularly at the bail stage when such a conduct is relevant one and to be taken into consideration as when he does not care to be a law abiding person to surrender himself immediately to the law enforcing agencies, if he is not guilty, and did make himself available to the investigating agency to help it in arriving at a fair conclusion by associating him with the investigation. The contention of the learned counsel for the respondent/accused that being a weak case and his case is not fit for cancellation of bail as on such evidence he cannot be convicted he has lost sight of the relevant provision relating to bail under section 497, Cr.P.C. where a different criteria than the one settled by a chain of authorities by the superior Courts whereby in case of conviction or acquittal the benefit of doubt plays an important role but under section 497, Cr.P.C. the criteria is that the petitioner shall not be granted bail when there exist reasonable grounds to believe that he is guilty of the offence. By going through the record of the case one can very comfortably arrive at such a conclusion that there are reasonable grounds for believing that the respondent/accused is guilty of the offence and he was not entitled to the grant of bail and which deserves to be recalled.

5. Consequently, this petition is converted into appeal and allowed. The order dated 22-7-2008 passed by Lahore High Court, Lahore, is set aside as a result whereof bail granted to the respondent/accused, Muhammad Afzal s/o Muhammad Asghar, its recalled. He is ordered to be taken into custody immediately. He be kept as an under trial prisoner. However, the observations made in the instant order may not influence the trial of the case as the same will have to be decided on the basis of evidence recorded by the Court during tine trial and which evidence is not available before us at the moment and also no account of different criteria for the grant or refusal of bail than the trial while convicting or acquitting the accused. N.H.Q./F-23/SC Bail cancelled.