1999 P Cr (PLP)

‑‑‑‑Bail‑‑-Abscondence of accused‑‑‑Effect‑‑‑Fugitive from law and the Courtf loses some of his normal rights granted by the procedural as ‑.well as substantit t law. Wali Khan Afridi for Petitioner. Kh. Azhar Rashid, Asst. A.‑G. for the State. Salim Dil Khan for the Complainant. Date of hearing: lth September, 1998. Rehmatullah accused‑petitioner, having failed to secure bail from the lower Courts in a case under section 302/324/34, P.P.C. registered against him through F.I.R. No.144, dated 20‑7‑1994 of Police Station Akbarpura, has approached this Court for the said relief.

2. The contents of the F.I.R. are that Ihsanullah complainant alongwith his brother Kifayatullah were going to the house of Rehmatullah to lodge protest over the cutting of branches of their trees. When they reached the place of occurrence, they 'met Rehmatullah, accused‑petitioner and his brother Farmanullah who were asked as to why they have cut the branches and directed to refrain in future, upon this, they got infuriated and the accused‑petitioner commanded his brother Kifayatullah to kill them. Farmaullah fired at them with his pistol with which Kifayatullah was hit whereas the complainant escaped unhurt.

3. Learned counsel for the petitioner contended that the petitioner who was unarmed has been attributed the role of proverbial Lalkara. Since no effective role has been assigned him, therefore, in view of the judgment of the apex Court reported in 1995 SCMR 343, he is entitled to the concession of bail.' He further contended that the petitioner remained in abscondence but this fact by itself would not disentitle him to be released on bail. In this regard he relied on 1991 SCMR 322 wherein it has been held that the accused if otherwise is entitled to bail he cannot be denied bail merely on the plea of abscondence. He submitted that Farmanullah who was charged for‑effective firing has been killed and the petitioner is no more required for further investigation of the case, therefore, he may be released on bail.

4. Learned counsel for the complainant vehemently resisted the bail plea arguing that the petitioner is a desperado who after the commission of the crime absconded and remained in abscondence for a noticeable period of four years which has not been explained by him. He was arrested in a Police raid vide F.I.R. No.152, dated 15‑6‑1998 Police Station Urmarh registered under section 13, Arms Ordinance/4 S.T.A and 5 Explosive Act. He submitted that the role attributed to the petitioner is not that of proverbial 'Lalkara' as the complainant party met the accused party on the way to whom protest was lodged as to why they had cut the branches of their trees whereupon Rehmatullah commanded Farmanullah to shoot as a result of which Kifayatullah was killed. Hence it is not a ' Lalkara' simplicitor but a command which was duly obeyed, therefore, he abetted the crime which is punishable with the punishment provided for the offence.

5. Learned Assistant Advocate‑General adopted the arguments of the learned counsel for the complainant and opposed the bail plea.

6. After hearing the learned counsel for the parties and going through the record I do not find a fit case where the concession of bail be allowed. After the occurrence which took place on 20‑7‑1994 the petitioner absconded and remained fugitive from law till 15‑6‑1998 when he was arrested in police raid. On a tip off that a number of proclaimed offenders have assembled in the 'Hujra' of Shakir Qasim, a Police party raided the ' Hujra' wherefrom ten armed proclaimed offenders including the petitioner were arrested and to this effect F.I.R. No. 152 dated 15‑6‑1998 under section 13, A.O./4 S.T.A./5 Explosive Act, Police Station, Urmarh was registered. The abscondence of a noticeable period of four years has not been explained by the petitioner. It is well‑settled law the fugitive from law and the Courts loses some of normal rights granted by the procedural as well as substantive law. The petitioner's unexplained noticeable abscondence, therefore, disentitles him to concession of bail notwithstanding merits of the case.

7. Even on merits the petitioner has no case for bail. He commanded anti instigated his brother Farmanullah to shoot, whereupon he fired at Kifayatullah who as a result thereof died. Therefore, the petitioner's case falls under section 109 P.P.C. which is punishable with the punishment provided for the main offence. In the circumstances, there are reasonable grounds to believe that the petitioner is guilty of the offence punishable with death or imprisonment for life. Consequently, this bail application is rejected. N.H.Q./205/P????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.