2002 PLP 1324 (MLD)

Through instant Application No.344 of 2001 moved on behalf of complainant Muhammad Anwar, bail granted to accused‑respondents Abdul Rashid and Muhammad Javed by the learned Sessions Judge, Abbottabad vide order dated 17‑10‑2001 in case F.I.R. No. 81 of 2001 dated 10‑8‑2001 under sections 302/324/34, P.P.C. registered with Poli Station Bhagnotar, District Abbottabad has been sought to be cancelled.

2. Precisely narrated the facts are that the complainant made a report on 10‑8‑2001 at 1‑45 p.m. at Ayub Medical College, Abbottabad to the effect that there was polling for the local bodies elections on 9‑8‑2001. The complainant, his son Liaqat and others were present in the polling station i.e. the courtyard of Primary School Gal Dhoke, Abbottabad to poll their votes. At 13‑‑15 hours a quarrel ensued between Haroon son of Sultan, Aurangzcb son of Mir Afzal and accused respondent Javed son of Khushal and firing also started. In this firing some unknown person fired at his son Liaqat on account of which he was injured. The victim was immediately rushed to the hospital where he succumbed to his injuries and expired. The complainant did not charge anybody in the report. However, on the following day of the incident, supplementary statement of the complainant and P. Ws. Shaikh Farid and Haroon were recorded in which the accused‑respondents were charged for firing ineffectively whereas one Muhammad Salim co‑accused was charged for firing effectively on the deceased.

3. I have considered the contentions put forward on behalf of the petitioner's learned counsel and the learned Deputy Advocate‑General for State assisted by Mr. Fazli Haq Abbasi and Qazi Shamsuddin, Advocates for the accused‑respondents in the light of the record of the case, which has been gone through carefully including the impugned order. The case‑law cited by Mirza Abdullah Jan, Advocate and the learned Deputy Advocate‑General, has also been considered in the light of the facts and circumstances of the case.

4. Learned counsel for the petitioner vehemently contended that sufficient material consisting of the supplementary statements of the complainant and P. Ws. Sheikh Farid and Haroon was available on the file to connect the accused‑respondents with the guilt but the learned Sessions Judge totally ignored the same and extended concession of bail in favour of the accused‑respondents. The learned counsel also reiterated that in absence of the previous enmity between the parties, question of false implication does not arise. He added that both the accused respondents having actively participated in the incident resulting in the loss of life of an innocent young boy of 18 years of age, are vicariously liable for the offence and the mere fact that role of ineffective firing has been assigned to the accused‑respondents, provided no good ground for their release on bail. Additionally the learned counsel submitted that immediately after the occurrence the accused‑respondents absconded and this fact alone is sufficient to prove their complicity in the crime in question. To substantiate the please, learned counsel placed reliance on Muhammad Ishaq v. Chanzeb (1996 PCr.LJ 845), Haji Gulu Khan v. Gul Daraz Khan (1995 SCMR 1765), Munir Ahmad and another v. State (1997 SCMR 445) and Hadayat Ali v. Muhammad Shahbaz (2002 MLD 83).

5. On the contrary, the impugned order is supported and it is submitted that considerations for grant of bail and that of cancellation are entirely different and once a Court of competent jurisdiction has granted bail, very strong and exceptional grounds are required to cancel the same. Carrying forward their arguments it was maintained that abscondence has not been proved and that the accused‑respondents are riot shown to have misused the concession of bail, To substantiate the plea, reliance has been placed on The State v. All Muhammad (1993 PCr.LJ, 519), Syed Amanullah Shah v. State (1996 SCMR 241), Gulzar Ahmad v. The State (1997 MLD 1606), Tariq Bashir v. State (PLD 1995 SC 34), Abbas Khan v. The State and others (1992 P.Cr.LJ. 417 Peshawar), Gul Raza v. The State and 2 others (1992 P.Cr.LJ. 414 Peshawar), Ghulam Nabi v. Muhammad Shafique and another (1979 SCMR 479) and State v. Ali Muhammad and 2 others (2001 PCr.LJ 1459 Peshawar).

6. It is worthwhile to observe that in cases specially in bail, every case has got its own circumstances and facts and the bails are granted under those particular circumstances and except broad principles laid down by the superior Courts no other example is attracted. The deeper appreciation or evaluation of material at the stage of bail is not permissible for the grant or refusal of bail. Only tentative assessment is to be made. Where grounds exist for further inquiry into the guilt of the accused bail cannot be withheld. In order to ascertain when the reasonable grounds exist under section 497(2), Cr.P.C. the Court as of necessity has to look into the material available.

7. It is settled principle of law that at bail granting stage the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question, and hence no detailed inquiry is to be concluded by the Court.

8. It is also settled law that mere presence of the accused at the scene of the occurrence is no ground to refuse bail on the basis of vicarious liability which of course would be proved or disproved at the stage of the trial.

9. It is undoubtedly within the discretion of the competent Court to grant bail to the accused even in appropriate murder cases. The Court is, however, under heavy duty to exercise its discretion fairly, justly and properly which, in any case, should be based on good grounds to meet the ends of justice

10. In the instant case, the accused‑respondents are alleged to have fired ineffectively on the person of the deceased whereas the role of effective firing has been attributed to Muhammad Salim. Undoubtedly there is a direct charge of constructive liability in the supplementary statement of the complainant and P.Ws. Sheikh Farid and Haroon, nonetheless, the learned Sessions Judge has extended the concession of bail to the accused‑respondents for valid reasons warranting no interference of this Court. It needs no reiteration that the bail can be cancelled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecution witnesses or manages to flee away from the country or beyond the control of sureties but in the present case no such circumstance exists. The accused‑respondents do not seem to have misused the concession of bail. In the circumstances, the matter appears to be of further inquiry. Vicarious liability in the circumstances shall be considered at the time of trial. A competent Court has granted the bail to the accused‑respondents at its discretion under impugned order which does not appear to be fanciful, perverse or arbitrary.

11. So far as the question relating to abscondence of the accused -respondents is concerned, from the perusal of the record it is not discernible that a warrant‑under section 204, Cr.P.C. was issued against the respondents. Similarly the proclamation under section 87, Cr.P.C. is not shown to have been issued against these two accused‑respondents. It is a settled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder to the concession of bail, notwithstanding the merits of the case but in the present case the situation is altogether different.

12. The case‑law produced on behalf of the petitioner is distinguishable and has no applicability to the facts of the present case. Even otherwise case‑law in a particular case specially in bail matters, has no applicability to the facts of other cases. Therefore, if bail is granted in one criminal case it is not necessary that the same is to be granted in other cases.

13. For the aforesaid reasons I find that no ground exists for interfering with the order dated 17‑10‑2001 which is impugned before this Court. The petition fails which is hereby dismissed.

14. The observations made in this order are without prejudice to the merits of the case and shall not influence the trial Court in any manner.

15. I had by order dated 5‑4‑2000 dismissed the application in hand for the reasons to be recorded later. The above are the reasons. N.H.Q./480/P Petition dismissed.