P L D 1991 Peshawar 70 (PLP)

S. Zafar Abbas Zaidi for the Complainant. Date of hearing: 28th January, 1990. Zarwali, Zahid Ali, Hazrat Ali, sons of Mir Wali and Mirzali son of Zarwali, petitioners have moved this petition for bail in a case registered against them and two others under sections 148, 302 and 307 read with section 149, P.P.C. In the occurrence which‑ took place on 19‑4‑1989 at about 9‑00 a.m., Sher Jan complainant sustained fire‑arm injuries at the hands of accused Zarwali and Zahid Ali, while his brother Ghulam Jan was killed by the firing attributed to Sher Ali and Ahmad Ali absconders. The motive for the occurrence was an old blood‑feud between the parties. 2. Sanaullah Khan Gandapur, the learned counsel for the petitioners, contended that the entire family of the petitioners has been roped in and, therefore, the possibility of false charge at least qua the petitioners cannot be ruled out. He further submitted that the evidence of the prosecution is highly interested and inimically deposed towards the petitioners. According to him, there were two incidents of firing: one in which the absconders had fired effectively at the deceased; and the other in which the petitioners are alleged to have attempted at the life of Sher Jan complainant, but two graze wounds of fire‑arm, one on the forehead and another on the middle of the right upper arm, have been caused to the complainant which were later on declared to be simple in nature by the Medical Officer and, therefore, the petitioners are entitled to bail. 2. On the contrary, Mr.Ejaz Muhammad Khan, the learned Assistant Advocate‑General, opposed the plea of bail advanced on behalf of the petitioners and submitted that the petitioners were vicariously liable not only for the fire‑arm injuries caused to the complainant, but also for the injuries sustained by Ghulam Jan deceased. He further urged that the petitioners, in a broad daylight occurrence, had resorted to indiscriminate firing at the complainant party causing fatal injuries to Ghulam Jan deceased and two fire‑arm injuries, one of which was on the vital part of the body, namely, forehead, to the complainant, and were thus not entitled to bail. The learned Assistant Advocate‑General also urged that hurt caused by the fire shots of the accused‑petitioners, whether it be of grievous or simple in nature, would attract the provisions of section 307, P.P.C. and the prohibitory clause of section 497(1), Cr.P.C. would come into play. According to him, all the accused‑petitioners have remained in abscondence from 19‑4‑1989 to 17‑9‑1989 and thus all of them are not entitled to bail on this score alone. Reference, in this context, was made to Awal Gul v. Zewar Khan (PLD 1985 SC 402), wherein their Lordships of the Supreme Court have declined to extend the concession of bail to a fugitive from law and Courts in the following words:‑ "It is now well‑established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well‑established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case‑‑‑the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)." 3. The proposition that abscondence of an accused would operate as an absolute bar against his plea of bail has not been approved in Mohammad Sadiq v. Sadiq (PLD 1985 SC 182), wherein it was observed by their Lordships of the Supreme Court that "notwithstanding abscondence, the accused might be released on bail for example, when the accused is a woman, a child or a sick and infirm person, or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so‑called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence" (Underlining is by me). 4. From the respective stands taken by the learned counsel for the parties, the following two propositions have emerged for determination:‑ "(1) Whether on consideration of material there were no reasonable grounds for believing that the petitioners herein had committed a non‑bailable offence but further inquiry into their guilt was called for; and (2) Whether abscondence attributed to the petitioners is satisfactorily explained by them so as to establish that in reality it did not amount to abscondence. 5. I have decided to refrain from making any observation on the proposition as to whether the petitioners are not vicariously liable for the murder of Ghulam Jan deceased and further that whether the occurrence disclosed in the F.I.R. was one transaction or more. Suffice it to say at this stage that even in the version of the prosecution disclosed in the F.I.R. the effective shots have been specifically attributed to Zarwali and Zahid Ali petitioners, whereas Hazrat Ali and Mirzali have been assigned an ineffective role. It would be for the trial Court to determine the culpability of the petitioners for the offences with which they have been charged, particularly the one falling within the mischief of section 149, P.P.C. This fact would show that apparently there exist no reasonable grounds for believing that Hazrat Ali and Mirzali, petitioners herein, have committed the offences with which they have been charged and that there are sufficient grounds to enquire into their guilt under subsection (2) of section 497, Cr.P.C. In so far as Zarwali and Zahid Ali, petitioners, are concerned, they have been clearly implicated for effective shots causing two fire‑arm injuries to the complainant apart from their abscondence for over six months and effective role B in the firing at Ghulam Jan deceased. They are, therefore, not entitled to the concession of bail. 6. In the circumstances narrated above, it appeared to be a case of further inquiry qua Hazrat Ali and Mirzali petitioners within the meaning of subsection C 2) of section 497, Cr.P.C. Accordingly, I admit both of them to bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Sub -Divisional Magistrate, Lakhi. The plea of bail raised on behalf of Zarwali and Zahid Ali, petitioners, is, however, not entertained. 7. By a short order dated 28‑1‑1990, I have allowed bail to Hazrat Ali and Mirzali petitioners. The above are the reasons for doing so. N.H.Q./1188/P Order accordingly.