P L D 1983 Peshawar 232 (PLP)

Jehanzeb Rahim for Petitioner: Inamullah Khan for Respondents Nos. 1 to

3. Mian Muhammad Ajmal, Law Officer for the State. Date of hearing : 7th May, 1983. By F. I. R. No. 36 dated 14‑6‑1981, accused‑respondent's alongwith their co‑accused seven in number (since acquitted) were charged for the formation of unlawful assembly armed with deadly weapons‑ committing rioting and double murder in prosecution of common object by firing at the deceased at 10‑30 hours, the deceased sustaining fire‑arm injuries in a total number of ten. Co‑accused faced trial and the ocular evidence in the testimonies of Saifur Rehman complainant and Tamash Khan, P. W. was found not confidence inspiring and further not independently corroborated, as a result, the co‑accused were extended benefit of doubt and acquitted. There was ordered the issue of perpetual non‑bailable warrants of arrest against the accused‑respondents and inclusion of their names in the list of proclaimed offenders by, the same judgment dated 9‑10‑1982.

2. Acused‑respondents applied for bail before' arrest on 11‑12‑1982 alleging that there was no oral or circumstantial evidence against them and that the case against them was doubtful and based on mala fide. They further stated that their co‑accused have since been acquitted of the charges by the Additional Sessions Judge, copy of judgment enclosed. They were granted ad interim bail which was later on confirmed by the learned Sessions Judge, Malakand, Camp Peshawar by his order dated 23‑1‑1983. There was referred a case‑law contained in 1978 S C M R 287, 1979 S C M R 90, P L D 1979 Pesh. 16, P L D 1981 Kar. 672 and P L D 1969 S C

89. In the presence of the case‑law cited above, the learned Sessions Judge still deemed it proper to release the accused‑respondents on bail after admitting the position that the evidence recorded during the trial of co‑accused cannot be read as evidence against the accused‑respondents for the purpose of bail but that the fact of acquittal of the co‑accused can be taken into consideration to release the accused‑respondents on bail.

3. I proceed to discuss the case‑law cited before the learned Sessions Judge with a purpose to determine if the learned Sessions Judge has properly applied his mind in granting bail to the accused‑respondents. In 1978 S C M R 287 petitioner was allowed bail by the Additional Sessions Judge mainly on the ground that his co‑accused bad been acquitted. The High Court had cancelled the bail and on appeal before the Supreme Court, the contention that since the alleged eye‑witnesses of the occurrence had already been. disbelieved at the trial of the co‑accused, the petitioner was entitled to the benefit of bail in view of the prosecution evidence being of doubtful duality. The Supreme Court did not approve of the contention and dismissed the petition. It was held that findings of Sessions Court in trial against co‑accused were not relevant in petitioner's own trial and the quality of evidence in petitioner's trial was to be judged independently of the previous findings. In 1979 S C M R 90, a co‑accused was acquitted at the trial. State's appeal against the acquittal also failed. Accused surrendered his arrest after remaining in abscondence for four years. Sessions Judge granted him bail principally on the ground. of the acquittal of co‑accused as there was scope for further enquiry. High Court cancelled the bail and observed that acquittal of co‑accused was not a valid reason to allow him bail. Supreme Court also dismissed his petition. In P L D 1979 Pesh. 16, accused petitioner remaining outlaw surrendered his arrest after the acquittal of co‑accused. He asked for the concession of bail as the same evidence has not been believed qua co‑accused and be stood exonerated of the charge of murder. Sessions Judge rejected his application. High Court also rejected his application for bail and observed that his trial will be held independently of the previous trial. It was further observed that since the accused had remained outlaw after the occurrence for about eight years, he was not entitled to bail. In P L D 1981 Kar. 672, the accused remained absconder and surrendered his arrest after the acquittal of co‑accused. His abscondence teas treated as a corroboration of ocular evidence and death sentence awarded to the accused was confirmed. In P L D 1969 S C 89, the contention was not accepted that since the two accused have been acquitted, conviction of remaining two accused on the same evidence could not be maintained. The Court upheld the conviction as there has been a corroboration of the ocular evidence in case of the two accused having absconded after the occurrence.

4. It is regretted that in view of the case‑law discussed above, the learned Sessions Judge had still deemed it proper to grant bail to the accused‑respondents. He was seized of a case of pre‑arrest bail. The rule is that pre‑arrest bail will be granted where prosecution is motivated by malice to cause irreparable injury to a citizen's reputation or liberty by his, arrest. 1981 S C M R 1139 lays down that accused in order to justify grant of pre‑arrest bail must show apprehension of his arrest on account of ulterio motives. Pre‑arrest bail is not acknowledged a rule in criminal cases. In the cited case, the Supreme Court had cancelled the pre‑arrest bail granted by the High Court. The above view has been further confirmed by the Supreme Court after exhaustive scrutiny of the case‑law on the subject in Murad Khan v. Fazal‑e‑Subhan arid another (P L D 1983 S C 82).

5. As far merits are concerned, accused‑respondents have been directly charged in the F. I. R. for effective firing at the deceased along there co‑accused (since acquitted) and the number of injuries on the deceased are commensurate with the possible involvement of the accused‑respondents in the commission of the offence. They went in abscondence soon after the occurrence and surrendered their arrest after 18 months when the trial of the co‑accused ended in acquittal. No ulterior motive can be ascribed to the prosecution in the arrest of the accused as they stand duly charged in the' F. I. R. as well in the evidence of the eye‑witnesses at the trial of, the Co-accused.

6. May it be stated that perk ns charged rightly or wrongly for capital offence generally disappear in natural course in the first instance. However, accused charged for vicarious liability or otherwise considering themselve innocent subsequently surrender their arrest to face trial while their co‑accused C conscious of their guilt continue absconding awaiting result of the trial and surrender only when the trial of co‑accused entails in acquittal. Such accused should not be readily favoured with the concession of bail, moreso in case o pre‑arrest bail.

7. In view of what has been stated above, this application is accepted and the bail of the accused‑respondents is hereby cancelled. They are present in Court, taken into custody and sent to judicial lock‑up. M. Y. H. Application accepted.