2014 PLP 2721 (YLR)

MUHAMMAD DAUD KHAN, J.

Having unsuccessful in obtaining bail from the two courts below, petitioner Abdullah Khan, who is accused in case F.I.R. No.234, dated 10-5-2006, under sections 302/324/34 P.P.C. of Police Station Saddar, Bannu has come to this Court for the same relief

2. The allegations against the accused/ petitioner, as per F.I.R, referred to above, are that on 10-5-2006 at 1835 hours, the complainant Muhammad Ayaz Khan brought the deadbodies of his son namely, Jalil Khan and his son-in-law namely, Umer Khan to the Emergency Room of DHQ Hospital, Bannu with the help of his grandson namely Inamullah and made a report. He alleged that on the day of occurrence at Aser Vela he along with his son Jalil Khan, his son-in-law Umer Khan and grandson Inamullah started to Kotka Zabta Khan for threshing the crop and when at 18.00 hours they reached Lochi Chowk of his village, saw that accused Abdur Rehman alias Numan (since acquitted) present accused/petitioner Abdullah armed with Kalashnikovs and co-accused Iqbal Khan (since acquitted) armed with Pistol .30 bore, were present in Veranda of Chowk. As soon they reached near them all the three accused started firing at them with their respective weapons with the intent to commit their Qatl-e-Amd as a result of firing his son Jalil Khan and his son-in-law Umer Khan were hit and fell down. They being empty handed, could do nothing. After decamping the accused from the spot when they attended Jalil Khan and Umer Khan, they both were by then expired. Motive for the occurrence, as stated by the complainant in his report, was of beating between accused Abdur Rehman and his son Saweed Rehman. The complainant charged all the three accused for the murder of his son Jalil Khan and his son-in-law Umer Khan and also for ineffective firing at him and his grandson Inamullah.

3. Learned counsel for the accused/petitioner argued that it is a case of two versions one reported in the instant case, whereas the other in cross case F.I.R. No. 235, which was registered on the report of co-accused Abdur Rehman, who received injury in the incident. He went on to say that site plan does not support the complainant's version. He further argued that there is no independent evidence against the accused/petitioner. He lastly argued that co-accused Abdur Rehman alias Noman and Iqbal have been acquitted by not relying on the evidence by the august Supreme Court vide judgment dated 14-4-2014, hence the case of present accused/petitioner comes within the ambit of further inquiry.

4. As against that learned Addl: AG for the State vehemently rebutted the arguments advanced by learned counsel for the parties that accused/ petitioner has been directly charged in the first information report. Ocular account and medico legal evidence support the complainant version. The offence for which the accused/ petitioner has been charged with falls within the prohibitory clause of section 497, Cr.P.C. In the Cross Case F.I.R. No. 235 the accused/ complainant Abdur Rehman alias Noman charged five persons for ineffective firing, whereas in the instant case, three persons including the present accused/petitioner have been charged for causing murder of two persons. He lastly argued that the accused/ petitioner after commission of offence went into hiding, remained absconder for about eight years and waiting for the result of co-accused, Noman and Iqbal, who were acquitted by the august Supreme Court on 14-4-2014, whereas accused/petitioner was arrested on 17-5-2014.

5. From the complainant side, respondent No.2 appeared and stated that he along with respondents Nos. 3 and 4 being destitute cannot afford private counsel, however, they relied on Addl: A.G. Hence, I have heard arguments of learned counsel for the petitioner, learned Addl: A.G for the State and gone through the record with their valuable assistance.

6. Perusal of the F.I.R. divulges that the occurrence took place on 10-5-2006 at 1800 hours, whereas report has promptly been lodged at 1835 hours. Accused/ petitioner is directly charged in the F.I.R. for murder of deceased Jalil Khan and Umer Khan in the first information report. The complainant Muhammad Ayaz Khan is father of deceased Jalil Khan and father-in-law of deceased Umer Khan. A part from the complainant, his grandson Inam Khan has witnessed the occurrence. In the first information report at the time of occurrence the accused/petitioner has been shown having Kalashnikov in his hands. Whereas twelve crime empties of 7.62 bore were recovered from the spot from the place of accused. Both the deceased have received multiple firearm injuries, hence medical report is in consonance with the ocular evidence. Site plan, recovery of blood-stained garments of deceased, two spent bullets from the place of deceased Umer Khan, 12 empties of 7.62 bore from the places of accused and blood-stained earth from the place of both the deceased also supplement the case of prosecution. On tentative assessment of the evidence available on record, reasonable grounds exist which prima facie connect the accused/petitioner with the commission of offence and punishment of which falls within the restrictive limb of section 497, Cr.P.C.

7. Admittedly and as is evident from the record accused/petitioner remained absconder after the occurrence for a considerable long period for about eight years and after acquittal of his co-accused, he surrendered himself, prima facie it appears that the petitioner/accused was waiting for the acquittal of his co-accused. If, in the attending circumstances of the case, he is granted bail merely due to acquittal of co-accused, then most of the accused would remain fugitive from law during disposal of the case of their co-accused. Wisdom is derived from a case law "Atlas Khan v. Mazamullah Khan and another" (1989 PCr.LJ 2044 Peshawar), where it is held that the accused who absconded after the occurrence for noticeable period, would not be invariably entitled to bail merely because his co-accused had been acquitted in the case.

8. Moreover, the evidence recorded in absence of accused/ petitioner cannot be taken into consideration neither at bail stage nor during trial, as the fate of accused/ petitioner would be decided on the evidence recoded in his presence. In this respect case of "Sardar v. State" (PLD 1979 Peshawar 16) can favourably be reproduced as below:-- "Accused/petitioner remaining outlaw after occurrence for about eight years and his trial to be held independently of previous trial resulting in acquittal of his co-accused. Contention that other accused in case having been acquitted and evidence being same in both cases, petitioner exonerated from charge of murder. Held. Not correct. Acceptance of contention amounts to examining of witnesses in petitioner's case as a matter of mere formality or there being no need to examine such witnesses for reason of such evidence having already been taken into consideration in previous case and such course not permissible in law. Bail application rejected."

9. For the aforesaid reasons, petitioner is not found entitled to the concession of bail. However, prosecution is directed to submit challan within a week, positively, and the trial court shall conclude the trial within a period of two months, if not earlier than that.

10. Before parting with the order it is directed that any observations made in this order are tentative in nature and should not prejudice the proceeding before the learned trial court, where the case be decided on its merits after recording of the evidence. ARK/389/P Bail refused.