2013 PLP 810 (MLD)

ROOH-UL-AMIN KHAN, J.

The accused/petitioner herein, after refusal of concession of bail by the forum below, in case F.I.R. No. 312 dated 9-9-1995 registered at Police Station Kabal, District Swat, under sections 302/34, P.P.C. and 19 A.A., seeks his release on bail as such.

2. As per F.I.R. the present accused/petitioner along with other co-accused were charged by Mst. Rahima (complainant) for the murder of her son Dost Muhammad.

3. Having heard the learned counsel for the parties and perusing the record it reveals, that the occurrence has taken place on 9-9-1995. Initially the bail before arrest application of the petitioner was accepted and his bail was confirmed on the basis of compromise vide order dated 24-6-1996. On completion of `challan' the trial was initiated, but the petitioner went in hiding and did not face trial. On completion of the trial, the co-accused was acquitted of the charge while the present petitioner, being absent, was declared proclaimed offender, vide order dated 28-4-2001. Ultimately, the petitioner was arrested on 26-9-2012 after long 'abscondence' of fifteen (15) years. Record reveals, that the petitioner has directly been charged by Mst. Rahima (complainant) for the murder of her son Dost Muhammad. The recovery of blood stained mud and thirteen (13) empties of 7.62 bore supports the version of prosecution. Admittedly, the occurrence has taken place on 9-9-1995; bail before arrest application of the petitioner was confirmed on 24-6-1996, while 'challan' against the petitioner was submitted on 12-8-1996 before the trial Court; he was declared proclaimed offender, vide order and judgment dated 28-4-2001. In this way accused remained absconder for about 15-years. It is by now, settled law, that fugitive from law and Courts loses some of his normal rights granted by the procedure as well as substantive law and the unexplained 'abscondence' of the accused/petitioner disentitled him to the concession of bail, not withstanding with the merits of the case. Wisdom is derived from the dictum of august Supreme Court of Pakistan in case of 'Awal Khan v. Zawar Khan and others' (PLD 1985 Supreme Court 402). The argument of the learned counsel for the petitioner, that on the same set of evidence the other co-accused has already been acquitted and there is no probability of the conviction of the petitioner on the same evidence, is un-persuasive. The judgment of acquittal of the co-accused shall bear no effect on the trial of present accused/petitioner. Under the criminal administration of justice, the evidence recorded in absence of an accused, could not be used for his conviction. Similarly, the same could also not be used for the benefit of that accused. In this case, I have noticed that the accused has remained guilty of deliberate, long and unexplained 'obscondence' and has surrendered himself only after the acquittal of co-accused. This type of conduct of the petitioner would be sufficient to disentitle him for the concession of bail, irrespective of the acquittal earned by the co-accused. In view of the afore-said discussion and material available on the record, I feel no hesitation, to dismiss the bail application of the petitioner. Hence, this bail application is dismissed accordingly. MWA/8/P Bail refused.