2012 PLP 949 (YLR)

ATTAULLAH KHAN, J.

Through this application filed under section 497, Cr.P.C, Azam Khan, accused/ petitioner herein, seeks his release on bail in case F.I.R. No.14 dated 3-2-1993 under sections 302/307/109/34, P.P.C. of police Station Levy Post Dargai.

2. According to the F.I.R. lodged by the complainant Mst.Dilshad, widow of Fazal Hassan, the prosecution case is to the effect that on 8-2-1993 at 1925 hours, she along with her daughter named Bakht Zeha, aged about 18 years, when came out of their house after bringing wood therein, in the meanwhile at about 1745 hours, accused Sher Azam and Azam, sons of Sher Hassan and Fazal Hassan son of Sher Azam, duly armed with kalashnikovs, emerged on the scene and on the command of accused Sher Azam and Fazal Hassan, accused Azam fired at them with which her daughter Bakht Zeba was got injured and died on the spot while she (the complainant) escaped unhurt, whereafter the accused decamped from the spot. Motive for the offence was given to be that the deceased Bakht Zeba was given in Nikah some four years before to accused Fazal Hassan but for the last about two months relations between the spouse had become strained due to which the deceased was living with her.

3. Learned counsel for the petitioner argued that the petitioner was granted bail vide order dated 29-11-1994 by a competent Court of law, whereafter he went to Kuwait and during his absence his bail was recalled on 22-5-1995 without giving him any notice as required under the law. He submitted that during the trial of co-accused Sher Azam, one Zorawar Shah was examined as P.W.1 in the trial Court, i.e. Additional Sessions Judge Malakand at Dargai, but since there was nothing in his evidence, therefore, the said co-accused Sher Azam was acquitted under section 265-K, Cr.P.C. vide order dated 20-6-1995. The learned counsel for the petitioner submitted that since the same evidence would be recorded in the case of the present petitioner, therefore, probably it might result in the same manner and thus on this count too he is entitled to bail. The learned counsel further argued that the only evidence on file against the petitioner is his alleged absconsion, which alone cannot be considered against him because there is no other evidence available on record to connect him with the commission of the crime. His submission was that the only alleged eye-witness, i.e. Mst. Dilshad complainant has also been murdered. In support of his contentions, the learned counsel placed reliance on the case-law reported as 2005 PCr.LJ 352, 1991 SCMR 322, PLD 2009 Peshawar-20, 2009 SCMR 803 and PLD 2008 Supreme Court 298.

4. On the other hand, learned counsel for the complainant submitted that the learned counsel for the petitioner has touched the main evidence which amounts to deep appreciation which is not permissible under the law at this bail stage. He further submitted that the abscondence of the accused/petitioner is wilful. In support of the submissions, he relied upon the judgments reported in PLJ 2011 Criminal Cases) Peshawar 406 and PLD 1981 Supreme Court 93.

5. The learned Additional Advocate-General representing the State adopted the arguments of the learned counsel for the complainant. 6. 1 have carefully gone through the record and considered the submissions of the learned counsel for the parties.

7. It appears from the record that the accused/petitioner was apprehended in this case by the police and was granted bail on 29-4-1993 by the Additional Commissioner Malakand exercising powers of a competent Court of law under the PATA Regulation. That bail was granted on merits. The record further reveals that in due course of time, challan was put in Court and one of the accused, namely, Fazal Hassan was murdered, therefore, proceedings against stood abated on 7-3-1995. As the accused/ petitioner was in Kuwait, therefore, the Court granted time to his sureties to produce him before the Court, but when they failed to do, his bail was cancelled vide order dated 22-5-1995.

8. Learned counsel for the petitioner is of the opinion that the said bail cancellation order dated 22-5-1995 is against law because no efforts were made by the Court for arrest of the accused/ petitioner nor any notice was served upon him. According to aim, his such absence could not be termed as wilful absconscion. He relied upon 1994 PCr.LJ 1335 9. 1 have perused the said judgment wherein it has been held as under:- "It may be mentioned that the' incident took place in the year 1982 whereas the applicant has applied for bail now. At the very outset the question arose that the applicant was absconder and, therefore, he was not entitled for concession of any bail. In this regard, the learned counsel submitted that it is now a well-settled law that if proceedings against the accused have not been taken under sections 87/88, Cr.P.C., such a person cannot be declared as an absconder. This question arose at the time of interim bail and, therefore, it became necessary to call for the R&P of the case. The R&P of the case was called and it appeared that after examining the process-server on 25-10-1986 an order was passed under section 512, Cr.P.C. in which it was mentioned that warrants under sections 87 and 88, Cr.P.C. may also be issued. Two days thereafter on 27-10-1986 after recording the statement of S.H.O. Muhammad Usman, the case was ordered to be kept on dormant file. As such the proclamation under section 87 and the subsequent action under section 88 never took place with the result that the applicant could not be declared as an absconder".

10. If we examine the case in hand in the light of above observations, we would reach to the conclusion that facts of both the cases are the same.

11. In the present case, no proclamation under section 87, Cr.P.C. was issued. Similarly, proceedings under section 88, Cr.P.C. were also not initiated. In absence of compliance of the said two sections, the abscondence of the accused/ petitioner is still doubtful.

12. Similar view was taken in the case reported in 1990 PCr.LJ 2055.

13. As discussed above, the only solitary witness in this case was the complainant, namely, Mst. Dilshad. It is admitted that the said Mst. Dilshad complainant has also been murdered and in this way the ocular evidence is not available. The only evidence relevant in this case could be of Zorawar Shah who was examined as P.W.1 in the trial Court against co-accused Sher Azam. The record reveals that the said witness was not believed by the trial Court, therefore, the said co-accused was acquitted under the provisions of section 265-K, Cr.P.C. This is the factual and legal situation about the ocular evidence in the case.

14. If the evidence of said Zorawar Shah is examined in the trial against the present petitioner, probably the same would be result as was in the case of acquitted co-accused Sher Azam. So we may safely conclude that at present there is no sufficient ocular testimony to connect the accused/petitioner with the commission of the offence.

15. The only circumstance available against the accused/petitioner is his alleged abscondence.

16. As already stated, his absence abroad is not an abscondence in legal sense, because the provisions of sections 87/88, Cr.P.C. were not pressed into service against him while declaring him absconder. Also no notice was served upon him for cancellation of his bail. For the sake of arguments, if we presume that the accused/ petitioner remained absconder, even then it would not affect his right of bail because no other material is available against him. We may rely upon 2008 PLD

298. The latest judgment is that of Haji Payo Khan v. Sher Daraz reported in 2009 SCMR

803. I also rely upon 1991 SCMR 320.

17. In the above reported cases, it has been unanimously held that it is not an absolute rule that a fugitive from law should not be enlarged on bail. There must be other evidence connecting the accused with the offence because abscondence at the most could be taken as corroborative piece of evidence and would not substitute for ocular evidence. Abscondence is not the conclusive proof of guilt unless other materials are available on record to connect him with the commission of the offence. For the sake of ready reference, I would reproduce observations made by the Apex Court in case reported in 2009 SCMR 803 as below:-- "Insofar as abscondence is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of the accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case. In the instant case, absconsion of the respondents has not been established. Sufficient material has been brought on record to prove that at the relevant time, accused/ respondents were not present in the village and were performing duty at the place of their respective postings, far away from the scene of occurrence".

18. As stated above, after the occurrence, the petitioner was apprehended and after some was released on bail by a Court of competent jurisdiction. Before commencement of trial, the petitioner went abroad and in his absence case was put in Court and thus he remained unaware of the proceedings. No notice was issued to him. So his absence is not wilful because he left country when he was not required.

19. This Court has also taken a similar view in the case reported in 2011 PLR 180, wherein it has been held that abscondence alone cannot be made a ground for with-holding bail to an accused if the case otherwise falls within the category of being of further inquiry.

20. As far as the arguments of the learned counsel for the complainant are concerned, the same are not relevant at this bail stage. He has relied upon the judgment of this Court reported in PLJ 2011 Cr.C (Peshawar) Page

407. I have perused the same but facts of the present case are altogether different from the aforesaid reported case. In the reported case, other materials connecting the accused/petitioner with the offence were available and, therefore, abscondence of the accused was considered. In the present case, as stated above, except the alleged abscondece, there is no other evidence available on file to connect him with the offence.

21. The upshot of the above discussion is that the only eye-witness/complainant has been murdered and not available. Even her statement has not been recorded in proceedings under section 512, Cr.P.C. The statement of I.O. would of be of no avail because his evidence (as P.W.1) has been disbelieved by the trial Court in the case of acquitted co-accused of the present petitioner. Thus no useful purpose would be served to keep the accused/petitioner behind the bars.

22. The result of my above discussion is that this application is allowed and the accused/petitioner is admitted to bail in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. H.B.T./231/P Bail granted.