2003 PLP 84 (YLR)

Date of hearing: 27th September, 2002. Zarawar Khan petitioner, was arrested on 1‑7‑2002 on account of his involvement in case F.I.R. No.59 registered at Police Station, Kalkot, District Dir on 26‑12‑2000 against the petitioner and two others for offences under section 324/34 of Pakistan Penal Code. The petitioner is accused of having on 26‑12‑2000 at 15‑45 hours near the house of Hazrat Wali, distant 25/26 kilometres from the police station, caused fire‑arm injury to Shifauddin complainant over land dispute.

2. The petitioner applied for grant of bail which was declined through order dated 20‑7‑2002 of learned Sessions Judge/Zilla Qazi, Dir.

3. By moving instant application, the petitioner seeks bail on the ground that he has been falsely and maliciously involved in the case and that keeping in view, the nature of alleged injury and the implication of three persons and the allegation of single fire shot, the case does not fall in the ambit of attempt to murder. Accordingly, it is urged that the petitioner was not at his home village when the case was registered and he was at Karachi in connection with labour. The ground of sickness i.e. elevated blood pressure has also been taken in support of the bail application. The following cases were cited in support of the contentions:‑‑ (i) Muhammad Salim v. The State 2001 MLD 681, (ii) Qudratullah Khan v. The State and another 1999 YLR 2108, (iii) Salim Khan v. The State 1999 PCr. LJ 140.

4. Controverting the arguments addressed on behalf of the petitioner, Malik Muhammad Akhtar, Advocate learned State Counsel, opposed the bail application and stressed with vehemence that the petitioner is directly nominated in the report for the commission of crime and the Court below has exercised discretion and refused to grant bail for valid reasons and thus the impugned order is unexceptional.

5. It is not a rule of law that in each and every case, which is not punishable with death, imprisonment for life, or ten years, bail must be granted to an accused without considering the gravity of offence. The A bail is granted or refused keeping in view the facts and circumstances of the case and making tentative assessment of evidence. At the stage of bail and before recording of evidence in the trial Court, only tentative assessment is to be made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice that case of one party or the other.

6. In the instant case, the petitioner is one of the accused persons directly charged in the promptly lodged report for causing fire arm injury to the complainant with a kalashnikov. The medical evidence and two witnesses of the spot fully support the charge. The occurrence in question having taken place on 26‑12‑2000 it was on 1‑7‑2002 when the petitioner was arrested. He remained in hiding for more than one year. It needs no reiteration that in proper cases, even at the trial abscondence can be treated as a very important piece of evidence showing the conduct of the accused. It is f also a well‑established law that a fugitive from law and Courts loses, some of the normal rights granted by the procedural as also substantial law. Unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case. The accused person cannot seek a reward for such a conduct in becoming fugitive from law. Awal Gul v. Zarwara Khan and others PLD 1985 SC 402 and Kh. Azhar Hussain and another v. The State 1983 SCMR 978.

7. The plea of alibi has also been taken in support of the bail application and it is submitted that at the relevant time the petitioner was at Karachi in order to earn livelihood. This ground cannot be pressed into service at this stage. It is needless to comment that the alleged theory of alibi has D still to stand the test of scrutiny on the basis of evidence. I have no intention of recording any finding as to the truth or otherwise of the plea of alibi, as that is the function of the trial Court. Malik Muhammad Shaheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829 and Bahadur v. Muhammad Latif and others 1987 SCMR 788.

8. Concluding the arguments, learned counsel for the petitioner maintained that the petitioner is suffering from elevated blood pressure and his health is likely to deteriorate in jail in case he is not extended the facility of bail. There is nothing on record in support of the contention. The mere fact that the petitioner is a patient of blood pressure or he is suffering from any other infirmity, by itself is not sufficient for grant of bail if otherwise his case is not found fit for his release on bail.

9. Having regard to the facts and circumstances of the case, I find that there is sufficient evidence against the petitioner to implicate him with the guilt and there are reasonable grounds to believe that the petitioner is guilty of the offence covered by the prohibitory clause of section 497(1), Cr.P.C. The application fails and bail is refused.

10. The observations made above are tentative in nature and relate to the order in hand. N.H.Q./622/P Bail refused.