P L D 1992 Peshawar 74 (PLP)

The petitioner herein, has approached this Court for his release on bail in a case registered against him under F.I.R. No.749 dated 4‑12‑1988 under section 302/34, P.P.C. He applied for bail in the Court of MIC, Mansehra who allowed him bail vide his order dated 27‑5‑1991. The complainant party thereafter filed an application for cancellation of his bail in the Court of Sessions Judge, Mansehra who while accepting the same recalled/cancelled the bail vide his order dated 18‑9‑1991. Hence the present petition.

2. The brief facts are that on 4‑12‑1988 the complainant alongwith Changez were going to Mansehra on foot. When they reached the place known as `Thathi', at about 10 a.m., a Suzuki came from `Khawari' side. On their signal it stopped. They boarded the Suzuki where 6/7 persons were already sitting. From amongst the passengers, Sajjad, accused‑petitioner, caught hold of Changez and Ali Asghar fired at him causing his death at the spot. When the complainant intervened, Sajjad gave him fist blow. Thereafter both the accused decamped from the spot.

3. The learned counsel for the petitioner contended that the petitioner has been assigned the role of catching hold of the deceased, and no other overt act has been attributed to him. He further contended that the petitioner did not remain fugitive from law but made himself scarce only due to the fear of police torture. He submitted that the petitioner surrendered himself before the police. He further contended that the petitioner who allegedly caught hold of the victim at the time of firing did not receive any injury and the story apparently seems to be unnatural and unbelievable. He further contended that the occurrence is alleged to have taken place inside the Suzuki. but there is no blackening or charring marks around the injuries of the deceased because in the Suzuki the firing could only be made from very close range. The learned counsel also submitted that the petitioner was charged in a murder case previously but he was acquitted by the learned Sessions Judge, Mansehra under section 265‑K, Cr.P.C. on 8‑1‑1987 and it was due to this previous enmity that he had been again charged. He submitted that as no overt act has been ascribed to the petitioner, therefore, he is entitled to bail.

4. The learned counsel for the complainant while opposing the bail application contended that the petitioner has been charged in a promptly lodged report by name wherein he has been attributed a specific role of catching hold of the deceased. He contended that after the acquittal of the accused in earlier case, the State had filed an appeal against acquittal of the petitioner which is still pending before the High Court. He submitted that the State appeal was filed on 12‑4‑1988 and was fixed before the Court on 26‑4‑1988 on which date the learned Division Bench was pleased to order to send for the record of the trial Court. On 12‑9‑1988,the case was admitted to full hearing and bailable warrants of arrest were issued against the petitioner and other accused. On 24‑9‑1990 bailable warrants against the accused were. issued again, as they were absent, and show‑cause notices were also issued to the sureties. On 25‑11‑1990 non‑bailable warrants of arrest were issued against. the petitioner. However, on 2‑9‑1991 his application for cancellation on non bailable warrants was allowed and the petitioner was admitted to bail. The learned counsel for the complainant contended that the accused‑petitioner was declared proclaimed offender in the instant case and he also flouted the order of the High Court in appeal against acquittal against him.

5. The learned State counsel also opposed the bail application and submitted that the petitioner remained fugitive from law without any plausible explanation and keeping in view his conduct he is not entitled to be released on bail.

6. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.

7. The occurrence took place on 4‑12‑1988 and the accused was arrested on 21‑5‑1991. In the meantime warrants under section 204, Cr.P.C. and thereafter proceedings under section 87/88, Cr.P.C. were initiated against him and he was declared proclaimed offender. The petitioner was acquitted on 8‑12‑1987 in case FIR No.608/84 in which he alongwith the other three accused was charged for the murder of the brother of deceased Changez. The High Court had issued bailable warrants twice in the appeal against acquittal and then non‑bailable warrants were issued against him. Thereafter he filed an application 2‑9‑1991 in the Court for the cancellation of non‑bailable warrants. He was arrested in this case on 21‑5‑1991. He remained fugitive from law for a long time and after his arrest when he was examined under section 161, Cr.P.C., he stated that he had gone to Karachi out of fear of police torture, which is not convincing and acceptable. The petitioner has been directly charged in the most promptly lodged report for the occurrence which has taken place in the broad daylight. The witnesses cited in the F.I.R. have also charged him for having effectively participated in the commission of the offence and there is noticeable long abscondence which disentitles him to the concession of bail notwithstanding the merits of the case. Moreso, his role of catching hold of the deceased amounts to abetment, therefore, there being a prima facie case against the petitioner, his application for bail is rejected. N.H.Q./1333/P Bail refused.