1999 P Cr (PLP)

The instant bail cancellation petition filed by the widow of deceased Amir Rehman against the order of Additional Sessions Judge Bannu, dated 15‑11‑1997 whereby Noor Nawaz alias Noor Niaz was allowed bail in Case F.I.R. No.234 registered on 23‑3‑1993 for committing an offence punishable under section 302/34, P.P.C. of Police Station Saddar Bannu.

2. Facts in brief are that Rabnawaz complainant (now dead) has lodged the report regarding the murder of his son Amir Rehman, wherein Aurangzeb, Jehanzeh brother interest and accused/respondent Noor Nawaz were charged for the said murder, as per contents of F.I.R. Aurangzeb was attributed the role of command to the co‑accused to kill deceased while Jahenzeb and Noor Nawaz were attributed the role of effective faring through pistols at the deceased. The motive behind the occurrence was disclosed that few days before the occurrence the accused had beaten the deceased.

3. All the accused nominated in the F.I.R. absconded immediately after the occurrence and they were proceeded under section 87/204, Cr.P.C. A challan under section 512 was submitted on 28‑5‑1993. Subsequently Aurangzeb accused was arrested on 3‑4‑1994 and he was put on trial. At the conclusion of trial he was granted acquittal by giving him the benefit of doubts in the prosecution case vide order, dated 23‑2‑1995 of the Additional Sessions Judge, Bannu in Sessions Case No.50 of 1994.

4. Jehanzeb accused is still absconder in the case while Noor Nawaz accused/respondent was arrested on 26‑10‑1997. On his arrest he applied for bail to the Court of Additional Sessions Judge, Bannu, which was allowed to him vide impugned order referred to above.

5. The learned counsel for the widow of deceased contended that the accused/respondent is charged for effective firing at the deceased in broad daylight. There is an ocular evidence supported by the medico‑legal report and recoveries of two empties of .30 bore pistols from the spot. The conduct of accused/respondent who remained absconder for about 4 years and 7 months also corroborate the prosecution case. Also contended that the learned Additional Sessions Judge has given the benefit of judgment in the case of acquitted co accused Aurangzeb and has ignored the unexplained prolong abscondance of the accused/respondent and has over looked the role attributed to the accused/respondent.

6. Malik Hamesh Gul, Advocate, learned counsel for the State supported the contentions of the learned counsel for the complainant party and argued that the accused/respondent made himself available for the arrest after the acquittal of the co‑accused Aurangzeb. The abscondance of accused/respondent has damaged the prosecution case.

7. The learned counsel for the accused/respondent contended that once a bail granted could not be lightly be interfered unless it is shown that the bail granting order is perverse or the accused has misused the concession of bail. Further submitted, that the prosecution evidence already disbelieved in the case of acquitted accused Aurangzeb could not be improved in the trial of the accused/respondent. Added that the motive has been attributed to the co‑accused and there was no motive for the accused/respondent to commit the murder of deceased Amir Rehman. Further submitted, that accused/respondent was a Junior Clerk in C&W Department and due to involvement in the present case he has already suffered a lot. Further submitted, that the case against accused/respondent is of further enquiry as there is a conflict between the medical evidence and the ocular evidence of ground that the inlet wounds 1.5 and 8 on the person of deceased were found with blackening marks while the accused were shown at a distance of two paces and the victim could not receive an injury with blackening marks from such a distance if fired through a pistol.

8. I have heard the learned counsel for the parties and have gone through the record.

9. Admittedly, the accused/respondent and the absconding accused Jehanzeb are charged for effective firing at the deceased Amir Rehman through pistol. As per medical report the deceased had received a number of inlet wounds. During the spot inspection two empties of .30 bore pistol were also recovered from the place closed to the point where from the accused/respondent allegedly fired at the deceased. The accused/respondent remained absconder for about four years and seven months with no plausible explanation. The learned Additional Sessions Judge has considered the delay in lodging the F.I.R., the relationship of the eye‑witness with the deceased, suspected the presence of Abdul Nawaz, an eye‑witness on the ground that he did not accompany dead body to the Hospital, one of the injury was not caused through fire‑arm and the blackening around some of the injuries on the person of deceased and non. recovery of weapons of crime from the accused/respondent.

10. The impugned bail granting order is perverse because it amounts to rejection of the prosecution case in the disposal of bail application which is not permissible in law. The Courts can make a tentative assessment of the available record to arrive at a conclusion that where reasonable grounds exist to believe that the accused petitioner has committed the alleged offence but deep appreciation of the prosecution case is not permissible under the law for disposal of "bail petition". Since the learned Additional Sessions Judge has discussed the prosecution case in a great depth and has not considered the prima facie nature of the prosecution case, therefore, in my view, the impugned order is perverse and the accused/respondent is prima facie reasonably connected/involved in the commission of offence which is punishable for Qisas or Diyat amounting to transportation for life.

11. The accused/respondent in his bail petition before the lower Court has conceded that he though aware of the charge could not surrender due to fear and torture of police and other miseries likely to be faced by him. He has also alleged plea of alibi. Had he been falsely charged, he should have surrendered before the Investigating Officer and could produce official record of his attendance at the relevant time. This is also a fact that though a civil servant in C&W Department he opted of absconsion at the cost of his service which is unusual for an innocent person. He made himself available only when Aufangzeb a co‑accused was granted acquittal. In these circumstances, accused/respondent could not be granted the benefit of bail as bonus for his absconsion. The prosecution has failed to effect the recovery of crime pistol due to abscondance of the accused/respondent immediately after the occurrence and it has been observed in Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and Irshad and others v. The State 1996 PCr.LJ 719 that absconder loses some of normal rights granted by procedural and substantive law and noticeable abscondance disentitles the absconder to the concession of bail notwithstanding merits of the case.

12. In the present day society, it has been noticed that in a number of cases the culprits abscond after the occurrence and surrender in peace meal. An accused having been attributed a lesser role in the commission of offence always surrenders first and on getting acquittal, paves way for other co‑accused having been assigned majored role, as happened in the present case. By adopting such techniques the culprits pressurise the victim's family to patch up the matter with them or pursuade influence or threaten not to depose against them. Due to fear even the close relative feel hesitation in deposition in Courts against fugitive from law and fugitive from law always succeeds in getting benefit from his such conduct, resultantly, people never come forward in the help of those who are subjected to aggression and number of crimes are increasing day by day and people are losing confidence over Courts of justice. The tendency to avoid arrest is needed to be checked and fugitive from the law, who deliberately avoids to face the investigation should not be granted bail liberally.

13. There is another aspect of the present case the bail petition was moved before the Additional Sessions Judge on original side without applying to the Magistrate for bail, although the Court of Sessions can only take cognizance under section 193 if the case is sent by the Magistrate.

14. In these circumstances of the case, I set aside the impugned order, dated 15‑11‑1997 and the bail granted to him is recalled. The accused/respondent, present in Court, is taken into custody and be produced before the Trial Court on 1‑4‑1998.

15. The challan against the accused/respondent has already been prepared. The prosecution is directed to ensure the submission of challan to the Court of competent jurisdiction forthwith so that it should be available before Trial Court on 1‑4‑1998 and the Trial Court is directed to expeditiously dispose of the case against the accused/respondent within period of three months. Q. M. H. /M. A. K./116/P Order accordingly.