2002 P Cr (PLP)

‑‑‑‑S.497, First proviso‑‑‑Accused being of advance age or physically infirm was not a valid ground for grant of bail. Assadullah Khan Chamkani for Applicant. Ahmad Jan, Dy. A.‑G. for the State. Jamshid Khan and Shamsuddin for the Complainant. Date of hearing: 30th November, 2001. This order is proposed to dispose of Bail Application (Criminal Miscellaneous No.1255 of 2001) moved on behalf of the petitioners, involved with two others, in case F.I.R. No.411 registered at Police Station, Badaber on11‑5‑2000 under section 302/34, P.P.C. regarding an occurrence in a Bus in which Jan Gul and Amir Nawaz were shot to death.

2. The events which led to the present tragedy as narrated by the complainant Sherzada, are that on the day of occurrence i.e. 11‑5‑2000 at about 12‑15 hours, complainant was present in Badaber Bazaar alongwith his brother and sister to make purchases, when he was informed that an incident of firing had occurred in a Bus near the Petrol Pump of Niaz Muhammad situated on Main Road Badaber where a person has been fired to death. On receipt of this information, the complainant and his companions rushed to the spot and on reaching there found Jan Gul lying murdered. The complainant charged the petitioners and two sons of Khiyal Gul petitioner. The motive leading to the mishap was stated to be previous enmity between the two groups.

3. The petitioners submitted applications for grant of bail before the Judicial Magistrate, Peshawar and Additional Sessions Judge, Peshawar which were turned down vide orders, dated 9‑8‑2001 and 27‑9‑2001 respectively, which has given rise to the filing of the instant application.

4. Mr. Asadullah Khan Chamkani, Advocate for the petitioners in support of the bail application submitted that except the bare allegations in the F.I.R. prosecution is not in possession of any material to associate the petitioners with the guilt; that medical. evidence coupled with the site plan falsify the entire prosecution case; that there is an inordinate delay in lodging of F.I.R. which is sufficient to create doubt regarding genuineness of the prosecution case and that the petitioners are in jail since 24‑4‑2001 and they are no more required .for the purpose of investigation. Additionally, he contended that the petitioners are of advance age with physical infirmity and their participation in such‑like cases is highly doubtful.

5. Mr. Ahmad Jan, Deputy Advocate‑General for the State assisted by Jamshed Khan, Advocate for the complainant on the contrary opposed the bail application and contended that in view of the facts and circumstances of the case, concession of bail has been rightly declined to the petitioners and there is hardly any justification for this Court to intervene.

6. It is basic principle of law that bail is not to be refused as punishment merely on the allegation that a person has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity. In the instant case, admittedly the complainant is not an eye‑witness of the occurrence and he claims to have been informed about the incident in main Bazar Badaber and the source of information has not been disclosed but the fact cannot be lost sight of that two witnesses Parvez add Mohsin in their statements recorded under section 161, Cr.P.C. immediately after the occurrence have fully charged the petitioners for the murder of Jan Gul deceased and a stranger namely Amir Nawaz, who succumbed to his injuries and expired in the hospital on 13‑5‑2000.

7. The crime in question having taken place on 11‑5‑2000, the petitioners were arrested on 24‑4‑2001. It is settled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder to the concession of bail notwithstanding the merits of the case.

8. It is a settled principle of law that at the bail granting stage the material available on the record is to be sifted through in order to establish whether prima facie the accused person before the Court can be connected to the crime in question, and hence no detail inquiry is to be conducted by the Court as held in Gul Hassan alias Hassan and another v. The State 2001 PCr.LJ 1491. In this case certain points have been agitated by the learned counsel for the petitioners which essentially touch the merits of the case. I regret such submissions cannot be attended to at bail stage. It is not denied that deeper appreciation or evaluation of material at the stage of bail is not permissible for the grant or refusal of bail and only tentative assessment is to be made.

9. One of the ground agitated in support of the bail application is that the petitioners are of advance age and due to physical infirmity and incapability they cannot be expected to participate in such‑like crime. The submission is equally without substance. The mere 'fact that the petitioners are of advance age or physical infirm, constitutes no valid ground for grant of bail.

10. It is not denied that in cases specially in bail applications, every case has got its own circumstances and facts and the bails are granted under those particular circumstances and except broad principles laid down by the superior Courts no other example is attracted in the present case and cannot be considered to be a deciding factors for the purpose of disposing of the bail application. The case‑law cited on behalf of the petitioners is distinguishable and speaks of the different situation. It needs no separate discussion.

11. In view of the direct charge supported by the eye‑witnesses coupled with noticeable abscondence sufficiently provide reasonable grounds to believe that the petitioners are guilty of an offence charged with which falls within the prohibitory clause of section 497, Cr.P.C. The bail application fails which is hereby dismissed. N.H.Q./457/P Bail refused: