2011 PLP 1611 (YLR)

ATTAULLAH KHAN J.

Neel Shah, accused/petitioner, has filed this application for his release on bail in case F.I.R. No.69 dated 1-10-2003 under sections 302/324/148/149, P.P.C. of Police Station Daraban, District D.I. Khan.

2. According to the F.I.R. lodged by Johar Khan complainant, Neel Shah petitioner in furtherance of common object of other co-accused has committed qatl-e-amd of Gul Bat Khan deceased by firearms over the motive of previous blood-feud enmity.

3. Learned counsel for the petitioner contended that the case of accused/ petitioner is at par with the acquitted co-accused and thus on the principle of consistency, he is entitled to bail. He argued that the evidence recorded in the trial Court would also be taken into consideration against the petitioner from which no case is made out against him. He further submitted that several persons have been charged for firing but none is specified. According to him, the abscondence of the petitioner would not come in his way because there is no other material on record to connect him with the offence and he is, therefore, entitled to bail on merits. He relied on 2001 YLR 815, 2001 YLR 2896 and 2010 PCr.LJ 340.

4. On the other hand, learned counsel for the complainant and State submitted that the F.I.R. is lodged just after thirty minutes of the occurrence and the acquittal of co-accused of the petitioner would not entitle him to bail, also on the ground that he has remained fugitive from law for a considerable long and unexplained period of seven years.

5. I have considered the arguments of the learned counsel for the parties and gone through the record.

6. I have perused the case-law produced by counsel for the petitioner which mostly relates to the abscondence of the accused, while in some cases bail was granted on the principle of consistency. In this case, the co-accused, was not granted bail but was acquitted after facing trial on merits.

7. It is true that abscondence simplicter cannot be made a ground for refusal of bail if otherwise the case is fit for bail, but in this case other materials are available on record which reasonably connects the petitioner with the commission of the offence.

8. It appears from the record that the occurrence took place on 1-10-2003 while the accused/petitioner was arrested after remaining in abscondence for above more than 7/8 years. This long and unexplained abscondence may be counted coupled with the other materials available on record against the petitioner.

9. As far as registration of case is concerned, it was registered just after thirty minutes of the commission of offence. It is true that some five persons were charged for effective firing in the F.I.R. and no body is specified, but this would not alone make the case of the petitioner arguable for the purpose of bail being a matter to be thrashed out at trial. The question of vicarious liability would also be adjudged at trial. There is ocular account of two eye-witnesses, i.e. the complainant and his brother.

10. The plea of acquittal of co-accused, namely, Ehsan, is also of no avail to the petitioner because appeal thereagainst is sub judice before this Court. Moreover, trial of the petitioner will be held independently and if trial of his acquitted co-accused is taken into account for the sake of arguments, it would amount the trial of the petitioner as a mere formality. The evidence to be recorded in trial against the accused/petitioner may be different from the one examined in the case of acquitted accused. It has been held in 1985 SCMR 382 that if a co-accused during abscondence has been acquitted on consideration of evidence led by the prosecution, the factum of abscondence would ordinarily be considered as additional evidence against the present petitioner. Further more, in the case of Awal Khan v. Zawar Gul reported in PLD 1985 SC 402, it has been held that unexplained, noticeable abscondence disentitle the accused to the concession of bail. The record in this case shows that the petitioner remained fugitive from law for about 7/8 years and proceedings under section 512, Cr.P.C. were initiated against him and completed, in consequence whereof non-bailable warrant was issued against him, but in spite of the same he remained in abscondence.

11. In short, the F.I.R. was promptly lodged wherein the petitioner is directly charged for effective firing which resulted into the killing of the deceased and just after the occurrence, he remained absconder for about 7/8 years with no plausible explanation. The acquittal of co-accused is of no help to the petitioner and he is reasonably linked with the commission of the offence which carries a capital punishment.

12. Consequently, I find no substance in this application which is hereby dismissed. H.B.T./152/P Bail refused.