2014 PLP 437 (MLD)

ASSADULLAH KHAN CHAMKANI, J.

Said Muhammad, the complainant of case F.I.R. No. 27 dated 26-4-1989 under sections 302/34, P.P.C., registered at Police Station Wari, Dir upper, has moved this bail cancellation application against the order dated 26-11-2012 passed by learned Sessions Judge/Zila Qazi, Upper Dir Camp Court, Wari, whereby accused-respondent Muhammad Siraj was released on bail.

2. The allegation against the accused-respondent is that on 25-4-1989 at 12.30 hours he along with his acquitted co-accused Muhammad Sherin, in furtherance of their common intention, committed the murder of Muhammad Ayub by firing at him.

3. D.A.G. appearing on behalf of the State and learned counsel for the petitioner submitted that the accused-petitioner was directly charged by the complainant in the F.I.R. He further submitted that the respondent was released on bail but, later on, he deliberately absconded for sufficient long time, therefore, he has lost some of his normal rights granted under the substantive as well as procedural law but the learned trial court did not even discuss in the impugned order this aspect of the matter, so, the bail granting order is not speaking one. He further argued that there was sufficient material available on record which prima facie connect the respondent with the commission of offence, which fall under the prohibitory clause, therefore, the bail granting order is against the law, facts and material available on record, which is liable to be set aside.

4. On the other hand, learned counsel for respondent-accused supported the impugned order with the submission that there is delay in lodging of the F.I.R. He further submitted that on the same set of evidence the other co-accused has already been acquitted and there is no probability of the conviction of the respondent. He argued that the material available on record prima facie not connecting the respondent with the commission of offence, therefore, the order of grant of bail is in accordance with law and needs no interference by this Court.

5. I have considered the arguments advanced by learned counsel for parties and perused the record.

6. Admittedly, the occurrence took place on 25-4-1989. Originally, the bail was granted to the accused-respondent by the Sub-Divisional Magistrate, Wari, through a short and non-speaking order on 28-6-1989. During trial the respondent-accused went into hiding and absented himself, resultantly, learned trial court initiated proceedings under section 512, Cr.P.C. against him and his sureties under section 514, Cr.P.C. vide order dated 7-9-1995. At the conclusion of trial, the co-accused was acquitted of the charge while the present respondent, being absent, was declared proclaimed offender, vide order dated 28-9-1998. Later on, the respondent was arrested on 23-10-2012 after long 'abscondence' of seventeen (17) years. Learned trial Court in the impugned order observed that in absence of independent witness, post mortem examination and specific role, the respondent was entitled to concession of bail but did not discuss deliberate longstanding 'abscondance' of the respondent in the impugned order. The record shows that the accused-respondent had been charged directly by the complainant in his report for the murder of his son alleged therein that Naik Muhammad and Sazo ud Din had witnessed the occurrence. On tentative assessment of the case, the respondent is prima facie connected with the commission of offence falling with the prohibitory clause of section 497, Cr.P.C.

7. There are cases wherein concession of bail is refused to an absconder when the Court arrived at a conclusion on tentative assessment from the available record that 'abscondence' was wilful and noticeable, however, there are cases wherein the accused are allowed bail on making tentative assessment of the prosecution evidence and ignoring the factum of 'abscondence'. The practice of deliberate abscondance on the part of accused to wait for the result of trial of co-accused and surrender only when under-trial co-accused earned acquittal is highly deplorable and cannot be allowed. It is by now settled law that fugitive from law and Courts loses some of his normal rights granted by the procedure as well as substantive law and the unexplained 'abscondence' of the accused/ respondent disentitled him to the concession of bail, not withstanding the merits of the case. Reliance is placed on the case of Muhammad Sadiq's case (PLD 1985 SC 182). In the case in hand, the respondent went into hiding deliberately and misused the concession of bail.

8. The argument of the learned counsel for the respondent that on the same set of evidence the co-accused has already been acquitted and there is no probability of the conviction of the respondent on the same evidence, is not reasonable because the judgment of acquittal of co-accused is having no affect on the trial of present accused/respondent. Under the criminal administration of justice, the evidence recorded in absence of an accused, could not be used for his conviction. Similarly, the same also could not be used for the benefit of that accused. In this case, I have observed that the accused has remained guilty of deliberate, long and unexplained 'obscondence' and was waiting for the acquittal of his co-accused. This type of conduct of the respondent would be sufficient to disentitle him for the concession of bail. Acceptance of contention of learned counsel amounts to examining of witnesses in respondent's case as a matter of mere formality or there being no need to examine such witnesses for reason of such evidence having already been taken into consideration in previous case and such course is not permissible in law. Reliance is placed on the case of Sardar v. The State (PLD 1979 Peshawar 16). So, keeping in view the prolong abscondance, conduct of respondent and nature of crime, I am of the opinion that the accused-respondent was not entitled to the concession of bail. Consequently, this application is accepted. Resultantly, the bail granted to accused-respondent Muhammad Siraj by the learned trial Court is hereby recalled. He was taken into custody and be dealt with in accordance with law. These are the reasons of my short order announced on 9-7-2013. HBT/462/P Bail cancelled.