Safirullah petitioner, Warder, one of the accused persons involved in case F.I.R. No, 559 registered at Police Station East Cantt. Peshawar on 5.9.1998 in respect of offences under Section 302/324/34 PPC, has been refused bail by learned Addl. Sessions Judge, Peshawar by virtue of his order recorded on 22.4.2003. The petitioner has approached this Court with the similar prayer by filing instant bail application No, 342 of 2003.
2. The prosecution story in brief is, that on 5.9.1998 Khurshid Khan (deceased) an employee in Sarhad Development Authority, Peshawar, after having finished some work in the Civil Secretariat, Peshawar, was on the way to his office alongwith his brother Irshad Khan complainant in motor Car No, NRB-188. When the motor car reached in front of the main gate of Central Prison Peshawar, Shakeel Khan, driver stopped the car owing to traffic rush. In the meanwhile, co-villagers of the deceased namely Mumtaz, Hidayat sons of Hayat Khan (absconding co-accused), Safirullah son of Daray Khan (petitioner) and Firdaus son of Aurangzeb Khan (acquitted co-accused) appeared there and started firing with "Tamachas' as a result of which Khurshid Khan was hit and yielded to the injuries on the way to Lady Reading Hospital, Peshawar. However, the complainant escaped unhurt. Said Khan, Ruhul Amin, and Shakeel Khan driver in addition to the complainant were stated to have witnessed the occurrence. Explaining the motive it was disclosed that some time prior to the occurrence one Malang son of Anwar Khan, a. relative of the accused was wounded for which the deceased was charged.
3. Bail is prayed for, inter alia, on the grounds that petitioner has been involved out of sheer doubt and suspicion on account of previous enmity between the two families; that the ocular evidence as well as the site-plan run contrary to the medical/post-mortem report; that according to the medical evidence the deceased had sustained only one injury while four persons are charged, therefore, and hence it was not certain as to which of the shots had proved effective; that four persons are alleged to have fired from both the sides of the motor car, in which the deceased and the eye witnesses were allegedly sitting at the relevant time but not a single bullet either hit the motor car or found in the motor car in question which clearly tends to suggest that occurrence has not taken place as alleged and that co-accused Firdaus Khan has already been acquitted of the charge by the trial Court which is indicative of the fact that case has been concocted and abricated against the accused. Concluding the arguments, the learned counsel raised the plea of alibi and maintained that at the relevant time the petitioner was on duty and as such the question of his participating in the offence does not arise.
4. Conversely, learned state counsel assisted by learned private counsel for the complainant opposed the bail application tooth and nail and maintained that petitioners' active participation in the occurrence being efficiently spelt out, he does not deserve the grant of bail in this case, which, undoubtedly falls within the prohibitory clause.
5. An accused would only be entitled to the discretionary relief of ail when on the tentative assessm ent of materials brought before it, the court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect the Court is debarred to hold that the case is of further inquiry entitling the accused to bail within the earnings of Section 497(2) Cr.P.C. No doubt, the deeper appreciation of vidence at bail stage is not the requirement of law pertaining to bail matters out nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively. In the present case the petitioner is nominated in the F.I.R. which was lodged without any delay. He is attributed a clear role of firing. The medical evidence and the witnesses on the spot fully support the prosecution version.
The petitioner was arrested on 31.1.2003, He remained fugitive from law for more than four years.
The mere fact that one entry wound was found on the dead body of the deceased whereas four persons have been nominated in the F.I.R. for firing, cannot be held a good ground for release of the petitioner on bail as held by this Court in Khawaja Noor petitioner vs. Mumtalah Khan and another respondents (2003 Y.L.R. 151 Peshawar). While dealing with an application for cancellation of bail in a case titled Sher Bahadur Petitioner vs. Haji Ghafar Ali Khan and another respondents (1999 P.Cr.L.J. 403 Peshawar), a Division Bench of this Court observed:- "The ground which prevailed with the Court below in admitting the accused/respondent to bail was that according to the medical evidence the deceased had sustained only one injury while two persons are charged therefor and hence, it was not certain as to which of the shots had proved effective. We are, however, not impressed by the said plea of the Court below, because the accused/respondent alongwith his co-accused has been specifically charged with the firing on the deceased in the F.I.R. as also in statements of the witnesses recorded under Sections 161 and 164 Cr.P.C. The mere fact that the allegations were general in nature and no specific injury sustained by the victim was assigned to the accused/respondent would not make the case against him one of further inquiry. Both the accused had allegedly fired shots from their kalashnikovs at the deceased as a result whereof he was injured and died and at this stage it was wholly immaterial as to whose shot had proved fatal. Be that as it may that two persons are charged for a solitary wound on the person of the deceased, but on tentative assessment of the materials so far brought on record, reasonable grounds do exist for believing that the accused/respondent had committed a non-bailable offence entailing punishment upto death or imprisonment for life."
6. As observed earlier it was on 31.1.2003 when the petitioner was arrested. The petitioner remained in hiding for more than four years. It is not denied that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence showing the conduct of the accused. I is a well established law that a fugitive from law and Courts loses, some o the normal rights granted by the procedural as also substantial law. Unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case. Zarawar Khan Applicant vs. The State and another respondents (2003 Y.L.R. 84 Peshawar).
7. In support of the bail application the plea of alibi has also been taken and it is contended that at the relevant time the petitioner was on duty and as such the question of the petitioner having participated in the occurrence does not arise. The submission is misconceived. This ground cannot be pressed into service at this stage. The alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence yet to be recorded by the trial Court. Malik Muhammad Shaheen and others vs. Arshad Siddique and two others (1997 SCM R 1829) and Bahadur vs. Muhammad Latif and others (1987 SCM R 788)..
8. As noticed above one of the accused persons namely Firdaus Khan has been acquitted in this case. It is asserted by learned counsel for the petitioner that the acquittal of Firdaus Khan has laid foundation for release of the petitioner on bail. The submission is without force. Firdaus Khan has been acquitted under Section 265-K Cr.P.C. and not on merits. This acquittal is of no help to the petitioner so far as the question of bail is concerned.
9. In the result and for the foregoing reasons, finding no substance in this application I dismiss the same and decline to grant bail to the petitioner.
10. Before parting with this order I would like to make it clear that observations made above are tentative in nature and relate to the order in hand only.